Rajasthan High Court - Jodhpur
Kana Ram vs State Of Rajasthan (2024:Rj-Jd:22024) on 16 May, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:22024]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 4878/2024
Kana Ram S/o Sh. Rajendra Prasad Rewari, Aged About 24
Years, R/o Village Posana, Ps Udaipur Vati, Dist Jhunjhunu, Raj.
(Lodged In Dist Jail, Bhilwara)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Ms. Pragya Jain
For Respondent(s) : Mr. S.S. Rajpurohit, PP
Mr. Prakash Panwar, AGA
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 16/05/2024 This second 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.288/2021 registered at Police Station Gulabpura, Dist. Bhilwara, for the offences under Sections 8/15 and 8/25 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 co-accused Suresh (S.B. Criminal Miscellaneous 2 nd Bail Application No. 485/2024) has already been enlarged on bail by a Co-ordinate Bench of this Court vide order dated 07.05.2024. The order passed by the Co-ordinate Bench is reproduced below for ready reference:-
(Downloaded on 16/05/2024 at 08:40:16 PM)[2024:RJ-JD:22024] (2 of 6) [CRLMB-4878/2024] "1. The jurisdiction of this court has been invoked by way of filing the instant second bail application under Section 439 CrPC at the instance of accused-petitioner.
The requisite details of the matter are tabulated herein below:
S.No. Paticulars of the Case 1. FIR Number 288/20212 2. Concerned Police Station Gulabpura 3. District Bhilwara 4. Offences alleged in the FIR Section 8/15, 25 of the NDPS Act 5. Offences added, if any -
6. Date of passing of impugned 05.01.2024 order
2. The first bail application of the petitioner being SBCRLMB No.15345/2023 was dismissed as not pressed by this Court vide order dated 13.12.2023.
3. Briefly stated the facts of the case are that on 28.09.2021,Shri Satish Meena, SHO, Police Station Gulabpura submitted a Parcha Bayan alleging inter alia that on 28.09.2021 at about 8:29 a.m. during nakabandi, he along with his team stopped a Creta Car being registration No. RJ23-CC7077. The said car was being driven by petitioner Suresh, and the another person sitting by the driver side stated his name to be Kana Ram. The car was searched and total 08 bags were taken out from it, suspecting the same to be poppy husk. The total weight of the six plastic bags was 145.100 Kg. out of which, samples were taken from the seized contraband for sending the same to the FSL for its examination. The accused was taken into custody. After usual investigation, a case under Section 8/15 of the NDPS Act has been registered. Hence, the bail application.
4. 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. He further submits that the accused was taken into custody on 28.09.2021 and since then he is behind the bars. Till now out of 17 witnesses only 6 could have been examined and more than two and half years have lapsed but the trial is not going to be culminated and still it seems that a further long time shall betaken in conclusion of the same, thus, he may be enlarged on bail.
5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the (Downloaded on 16/05/2024 at 08:40:16 PM) [2024:RJ-JD:22024] (3 of 6) [CRLMB-4878/2024] bail application and submits that the present case is not fit for enlargement of accused on bail.
6. Have heard and considered the submissions made by both the parties and have perused the challan papers and the othe rmaterial available on record.
7. Perusal of the material available on record revealing that on 28.09.2021, Shri Satish Meena, SHO, Police Station Gulabpura intercepted a car and recovered 145.100 Kg poppy husk from it. He took the samples and the sent the same to the FSL for detection of morphine and its derivatives.
8. It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 28.09.2021 were sent to the FSL for chemical examination, which were not taken in the presence of the Magistrate. 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. Admittedly, no samples were taken in the presence of Magistrate whereas the samples taken at the spot were sent to the FSL. 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 evidenceon 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 reparing 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. 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, around two and half years of incarceration 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.
(Downloaded on 16/05/2024 at 08:40:16 PM)[2024:RJ-JD:22024] (4 of 6) [CRLMB-4878/2024] Muslim @ Hussain Vs.State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, 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 he is not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail application, 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.
10. Further, this Court feels that an under trial prisoner should not be kept confined for an indefinite period for no fault of them in impeding the course of trial. A perusal of the material revealing that the trial had been commenced in this matter in the year 2019 but owing to one or the other reason, the recording of the prosecution witnesses could not be completed. It is transpiring that out of the total 17 projected prosecution witnesses, only 6 witnesses could have been examined uptill now. 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.
11. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody since the year 2019, this court feels that the accused is 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. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.
12. 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."
Learned counsel submitted as per the prosecution, a police team of P.S. Gulabpura stopped a creta car having registration No.RJ23-CC-7077. The said car was being driven by the co-
(Downloaded on 16/05/2024 at 08:40:16 PM)[2024:RJ-JD:22024] (5 of 6) [CRLMB-4878/2024] accused Suresh and the petitioner was sitting besides the driver in the offending vehicle. The car was being searched and the contraband (Poppy husk/straw) weighing 145.100 Kgs was recovered.
Learned counsel further submitted that till date out of 17 cited prosecution witnesses, statements of only 6 cited prosecution witnesses have been recorded before the competent criminal court and the case of the present petitioner is not distinguishable from that of the above named co-accused person who has already been enlarged on bail.
Lastly, learned counsel submitted that the petitioner is in judicial custody since 28.09.2021 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 and submitted that a significant quantity of the contraband was recovered from the conscious/constructive possession of the present petitioner and therefore, he does not deserve to be enlarged on bail. However, he was not in a position to refute the fact that the above named co-accused person has already been enlarged on bail by the Co-ordinate Bench of this Court.
Having considered the rival submissions, facts and circumstances of the case and having gone through the case file, this Court prima facie finds that as per the prosecution, the petitioner was found sitting in the offending vehicle along with co-
accused Suresh, who has already been enlarged on bail. This (Downloaded on 16/05/2024 at 08:40:16 PM) [2024:RJ-JD:22024] (6 of 6) [CRLMB-4878/2024] Court also prima facie finds that the case of the present petitioner is not distinguishable from that of the above named co-accused person. 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 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Kana Ram S/o Sh. Rajendra Prasad Rewari arrested in connection with F.I.R. No.288/2021 registered at Police Station Gulabpura, Dist. Bhilwara, 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 15-divya/-
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