Rajasthan High Court - Jodhpur
Meghraj Singh vs State Of Rajasthan (2024:Rj-Jd:33937) on 13 August, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:33937]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 10051/2024
Meghraj Singh S/o Vijay Singh, Aged About 36 Years, R/o
Dhamali, P/s - Marwar Junction Dist. Pali, Rajasthan. (At Present
Lodged In Jail Pali. )
----Petitioner
Versus
State Of Rajasthan, Through Pp , Dist. Jodhpur, Rajasthan.
----Respondent
For Petitioner(s) : Ms. Sonu Rathore
Ms. Kamini Rathore
For Respondent(s) : Mr. Javed Gauri, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order 13/08/2024
1. The jurisdiction of this court has been invoked by way of filing the third 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 241/2023 2. Concerned Police Station Marwar Junction (Pali) 3. District Pali 4. Offences alleged in the FIR Sections 8/15, 18 of the NDPS Act; Sections 3/25, 4/25 of the Arms Act and Sections 16/54 of the Rajasthan Excise Act 5. Offences added, if any - 6. Date of passing of impugned 02.07.2024 order 2. His first and second bail applications being SBCRLMB
Nos.14734/2023 & 119/2024 were dismissed by this Court vide (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (2 of 9) [CRLMB-10051/2024] orders dated 06.12.2023 & 04.03.2024. While rejecting the second bail application liberty was given to the petitioner to renew the prayer after recording the statement of Seizing Officer.
3. Briefly stated the facts of the case are that on 29.10.2023 Devendra Singh, SHO, P.S. Marwar Junctoin, District Pali upon receiving a secret information that Meghraj Singh has stored huge quantity of liqour and contraband in the undergound of his residential house situated at Dhamli-Hingola road. On the basis of this information, the SHO alongwith his team reached at the spot and inquired Meghraj Singh. During search, 33 cartoons containing 48 quarters each of illegal liquor, 100 live cartridges marked KF; 38 cartridges of 12 bore rifle; musket guns and its barrels, 40 white plastic bags containing 180 quarters each, 12 kg poppy husk and 955 grams opium were recovered. Thereafter, after usual investigation, accused were taken into custody. The Seizing Officer took samples at the spot and marked them whereafter sent the same to the FSL for its chemical examination. A case was registered against the accused as mentioned above.
3. 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 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. She further submits that the accused was taken into custody on 29.10.2023 and since then she is behind the bars. She further states that the recovered contraband falls within below commercial quantity and the offence under the Excise Act and (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (3 of 9) [CRLMB-10051/2024] Arms Act are triable by Magistrate. Now, more than ten months have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be 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.
5. I have heard and considered the submissions made by both the parties, Investigating Officer and perused the challan papers alongwith the other material available on record.
6. Perusal of the record revealing that the 12 kg poppy husk and 955 grams opium were recovered contraband which fall within below commercial quantity, thus embargo contained under Section 37 of the NDPS Act does not apply and rest of the offences are triable by Magistrate. 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.
7. Further, the Seizing Officer has not took the samples in the presence of Magistrate or without doing so, the samples were sent to the FSL for detection of contraband. Not making inventory in accordance with 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 is a serious question which if decided in favour of the accused, then his (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (4 of 9) [CRLMB-10051/2024] conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty.
8. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a 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, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence."
9. In this instant matter too, the alleged contraband was seized on 29.10.2023, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (5 of 9) [CRLMB-10051/2024] investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made.
10. This Court feels that though there is embargo contained under Section 37 of the NDPS Act regarding grant of bail in mattes pertaining to commercial quantity and some others and true it is that bail can only be granted when the twin conditions mentioned in the provision are satisfied but this Court feels that expressing final opinion to the effect that there are no reasonable ground to believe that the petitioner is not guilty may stifle or abort the judicial proceeding in the midway and then there would remain nothing for the trial Court to proceed further in the matter and as such, the moment, the bail is granted by observing the above in clear and express terms, it would be imperative for the trial Court to either discharge or acquit him. The continuation of the trial whereafter would be a futile exercise at one hand and on the other hand the same would amounts to an abuse of process of law. This Court is of the view that pending investigation or pending trial if a serious legal defect is observed in the case of the prosecution, which may prove fatal to the prosecution at the time of conclusion then instead of giving a definite opinion that he is not guilty of the offence, it would be suffice if the bail application is allowed by giving reasons regarding observance of legal defect only; but not by giving a final finding on that aspect. The view of this Court is based upon the gist of the judgment passed by Hon'ble the Supreme Court in the matter of Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (6 of 9) [CRLMB-10051/2024] Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below:
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (7 of 9) [CRLMB-10051/2024] offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."
(Emphasis Supplied)
11. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more than ten months of incarceration (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (8 of 9) [CRLMB-10051/2024] pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. Thus, in the peculiar circumstances of this case, I am of this view that the embargo contained under Section 37 of the NDPS Act would not come into the way of granting bail.
12. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner 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 (Downloaded on 23/08/2024 at 09:28:34 PM) [2024:RJ-JD:33937] (9 of 9) [CRLMB-10051/2024] 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 230-Mamta/-
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