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Rajasthan High Court · body

2023 DIGILAW 2141 (RAJ)

Kalu Lal v. State of Rajasthan

2023-11-23

FARJAND ALI

body2023
ORDER : Farjand Ali, J. The jurisdiction of this court has been invoked by way of filing an instant applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: S. No. Particulars of the Case 1 FIR Number 122/2021 2 Concerned Police Station Rashmi 3 District Chittorgarh 4 Offences alleged in the FIR Sections 8/15 of NDPS Act. 5 Offences added, if any Sections 25 and 29 of NDPS Act. 6 Date of passing of impugned order (No. 8411/2022) 30/05/22 7 Date of passing of impugned order(1295/2022) 07/01/22 2. 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 several flaws and laches in the case of the prosecution. He submits that the samples that were drawn by the SHO were not sent for FSL within 72 hours as per the mandate of Standing Order No. 1/88 dated 15.03.1988 issued by the NCB. 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. 3. 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. 4. Have considered the submissions made by both the parties and have perused the material available on record. 5. The circumstances created by the Police team in this matter bring the recovery into doubt. A bare perusal of the acknowledgement receipt of the FSL reveals that the samples of contraband were received by the Regional Forensic Science Laboratory, Udaipur on 05.08.2021 that is after 38 days from the date when seizure was done. The seizing officer has admitted in his cross-examination that during the compliance of section 52A of NDPS Act the complainant and his legal representatives were not informed. He further admits that no certificate was issued by the Judicial magistrate to verify the authenticity of the proceedings under Section 52-A of Ndps Act. The seizing officer has admitted in his cross-examination that during the compliance of section 52A of NDPS Act the complainant and his legal representatives were not informed. He further admits that no certificate was issued by the Judicial magistrate to verify the authenticity of the proceedings under Section 52-A of Ndps Act. It is astounding as to how a police official who is a seizing officer in an NDPS case be so lax in his conduct and not sent the samples for FSL within 72 hours as stipulated in the S/O No. 1/88 dated 15.03.1988. The legal position discussed above pertaining to forwarding of samples drawn after preparation of the inventory and certification by magistrate has been reiterated by Hon'ble the Supreme Court in Simranjit Singh v. State of Punjab passed in Criminal Appeal No.1443 of 2023 (Arising out of S.L.P.(Crl.) No. 1958 of 2023) vide order dated 09.05.2023. This court is of the considered opinion that an accused cannot be allowed to walk scot-free for the sole reason that the steps were not followed one after the other but in the present case, the non-compliance of procedure is accompanied with lackadaisical approach of the investigating agency as well as long period of incarceration pending trial. There is no provision of law that mandates taking of samples at the time of seizure, however, there is no provision barring the same too if other surrounding factors align in consonance with the statutory stipulations. The personal liberty of an individual cannot be encroached upon by keeping him behind the bars for an indefinite period of time pending trial. 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. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter. 6. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter. 6. Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners as named in the cause title shall be enlarged on bail provided each of them 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 their appearance before the court concerned on all the dates of hearing as and when called upon to do so.