Rajasthan High Court - Jodhpur
Shankar Lal vs Union Of India (2024:Rj-Jd:43026) on 21 October, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:43026] (1 of 4) [CRLMB-4616/2024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 4616/2024
Shankar Lal S/o Asharam, Aged About 41 Years, R/o Biloda, Ps
Shambhupura, Dist Chittorgarh, Raj. (Lodged In Dist Jail
Chittorgarh)
----Petitioner
Versus
Union Of India, Through NCB
----Respondent
For Petitioner(s) : Mr. R.K. Charan
For Respondent(s) : Mr. K.S. Nahar, Spl. PP with
Mr. Gopal Singh
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 21/10/2024 This second application for bail under Section 483 BNSS has been filed by the petitioner who has been arrested in connection with FIR No.03/2022 registered at Police Station CBN Singoli, for offences under Sections 8/20(c), 8/25 and 8/29 of the NDPS Act.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
Learned counsel for the petitioner submitted that the co- accused Lokesh Ahir (S.B. Criminal Misc. Bail Application No.2383/2024) and Raju Acharya (S.B. Criminal Misc. Bail Application No.1899/2024) have already been enlarged on bail by this court vide order dated 21.03.2024 on the count that the Seizure Officer at the time of conducting seizure proceedings failed to follow the mandate given under standing order No.1/1988 dated 15.03.1988 issued by the NCB. Learned counsel (Downloaded on 21/10/2024 at 10:03:59 PM) [2024:RJ-JD:43026] (2 of 4) [CRLMB-4616/2024] submitted that the case of the present petitioner is not at all distinguishable from that of the co-accused who have already been enlarged on bail by this Court. Lastly, learned counsel submitted that the petitioner is in judicial custody since 28.06.2022 and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused- petitioner.
Per contra, learned Public Prosecutor has opposed the bail application. However, he was not in a position to refute the fact that the above named co-accused persons have already been enlarged on bail by this court order dated 21.03.2024.
The order passed by this Court on 21.03.2024 while granting bail to the co-accused persons namely Lokesh Ahir and Raju Acharya is reproduced herein below for ready reference:-
"These second applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with FIR No.3/2022 registered at Police Station CBN Singoli, for offences under Sections 8/20(c), 8/25 and 8/29 of the NDPS Act.
Learned counsel for the petitioners submitted that the petitioners are in custody since 28.6.2022. Learned counsel submitted that the recovery of contraband (Ganja) was made by a team of CNB from a white coloured Duster car having registration No.RJ09.CA.9001 being driven by the petitioner Raju Acharya. The petitioner and co-accused Shankarlal was arrested on the spot. Learned counsel submitted that in the present case, sample procedure was undertaken by the Seizure Officer in violation of the Standing Order No.1/1988 dated 15.3.1988 of the NCB, New Delhi.
Drawing attention of the Court towards the statements of the Seizure Officer (PW-2) recorded before the competent criminal court, learned counsel submitted that the Seizure Officer during his court statements admitted that he mixed the samples from the batches created by him of the seized contraband i.e. 206 kgs. Ganja. Learned counsel submitted that the procedure of the sampling adopted by the Seizure Officer is totally illegal and therefore, the petitioners deserve to be enlarged on bail.
Learned counsel further submitted that the petitioner Raju Acharya does not have any criminal antecedents and the petitioner Lokesh Ahir does not have any case of similar nature pending against him; the petitioners are in judicial custody, and (Downloaded on 21/10/2024 at 10:03:59 PM) [2024:RJ-JD:43026] (3 of 4) [CRLMB-4616/2024] the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioners.
Per contra, learned Public Prosecutor has vehemently opposed the arguments advanced by learned counsel for the petitioners and submitted that the sampling procedure was undertaken by the Seizure Officer in conformity with the seizure procedure provided under the Standing Orders, therefore, the present bail applications be rejected.
Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record.
The relevant portion of the Standing Order No.1/1988 dated 15.3.1988 which deals with the procedure relating to drawing the samples reads as under:
"1.7 (a) In the case of seizure of a single package/container one sample in duplicate is to 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.
(b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. kit, conclusively indicating that the packages are identical in all respect the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn."
Having considered the rival submissions, facts and circumstances of the case and after perusing the statements of the Seizure Officer recorded before competent criminal court, this Court prima facie finds that there is an apparent flaw in the manner in which the sampling procedure was undertaken by the Seizure Officer. Admittedly, in the present case, no colour test by UN kit was conducted before mixing the samples drawn from different packets of suspected Ganja. Any comment on the veracity of the sampling procedure, at this stage by this Court may prejudice the outcome of the trial pending before learned trial court. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioners on bail.
Accordingly, these bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused- petitioners- (i) Lokesh Ahir S/o Bhagwan Lal and (ii) Raju Acharya S/o Sohan Lal Acharya shall be enlarged on bail in connection with FIR No.3/2022 registered at Police Station CNB Singoli, provided each of them furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.
It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.
A copy of this order be placed in both the files." Having considered the rival submissions, facts and circumstances of the case and after perusing the order dated (Downloaded on 21/10/2024 at 10:03:59 PM) [2024:RJ-JD:43026] (4 of 4) [CRLMB-4616/2024] 21.03.2024 passed by this Court while granting bail to the co- accused persons namely Lokesh Ahir and Raju Acharya, this Court prima facie finds that the case of the present petitioner is not worse than that of the above named co-accused persons. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the second bail application under Section 483 BNSS is allowed. It is ordered that the accused-petitioner Shankar Lal S/o Asharam, arrested in connection with FIR No.03/2022 registered at Police Station CBN Singoli, 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 333-Hanuman/-
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