Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 1060 (RAJ)

Hem Singh S/o Heer Singh v. State Of Rajasthan

2024-08-02

FARJAND ALI

body2024
ORDER : FARJAND ALI, J. 1. The jurisdiction of this court has been invoked by way of filing the 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. Particulars of the Case 1. FIR Number 170/2022 2. Concerned Police Station Siriyari 3. District Pali 4. Offences alleged in the FIR Section 8/15 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 17.02.2023 2. His first bail application being SBCRLMB No.2865/2023 came to be dismissed as not pressed by this Court vide order dated 14.02.2024 but a liberty was afforded to the petitioner to file fresh bail application after the statement of Seizing Officer is recorded. 3. Briefly stated the facts of the case are that on 09.08.2022 Hamir Singh, SHO, Police Station Siriyari, District Pali received a secret information regarding illegal transportation of the contraband. He along with his team during nakabandi tried to stop an Ertiga Car bearing registration No.RJ15 UA2504 and the driver of the vehicle tried to escape his good from the spot but was apprehended, who disclosed his name as Hem Singh. Upon search, four plastic bags of poppy husk weighing 85 kg were recovered. Thereafter, the petitioner was arrested and sent to the judicial custody. The Seizing Officer took samples at the spot and marked them whereafter sent the same to the FSL for its chemical examination. After usual investigation, a case under Section 8/15 of the NDPS Act has been registered against the petitioner. 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 09.08.2022 and since then he is behind the bars. Now, one and half years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. Now, one and half years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken 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 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, Investigating Officer and have perused the challan papers and the other material available on record. 7. Perusal of the record revealing that on eight occasions Seizing Officer was called by the trial Court but he did not turn up for recording his statement. If the Investigator/Prosecutor who prepared the seizure memo does not have interest to prosecute the case and keeping trust upon him an accused has been denied bail and is being kept under confinement for a longer period; for the sole reason that an officer who prepared Seizure Memo does not appear in the Court to substantiate charge or to verify or support the Seizure Memo made by him, in that situation the detention of an accused would be justifiable is a serious question to ponder. If an accused denied grant of bail on the basis of the allegation of a Seizing Officer then it becomes imperative upon the said officer to honor the process of law issued against him for recording his statement before the trial Court so that his statement can be recorded and he can be tested through cross examination or re-examination. Here, in the present case, summon and warrants were issued against the Seizing Officer on more than half dozen occasions for the purpose of recording his statement before the trial Court but surprisingly, the officer has not turned up for doing so and on the other hand, it can be assumed that he might be working somewhere else in official capacity. There may be two things, one that the officer is not paying attention towards the summons/warrants issued by the Court and is not having respect for it and on the other hand, it can be presumed that he is not interested for recording his statement. There may be two things, one that the officer is not paying attention towards the summons/warrants issued by the Court and is not having respect for it and on the other hand, it can be presumed that he is not interested for recording his statement. Summoning of witnesses on eight occasions by a Sessions Judge and in a brazen defiance in not turning up and not honoring the Court process reflects obnoxious and contumacious behavior of the officer concerned. 9. Now, coming to the next question that whether due to obnoxious or contumacious behavior of an officer, incarceration of an accused can be prolonged for no fault of him. It would be worthwhile to mention here that the application for bail moved on behalf of the accused was dismissed by this Court vide order dated 14.02.2024 while giving him liberty to renew the prayer after statement of Seizing Officer is recorded in the trial for which this Court issued some directions to the trial Court to record the statement of Seizing Officer on priority basis so that the arguments raised on behalf of the defence regarding legality and correctness of the Seizure Memo can be tested through cross-examination of the Seizing Officer and whereafter the same can be taken into consideration by this court for the justifiable disposal of the bail application but when the endevaors were made for recording the statement of particular witnesses despite several opportunities, the same could not be fructified; in such situation, if the confinement of the accused who is incarcerated for around a year and further allowed to be continued for the sole reason that the witness has not appeared before the trial Court then certainly, it would be detrimental to the interest of the accused and the same would infringe his fundamental right. Here, in this case, the longevity of the detention of the accused is not warranted considering the gravity of the charge or the bar of the statutory provision provided under the law but the longevity of confinement of the accused depending upon the obstinacy of an officer and in my firm opinion, the same is not permissible. 10. Perusal of the record revealing that the mandate provided under Section 52-A of the NDPS Act for taking samples in the presence of Magistrate has not been complied with. 10. Perusal of the record revealing that the mandate provided under Section 52-A of the NDPS Act for taking samples in the presence of Magistrate has not been complied with. Not making inventory in accordance with 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 is a serious question which if decided in favour of the accused, then his conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty. 11. 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 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 P11) is nothing but a waste paper and cannot be read in evidence.” 12. In this instant matter too, the alleged contraband was seized on 09.08.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 13. In this instant matter too, the alleged contraband was seized on 09.08.2022, and Section 52-A of NDPS Act has not been complied with after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made. 13. This Court feels that though there is embargo contained under Section 37 of the NDPS Act regarding grant of bail in mattes pertaining to commercial quantity and some others and true it is that bail can only be granted when the twin conditions mentioned in the provision are satisfied but this Court feels that expressing final opinion to the effect that there are no reasonable ground to believe that the petitioner is not guilty may stifle or abort the judicial proceeding in the midway and then there would remain nothing for the trial Court to proceed further in the matter and as such, the moment, the bail is granted by observing the above in clear and express terms, it would be imperative for the trial Court to either discharge or acquit him. The continuation of the trial whereafter would be a futile exercise at one hand and on the other hand the same would amounts to an abuse of process of law. This Court is of the view that pending investigation or pending trial if a serious legal defect is observed in the case of the prosecution, which may prove fatal to the prosecution at the time of conclusion then instead of giving a definite opinion that he is not guilty of the offence, it would be suffice if the bail application is allowed by giving reasons regarding observance of legal defect only; but not by giving a final finding on that aspect. The view of this Court is based upon the gist of the judgment passed by Hon’ble the Supreme Court in the matter of Mohd Muslim @ Hussain V. State (NCT OF DELHI) 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, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. 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, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below: “18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to -in cases when accused of offences enacted under special laws – be balanced against the public interest. 19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.” (Emphasis Supplied) 14. 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 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. Muslim @ Hussain (Supra) 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 they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, 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. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are 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. Thus, in the peculiar circumstances of this case, I am of this view that the embargo contained under Section 37 of the NDPS Act would not come into the way of granting bail. 15. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner 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.