Rajasthan High Court - Jodhpur
Mohammad Irfan vs State Of Rajasthan (2024:Rj-Jd:19846) on 6 May, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:19846]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 1839/2024
Mohammad Irfan S/o Mohammad Noshad, Aged About 27 Years,
R/o Ichak Kalla, Ps Simriya, Dist Chatra (Jharkhand.) (Lodged In
Sub Jail, Ratangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Vikram Sharma, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 06/05/2024
1. The jurisdiction of this court has been invoked by way of filing the second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
S.No. Particulars of the Case 1. FIR Number 127/2020 2. Concerned Police Station Rajaldesar 3. District Churu 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 04.01.2024 order
2. The concise facts of the case as alleged in the FIR are that on 06.08.2020, at about 9:00 p.m. Shri Tejvant Singh, the SHO, Police Station Rajaldesar District Churu during nakabandi intercepted a vehicle bearing registration No.NL01K9664 upon (Downloaded on 08/05/2024 at 08:36:38 PM) [2024:RJ-JD:19846] (2 of 8) [CRLMB-1839/2024] which the driver of the vehicle made his escape good and the another person who is Khalasi, disclosed his name to be Mohd. Irfan was apprehended, he disclosed the name of driver as Shahbad Akhtar. Upon search of the said Cantainor, 145 bags of poppy husk got recovered and 30-30 bags were emptied upon tarapulin and weighed together and four samples were taken from 120 bags which were different in weight and after than remaining 25 bags were emptied on tarpaulin. The total weight of the admixture was 18 Quintal 84 Kg and 700 gms.; out of which, four samples were taken from the seized contraband for investigation and rest of the contraband were sealed at the spot. The accused was taken into custody; the contraband was deposited in Malkhana and after usual investigation, the accused were chargesheeted for committing an offence under Section 8/15 of the NDPS Act.
3. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and there are several flaws and laches in the case of the prosecution. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioner and he has been made an accused based on conjectures and surmises.
4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.
(Downloaded on 08/05/2024 at 08:36:38 PM) [2024:RJ-JD:19846] (3 of 8) [CRLMB-1839/2024]
5. Have considered the submissions made by both the parties and have perused the material available on record.
6. It is emanating from a perusal of material available on record that during trial, only one prosecution witness has been examined. The SHO Tejvant Singh admitted that the articles of all 145 bags were mixed together and then four samples were taken from this admixture. This Court dealing with identical issue has passed an order in the case of Ramchandra v. State of Rajasthan in S.B. Criminal Misc. 3rd Bail Application No.1162/2022 decided on 27.05.2022 wherein while dealing with a similar matter, the procedure for collection of samples as per statutory instruction, inter alia other aspects were discussed, will hold good in the present set of facts. The para No.4 of the said order is reproduced as under:-
"4. Heard learned counsel for the petitioner and learned public prosecutor. Perused the material available on record. The argument that collection of samples was not proper and in accordance with the procedure of sampling as per Standing Order No. 1/1989 seems to be worth considering. Clause 2.1 to 2.8 of the Violation Order/ Instruction No.1 of 1989 dated 13.6.1989 issued by the Government of India under Section 52 A of N.D.P.S. Act are of relevance to the present set of facts and are as follows:
2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of seizure.
2.2 All the packages/containers shall be numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the persons from whose possession the drug is recovered and a mention to this effect should invariably be made in the panchnama drawn on the spot.
2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic (Downloaded on 08/05/2024 at 08:36:38 PM) [2024:RJ-JD:19846] (4 of 8) [CRLMB-1839/2024] drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) were a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.
2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.
2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects the packages/container may be carefully bunched in lots of 10 package/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.
2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
2.7 If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample the in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
In simple words, if there were eight plastic bags marked A, (Downloaded on 08/05/2024 at 08:36:38 PM) [2024:RJ-JD:19846] (5 of 8) [CRLMB-1839/2024] B, C,...., H that allegedly contained contraband, then eight separate representative samples from each plastic bag marked A1, B1, C1,...., H1 respectively and eight separate representative samples as control samples from each plastic bag marked A2, B2, C2,....,H2 respectively should have been collected for investigation. It is an act of utmost recklessness and irresponsibility that even after collecting separate samples from each of the eight bags, the samples were again mixed together and submitted for investigation as one admixture. Since the samples were not collected in an accurate manner and the possibility of there being no contraband in any one or more of the eight bags cannot be obviated, the contraband can be assumed to be below commercial quantity and the embargo contained under Section 37 of the NDPS Act is not attracted.
In Noor Aga v. State of Punjab, reported in (2008) 3 JIC 640, Hon'ble the Supreme Court has held that when directions are issued by lawful authorities, then they take the form of legal sanction and the sub-authorities are under obligation to comply with the same. Statutory instructions have been held to be mandatory in nature by the Apex court in Union of India v. Azadi Bachao Andolan, reported in (2004) 10 SCC 1. The logical upshot of the above mentioned precedents is that there cannot be flagrant violation of rules/guidelines, such as those specified in the Standing Order No. 1/1989, and it should be incumbent on the officers of investigating agency to comply with these rules so that sanctity of physical evidence in such cases remains intact and an unfavourable reasoning is not drawn against the prosecution/agency.
Moving to the next point of consideration, i.e. fundamental right of the accused to a fair and speedy trial, it is pertinent to note that the petitioner is in custody since 26.11.2017 and as per counsel's submission, it appears that there are total of 37 witnesses, out of which only 18 have been examined till now. A detailed order has been passed by this Court in Savanta v. State of Rajasthan, S.B. Criminal Miscellaneous VII Bail Application No. 3701/2022 wherein it was held that the right of accused to speedy trial is a fundamental right granted by the Constitution of India and an undertrial prisoner cannot be kept incarcerated for an indefinite period or beyond a reasonable period of time; the same has been passed under the guiding light of landmark judgments passed by Hon'ble the Supreme (Downloaded on 08/05/2024 at 08:36:38 PM) [2024:RJ-JD:19846] (6 of 8) [CRLMB-1839/2024] Court in Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar [(1980) 1 SCC 98] and Vakil Prasad Singh v. State of Bihar [(2009) 3 SCC 355].
7. The another glaring defect which has been observed in this case would be that the samples were taken at the spot by the Seizing Officer and marked as A to E. The same samples were sent to the FSL for detection of morphine and its derivatives. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with; no inventory was prepared in the presence of a Magistrate; no samples were taken in the presence of the Magistrate and as per the mandate of the law, the samples shall be taken in the presence of a Magistrate ought to have been sent to the FSL so as to connect the accused with the alleged recovered article but having not done, a flagrant violation of the law has indeed been made by the police. In a recent judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon'ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon'ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:-
(Downloaded on 08/05/2024 at 08:36:38 PM)
[2024:RJ-JD:19846] (7 of 8) [CRLMB-1839/2024] "22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate.
In this view of the matter, the FSL report(Exhibit P-
11) is nothing but a waste paper and cannot be read in evidence."
Their appears reasonable grounds not to allow further incarceration of the petitioner. In the given circumstances, the embargo contained under Section 37 of the NDPS Act would not operate. Looking to the totality of facts and circumstances of the case and the possibility that the trial may take long time to conclude, this court deems it just and proper to enlarge the petitioner on bail.
8. This Court feels that an under trial prisoner should not be kept confined for an indefinite period for no fault of them in impeding the course of trial. A perusal of the material revealing that the trial had been commenced in this matter in the year 2020 but owing to one or the other reason, the recording of the prosecution witnesses could not be completed. It is transpiring that out of the total 20 projected prosecution witnesses, only 1 could have been examined uptill now. This Court feels that looking to the snail's pace progress of the trial, it would still take a long time to reach onto a legitimate conclusion. It is also noticed that sincere endeavors have not been made by the trial Court in proceeding with the trial to get an early culmination of the same.
(Downloaded on 08/05/2024 at 08:36:38 PM)
[2024:RJ-JD:19846] (8 of 8) [CRLMB-1839/2024]
9. Dealing with the identical issue where the trial had been protracted for unreasonable period, an elaborate discussion has been made by this Court while deciding the bail application being SBCRLMBA No.5916/2023 in the matter of Lichhman Ram @ Laxman Ram Vs. State decided on 08.02.2024.
10. Accordingly, the instant 2nd bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner, named above, shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI)J 19-Mamta/-
(Downloaded on 08/05/2024 at 08:36:38 PM) Powered by TCPDF (www.tcpdf.org)