Rajasthan High Court - Jodhpur
Prakash Chand Jat vs State Of Rajasthan (2024:Rj-Jd:14647) on 20 March, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:14647]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 9588/2023
Prakash Chand Jat S/o Narayan Lal, Aged About 35 Years, R/o
Rooppura Ps Parsoli Dist. Chittorgarh Raj. (At Present Lodged At
Dist. Jail Pali)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Lokesh Mathur
For Respondent(s) : Mr. Javed Gauri, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 20/03/2024
1. The jurisdiction of this court has been invoked by way of filing an 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 89/2022 2. Concerned Police Station Sojat Road 3. District Pali 4. Offences alleged in the FIR Section 8/18 of the NDPS Act 5. Offences added, if any Section 25 & 29 of the NDPS Act 6. Date of passing of impugned 15.06.2023 order
2. The concise facts of the case as alleged in the FIR are that on 15.07.2022, Urja Ram, the SHO, Police Station Sojat Road (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (2 of 8) [CRLMB-9588/2023] received a secret information and as per which, the police team reached at Village Sirsarwada-ke-Talab and held Nakabandi there. During the Nakabandi, a motorcycle was intercepted by the police and two persons namely Gehru Ram and petitioner Prakash Chand Jat were apprehended. It is alleged that three bags of opium were recovered; the bags were emptied upon and weighed together. The total weight of the admixture was 3.024 kilograms; out of which, three 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 8/18 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.
5. Have considered the submissions made by both the parties and have perused the material available on record. (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (3 of 8) [CRLMB-9588/2023]
6. It is emanating from a perusal of material available on record that during trial, four prosecution witnesses have been examined. P.W. 4 Joga Ram, who was a member of police team admitted that the articles of three bags were mixed together and then three 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 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 (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (4 of 8) [CRLMB-9588/2023] 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, 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 (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (5 of 8) [CRLMB-9588/2023] 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 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].
(Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (6 of 8) [CRLMB-9588/2023]
8. The witness P.W. 4 Joga Ram further admitted in cross examination that when they reached at the spot, the motorcycle was lying in an abandoned condition, which was taken to the police station; both the accused i.e. the applicant Prakash Chand Jat and the other person Gehru Ram were apprehended subsequently. He candidly admitted that all the proceeding viz., seizing, collecting samples, sealing, preparation of memos were done in the police station. The above admission raises a serious question over the credibility of the allegation. The admission made above is in direct conflict with the recovery memo and in my opinion is fatal to the prosecution.
9. 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 A1, B1 and C1. 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 (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (7 of 8) [CRLMB-9588/2023] 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 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.
10. 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 (Downloaded on 12/04/2024 at 08:39:17 PM) [2024:RJ-JD:14647] (8 of 8) [CRLMB-9588/2023] his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J 38-Mamta/-
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