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2023 DIGILAW 1868 (RAJ)

Narain Lal S/o Daya Ram Jat v. State of Rajasthan

2023-10-04

KULDEEP MATHUR

body2023
ORDER : 1. This 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. 180/2022 registered at Police Station Bhadesar, District Chittorgarh for the offences under Sections 8/15 and 8/29 of the NDPS Act. 2. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 3. Learned counsel for the petitioner submitted that as per prosecution, on 08.11.2022, the SHO, Police Station Bhadesar, District Chittorgarh flagged down a car bearing registration No. GJ-08-BS-6609. Learned counsel further submitted that two persons were sitting in the car, who on seeing the police party, tried to flee away from the spot. Learned counsel submitted that as per prosecution, one person namely Narayan S/o Shankar Lal Jat was apprehended by the police on the spot however, the petitioner was successful in fleeing away from the place. Learned counsel submitted that after observing mandatory formalities, the police team recovered contraband (poppy husk/poppy straw) weighing 134 kg. from the offending vehicle. 4. Learned counsel submitted that the petitioner has been falsely roped in the present case. Learned counsel submitted that recovery of contraband was made on 08.11.2022, the sample of contraband were sent to the FSL only on 15.11.2022 i.e. after seven days of the alleged recovery; that the samples have been sent to the FSL after 72 hours of the seizure, whereas as per Clause 13 of Standing Order No. 01/88 issued by the Narcotic Control Bureau, the samples are required to be sent for FSL examination within 72 hours of the seizure. It was submitted that in the present case, the samples were sent beyond the 72 hours period and thus, the possibility of samples being tampered with cannot be ruled out. Learned counsel submitted that co-accused-Narayan S/o Shankar Lal Jat who was arrested by police on the spot has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 22.06.2023. Learned counsel submitted that the case of the present petitioner is not distinguishable from that of the co-accused-Narayan S/o Shankar Lal Jat who has already been enlarged on bail. 5. Learned counsel submitted that the case of the present petitioner is not distinguishable from that of the co-accused-Narayan S/o Shankar Lal Jat who has already been enlarged on bail. 5. Learned counsel submitted that the petitioner was not arrested on the spot and the contraband greater than was not recovered from conscious possession of the petitioner; challan against the petitioner has already been filed; the petitioner is in judicial custody and the trial of the case will take sufficiently long time. 6. On these grounds, he implored the court to enlarge the petitioner on bail. 7. The order dated 22.06.2023 passed in S.B. Criminal Misc. Bail Application No. 7644/2023 is reproduced for ready reference: “1. The prayer made in this bail petition filed under Section 439 of the Code of Criminal Procedure (for short “the Code”) is for grant of bail in connection with crime registered pursuant to First Information Report Number 180/2022 of Police Station Bhadesar, District Chittorgarh in respect of offences punishable under Sections 8/15 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as “the NDPS Act”). 2. Heard the arguments advanced by learned counsel for the applicant, learned public prosecutor and carefully perused the en-tire material available in case diary. 3. The accusation against the petitioner-accused is that S.H.O. Shankar Lal Rao of Police Station Bhadesar, District Chittorgarh, on 08.11.2022 along with other police officials was on patrol duty for checking crimes at the road leading from Bhadesar to Mandfiya. A check post was set-up besides the road. It is alleged that at about 01.30 PM, a car bearing registration number GJ-08-BS-6609 came at a very high speed which was stopped, in which 2 persons were aboard. Seeing the police party, the driver tried to reverse the car but failed. He got down from the car and fled away. The other person in the car was apprehended, on being asked the name and address, he disclosed his name as Narayan S/o Shankarlal and the name of the fleeing person as Narayan S/o Dayaram. After due formalities, the police team proceeded to search the vehicle from which, 134 Kgs. of poppy-straw was recovered. 4. After investigation, charge-sheet was filed against petitioner-accused and investigation has been kept pending against other co-accused Narayan S/o Dayaram and Ratan Lal under section 173(8) of the criminal Procedure Code. 5. After due formalities, the police team proceeded to search the vehicle from which, 134 Kgs. of poppy-straw was recovered. 4. After investigation, charge-sheet was filed against petitioner-accused and investigation has been kept pending against other co-accused Narayan S/o Dayaram and Ratan Lal under section 173(8) of the criminal Procedure Code. 5. Petitioner Narayan S/o Shanker Lal Jat was arrested on 08.11.2022 since then, he is in custody and has approached this Court by way of this application for bail preferred under Section 439 Cr.P.C. 6. Learned counsel appearing for the accused has argued that there was delay in sending the samples of alleged contraband to the laboratory. As per record of the charge-sheet, the recovery of the poppy-straw was made on 08.11.2022 and the packets of sample were received in the laboratory only on 15.11.2022 i.e. after 7 days of the alleged recovery; that the samples have been sent to the FSL after 72 hours of the seizure whereas as per Clause 13 of Standing Order No. 01/88 issued by the Narcotic Control Bureau, the samples were required to be sent to FSL for testing within 72 hours of seizure to maintain the reliability of the samples. In the present case, the said mandatory direction has not been complied with, therefore, the possibility of tampering with the samples cannot be ruled out. It is further contended that there is no such document on the record that can explain the reasons for this delay, therefore, the possibility of change in the sample cannot be ruled out. It is further submitted that investigation is complete and the petitioner has already been in custody since 08.11.2022. There is no other case against the petitioner. Reliance has been placed on the decision of State of Uttar Pradesh vs. Hansraj @ Hansu, 2019 (1) CJ (Cri.) 93 rendered by Hon’ble the Supreme Court. 7. Learned counsel for the State has opposed the grant of bail but he is not in a position to controvert the above mentioned date of recovery of contraband and date of receipt issued by the FSL. It is argued that the petitioner is involved in drug peddling. The recovery from him is of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. He thus craves rejection of the petitioner's bail application. 8. The petitioner has been in custody for sufficient period. It is argued that the petitioner is involved in drug peddling. The recovery from him is of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. He thus craves rejection of the petitioner's bail application. 8. The petitioner has been in custody for sufficient period. After completion of investigation, the charge sheet has already been filed. Trial is likely to consume time and no useful purpose would be served by keeping him in detention for an indefinite period. The petitioner is not involved in any other case under the NDPS Act. The point raised regarding delay in sending the sample to FSL and its consequences is a matter of trial. However, in the present case sufficient mitigating circumstances are made out to extend the concession of bail to the petitioner in view of decision of State of Uttar Pradesh vs. Hansraj @ Hansu, 2019 (1) CJ (Cri.) 93. 9. Keeping in view the above facts and without commenting upon the merits of the case, this Court feels that the accused has available to him, substantial ground so as to question the case of the prosecution and restriction imposed by Section 37 of the NDPS Act are duly satisfied. Therefore, I deem this to be a fit case for grant of regular bail to the petitioner. 10. Consequently, the present bail application is allowed and it is directed that the accused-petitioner Narayan S/o Shankar Lal Jat, arrested in connection with the F.I.R. No. 180/2022, registered at Police Station Bhadesar, District Chitrtograrh shall be released on bail provided he furnishes a personal bond and two surety bonds of sufficient amount to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C. in future.” 8. Per contra, learned Public Prosecutor has vehemently opposed the bail application. Per contra, learned Public Prosecutor has vehemently opposed the bail application. However, he was not in a position to refute the fact that above-named co-accused person has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 22.06.2023. 9. Having considered the rival submissions, facts and circumstances of the case, so also the fact that above-named co-accused person has already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 22.06.2023, this Court without expressing any opinion on merits/demerits of the case deems it just and proper to enlarge the petitioner on bail. 10. Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner-Narain Lal S/o Daya Ram Jat arrested in connection with F.I.R. No. 180/2022 registered at Police Station Bhadesar, District Chittorgarh 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.