Rajasthan High Court - Jodhpur
Banka Ram vs State Of Rajasthan (2024:Rj-Jd:6498) on 8 February, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:6498]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 16233/2022
Banka Ram S/o Nand Ram Jat, Aged About 32 Years, R/o
Peeroniya Godaro Ki Dhani Chhotu P.S. RGT Nagar Dist. Barmer.
(Presently Lodged In Dist. Jail Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through the P.P.
----Respondent
For Petitioner(s) : Mr. Bhoop Singh Choudhary.
For Respondent(s) : Mr. Shrawan Kumar, P.P.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 08/02/2024 This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.04/2022, registered at Police Station Vijaypur, District Chittorgarh, for offences under Section 8/15 of the NDPS Act and Section 3/25 of the Arms Act.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
Learned counsel for the petitioner at the outset submitted that the petitioner was apprehended in the intervening night of 17.01.2022 and 18.01.2022, on the allegation that he was transporting the contraband (poppy husk / straw) weighing 10 quintals 2 kgs 500 gms in an unnumbered Isuzu Loader vehicle.
(Downloaded on 08/02/2024 at 08:49:06 PM)[2024:RJ-JD:6498] (2 of 6) [CRLMB-16233/2022] Learned counsel for the petitioner submitted that co-accused namely Suresh who was arrested by the investigating agency on spot with the petitioner, has already been enlarged on bail by a coordinate Bench of this Court vide order dated 02.02.2024 in Criminal Misc. 2nd Bail Application No.9850/2023. The order dated 02.02.2024 passed by a coordinate Bench of this Court enlarging the co-accused Suresh on bail, is reproduced hereinbelow for ready reference:-
"1. Present bail application under section 439 of the Code of Criminal Procedure is for grant of regular bail in case bearing FIR No.4/2022 under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") and under Section 3/25 of Arms Act registered at Police Station Vijaypur, District Chittorgarh. Earlier, petitioner made endeavor for seeking bail by way of filing first bail application but the same was withdrawn.
2. According to the case spelled out in the FIR, the petitioner was apprehended in the intervening night of 17.01.2022 and 18.01.2022, on the allegations that during a barricading in the Manakpura area of Police Station Vijaypur, District Chittorgarh, an Isuzu loader vehicle without a registration number, approaching from the Kanera side was signaled to stop. In response, the driver accelerated the vehicle, causing it to collide with a stone wall and overturned. Two individuals alighted from the vehicle and attempted to flee. Upon apprehension and inquiry about their names and addresses, they identified themselves as Suresh Jat and Banka Ram. A subsequent search of the vehicle revealed 10 quintals 2 kgs 500 gms of poppy straw. After due investigation charge-sheet was filed in the competent Court and the trial is at evidence stage.
3. Learned counsel representing the petitioner vehemently urged that after withdrawal of the first bail application, statements of four witnesses including Seizure Officer and eye witnesses have already been recorded. He has drawn the attention of the Court towards the statements made during the cross-examination by Seizure Officer Bhagwan Singh (PW-4) and in light of the admissions made, he argued that petitioner is entitled to bail based on the violation of legal provisions regarding the method (Downloaded on 08/02/2024 at 08:49:06 PM) [2024:RJ-JD:6498] (3 of 6) [CRLMB-16233/2022] of sampling and the time frame for sending the samples to the FSL.
4. It is further argued that independent eye witnesses have not supported the seizure proceedings; that co-accused Chetan Ram and Anil Kumar has already been enlarged on bail and the petitioner too deserves the same indulgence. With the aforesaid submissions, it was prayed that the present petition be allowed and petitioner may be enlarged on bail.
5. From the other side, learned Public Prosecutor for the State has strongly objected the submissions made by learned counsel for the petitioner and submitted that the Investigating Officer had collected overwhelming evidence in the case which would prima-facie point towards the guilt of the accused. He would contend that points raised by petitioner's side are factual issues which cannot be addressed at this stage and ought to be determined only after trial; that petitioner is indulged in the illegal trade of narcotics; that keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency, rather he needs to be dealt with severely; that contraband of commercial quantity has been seized from the accused; that release of accused will hamper the trial; that the restrictions of Section 37 of the N.D.P.S. Act clearly operate against the petitioner. He thus, prayed that in the facts of the present case, it is expedient that accused be kept in the custody.
6. This Court has carefully perused the record as well as considered the submissions made by learned counsel for the parties.
7. I am aware of the fetters imposed by Section 37 of the Act but having regard to the facts of the case and taking into account totality of circumstances, in my considered opinion, the submissions made by learned counsel for the petitioner cannot be completely overlooked, particularly the fact that the investigating agency had taken samples of contraband without taking recourse to Section 52A of the NDPS Act. In the case of Simranjeet Singh Vs. State of Punjab 2023 (3) Crimes (SCC) 168, the Apex Court has observed that drawing of samples from the contraband recovered at the time of seizure is not in conformity with the law laid down in the case of Union of India Vs. Mohanlal & Ors (2016) 3 SCC 397 and the same creates a serious doubt about the prosecution's case that substance recovered was a contraband.
8. Section 52A of the Act contemplates that when any narcotic drug has been seized and forwarded to the officer-in-charge of the nearest police station under (Downloaded on 08/02/2024 at 08:49:06 PM) [2024:RJ-JD:6498] (4 of 6) [CRLMB-16233/2022] Section 53, such officer shall prepare an inventory of such narcotic drug, containing all details of that narcotic drug. The officer is then required to make an application to any Magistrate for the purpose of allowing the drawing of representative samples of such drugs in the presence of such Magistrate and certifying the correctness of samples so drawn.
9. While addressing the scope of Section 52A of the Act, the Hon'ble Supreme Court, in the case of Mangilal (supra), held that Sub-section (2) of Section 52A of the NDPS Act mandates the competent officer to prepare an inventory of narcotic drugs recovered. This has to be followed by an appropriate application to the Magistrate concerned. Such an application can be filed for any one of the aforementioned three purposes, with one of them being the purpose of drawing samples in the presence of a Magistrate for the certification of samples. The objective behind this provision is to introduce an element of supervision by the Magistrate in the process of taking samples. Therefore, when there is non- compliance with Section 52A of the NDPS Act, and the certification of a Magistrate is lacking, any sampling would not constitute primary evidence. The evident rationale behind this provision is to ensure fairness in the investigative process. Section 52A of the Act is a mandatory rule of evidence that necessitates the physical presence of a Magistrate, followed by an order facilitating his approval for certifying the samples drawn.
10. In the case of Mohanlal (supra), it was held that as soon as the seizure is conducted and the contraband forwarded to the officer-in-charge of the police station or the empowered officer, the said officer is duty-bound to approach the Magistrate for various purposes, including obtaining permission to draw representative samples in the presence of the Magistrate. Subsequently, these samples would be listed, and the correctness of the samples drawn would be certified by the Magistrate.
11. There is no provision in the Act that mandates taking of sam- ples at the time of seizure itself. The question of drawing of sam- ples at the time of seizure, which often takes place in the absence of the Magistrate, does not arise in the above scheme of things. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
12. In light of the above pronouncements of the Hon'ble Apex Court, I have gone through the evidence of the seizure officer Bhagwan Singh, in which he deposed that samples were drawn immediately after the seizure, in the absence of a Magistrate.
(Downloaded on 08/02/2024 at 08:49:06 PM)[2024:RJ-JD:6498] (5 of 6) [CRLMB-16233/2022]
13. Prima facie, the act of the seizure officer in drawing samples from the contraband drug at the time of seizure is not in conformity with the law laid down in the above- mentioned cases. This, prima facie, casts doubt on the prosecution's assertion that the substance recovered was contraband. Independent eye witnesses have also not supported the seizure proceedings. The petitioner is in custody for the last 24 months and statements of star- witnesses have already been recorded during the trial wherein the aforementioned facts have been come on record as evidence.
14. So viewed, I do not intent to go into the merits of the matter and say no more, except that the conditions of Section 37 of the Act should be taken to be satisfied for the purpose of anesthetizing the incarceration, forasmuch this court feels that the accused has available to him, substantial grounds so as to question the prosecution case and ordering restoration of liberty to the accused on bail.
15. In this background without commenting any opinion on the merits of the case and having regard to the entirety of the facts and circumstances of the case no useful purpose will be served by keeping the petitioner in further incarceration therefore, I am in- clined to grant indulgence of bail to the petitioner.
16. Resultantly, the second bail application is allowed. It is ordered that the accused-petitioner Suresh S/o Tara Ram Jat in F.I.R. No.4/2022 Police Station Vijaypur, District Chittorgarh shall be released on bail; provided he furnishes a personal bond of Rs. 1,00,000/- and two surety bonds of Rs. 50,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so and if not required by Jail Authorities in any other case. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of his all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future."
Learned counsel for the petitioner further submitted that the case of present petitioner is not at all distinguishable from that of co-accused Suresh, who has already been enlarged on bail. The (Downloaded on 08/02/2024 at 08:49:06 PM) [2024:RJ-JD:6498] (6 of 6) [CRLMB-16233/2022] petitioner is in judicial custody since 17.01.2022 and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.
Learned Public Prosecutor has opposed the bail application.
However, he was not in a position to refute the fact that co-
accused namely Suresh who was arrested by the investigating agency on spot with the petitioner, has already been enlarged on bail by a coordinate Bench of this Court.
Having considered the rival submissions, facts and circumstances of the case, so also keeping in view the fact that case of present petitioner is not distinguishable from that of the above named co-accused who has already been enlarged on bail, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the bail application under Section 439 Cr.P.C.
is allowed. It is ordered that the accused-petitioner Banka Ram S/o Nand Ram Jat arrested in connection with F.I.R.
No.04/2022, registered at Police Station Vijaypur, District Chittorgarh, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.
(KULDEEP MATHUR),J 2-Prashant/-
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