Rajasthan High Court - Jodhpur
Kanaram vs State Of Rajasthan (2024:Rj-Jd:32142) on 2 August, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:32142]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 9860/2024
Kanaram S/o Baggaji @ Bhagaji, Aged About 20 Years, R/o
Bedawal Falla, Arnawat, Police Station Salumbar, District
Salumbar (Raj.)
(Presently Lodged In District Jail, Dungarpur)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Ashok Khilery
For Respondent(s) : Mr. B.R. Bishnoi, P.P.
HON'BLE MR. JUSTICE FARJAND ALI
Order 02/08/2024
1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
S. Particulars of the Case
No.
1. FIR Number 434/2023.
2. Concerned Police Station Bichiwada.
3. District Dungarpur.
4. Offences alleged in the FIR U/Sec. 8, 15, 18 of NDPS Act.
5. Offences added, if any U/Sec. 29 of NDPS Act.
6. Date of passing of 31.07.2024.
impugned order
2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the (Downloaded on 02/08/2024 at 10:04:55 PM) [2024:RJ-JD:32142] (2 of 8) [CRLMB-9860/2024] 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.
3. Learned counsel for the petitioner further submits that the co-accused person viz. Anil has already been enlarged on bail by this Court vide order dated 26.07.2024 passed in SBCRLMB No.9516/2024. He further submits that case of the petitioner is not distinguishable with that of co-accused person, who has already been enlarged on bail.
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. He is not in a position to dispute the fact that the above named co-accused person has already been enlarged on bail by this Court and the case of the petitioner is not distinguishable from that of co-accused.
5. I have considered the submissions made by both the parties and have perused the material available on record.
6. The co-accused person viz. Anil has already been enlarged on bail by this Court vide order dated 26.07.2024 passed in SBCRLMB No.9516/2024. The order dated 26.07.2024 is being reproduced hereunder :-
"1. The jurisdiction of this court has been invoked by way of filing an instant application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:(Downloaded on 02/08/2024 at 10:04:55 PM)
[2024:RJ-JD:32142] (3 of 8) [CRLMB-9860/2024] S.No. Particulars of the Case 1. FIR Number 434/2023
2. Concerned Police Station Bicchiwara
3. District Dungarpur
4. Offences alleged in the FIR Sections 8/15 & 8/18 of the NDPS Act
5. Offences added, if any Section 8/29 of the NDPS Act
6. Date of passing of 03.05.2024 impugned order
2. The second bail application being SBCRLMB No.5875/2024 came to be dismissed by this Court vide order dated 16.05.2024 with liberty to the petitioner to file afresh after the statement of prosecution witness Seizing Officer is recorded in trial. Now, Seizing Officer has been examined, hence the present third bail application is filed.
3. The concise facts of the case as alleged in the FIR are that on 04.11.2023, a secret information was furnished to SHO Madan Lal that a Delhi passing car is standing in the parking area of Pandit Hotel, Bhuwali and illegal drug (poppy husk) is being sold by the persons sitting therein. On the basis of said information, SHO along with him team reached at the spot and conducted search. Four plastic bags weighing 1200 gms containing puppy husk were recovered; they were mixed together in a single bag and marked as 'A'. A search was also carried out on the counter of the Dhaba wherefrom a black poly bag carrying 36 boxes filled with opium were recovered.
The cumulative weight of all these boxes comes to 584 grams and the same were marked as 'B'. Another yellow bag wherein poppy husk weighing 21.440 kgs was recovered and the same was marked as 'C'. One pink bag was also found in which 50 pouches were recovered. They were filled with poppy husk and the weight of each pouch was 125 gms meaning thereby when these pouches were weighed together, it comes to 6.460 kgs which was marked as 'D'. Another yellow plastic bag carrying 26 pouches of poppy husk were recovered and weight of the each was 125 gms and all 26 pouches weighed together it comes to 3.320 kgs. They were marked as 'E'. Another black bag in which 121 pouches of poppy husk weighing 250 gms each were recovered; they were of 30.560 kgs in whole. One more black plastic bag containing 19.580 kgs poppy husk was recovered and the same was marked as 'G'. In all, 584 grams opium and 82.560 kgs poppy husk were recovered. Further, (Downloaded on 02/08/2024 at 10:04:55 PM) [2024:RJ-JD:32142] (4 of 8) [CRLMB-9860/2024] 426 empty plastic boxes along with coloured packing poly bags, weighing machine and stapler for packing were also recovered from the spot.
4. It is alleged that all the recovered bags were emptied and weighed together. The total weight of the admixture was 82.560 kilograms; out of which, some samples were taken for its chemical examination and rest of the contraband was sealed at the spot. The accused were taken into custody; whereafter, the contraband was deposited in Malkhana and after usual investigation, the accused were chargesheeted for committing an offence under the NDPS Act as stated above.
5. 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.
6. 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.
7. Have considered the submissions made by both the parties and have perused the material available on record.
8. It is emanating from a perusal of material available on record that till now, only one prosecution witness has been examined. P.W.1 Madan Lal, SHO admitted that no samples were taken from each of the recovered articles whereas they were mixed together and then the samples were taken from the 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 (Downloaded on 02/08/2024 at 10:04:55 PM) [2024:RJ-JD:32142] (5 of 8) [CRLMB-9860/2024] 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 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 (Downloaded on 02/08/2024 at 10:04:55 PM) [2024:RJ-JD:32142] (6 of 8) [CRLMB-9860/2024] 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, 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 (Downloaded on 02/08/2024 at 10:04:56 PM) [2024:RJ-JD:32142] (7 of 8) [CRLMB-9860/2024] Supreme 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].
9. He further submits that the seizing officer had not informed about the compelling reasons for which they conducted search and seizure after sunset which is mandatory under Section 42 of NDPS Act and thus, the entire process of recovery stands vitiated on this count because of non- compliance of Section 42 of NDPS Act which raises a serious question over the credibility of the allegation.
10. 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 'H' and 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:-
"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, (Downloaded on 02/08/2024 at 10:04:56 PM) [2024:RJ-JD:32142] (8 of 8) [CRLMB-9860/2024] 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.
11. Accordingly, the instant 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."
7. The feature of this case is not distinguishable from the case of co-accused Anil, thus, on the ground of parity, to maintain judicial discipline and consistency and considering the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner in the present matter.
8. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title 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 Abhishek Kumar S.No.299 (Downloaded on 02/08/2024 at 10:04:56 PM) Powered by TCPDF (www.tcpdf.org)