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Rajasthan High Court · body

2025 DIGILAW 479 (RAJ)

Shantilal v. State of Rajasthan

2025-02-20

FARJAND ALI

body2025
ORDER : 1. The jurisdiction of this court has been invoked by way of filing an 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 559/2023 2. Concerned Police Station Chittorgarh 3. District Chittorgarh 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 26.02.2024 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 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. I have heard and considered the submissions made by both the parties and perused the material available on record. 4.1. Perusal of the record revealing that the petitioner was arrested in the month of November 2023 for having possession of 134 kg poppy husk. His previous bail application was dismissed by this Court vide order dated 06.05.2024 passed in SBCRLMB No.2838/2024 on the grounds of gravity of charge and fetter contained under Section 37 of the NDPS Act. The other grounds with regard to flouting the rules of 3, 8, 9 & 13 of the Rules of 2022. It would be worthwhile to mention here that by virtue of powers given under Section 52-A r.w. Section 76 of the NDPS Act, the Central Govt. Department of Finance issued a Gazette Notification dated 23.12.2022 regarding classification, seizing, sealing, storing, taking samples of the contraband etc. called as Narcotic Drugs and Psychotropic Substances (seizure, search, sampling and disposal), Rules 2022 (hereinafter referred as ‘the Rules of 2022’). The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:- 3. Classification of seized material. – (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately. The said Rule came into force from 23.12.2022. It would be relevant to reproduce certain provisions, which are as under:- 3. Classification of seized material. – (1) The narcotic drugs, psychotropic substances and controlled substances seized under the Act shall be classified based on physical properties and results of the drug detection kit, if any, and shall be weighed separately. (2) If the narcotic drugs, psychotropic substances and controlled substances are found in packages or containers, such packages and containers shall be weighed separately and serially numbered for the purpose of identification. (3) All narcotic drugs, psychotropic substances and controlled substances found in loose form shall be packed in tamper proof bag or in container, which shall be serially numbered and weighed and the particular of drugs and the date of seizure shall also be mentioned on such bag or container: Provided that bulk quantities of ganja, poppy straw may be packed in gunny bags and sealed in such way that it cannot be tempered with: Provided further that seized concealing material such as trolley bags, backpack and other seized articles shall be sealed separately. (4) The classification, weighing, packaging and numbering referred to in this sub-rule shall be done in the presence of search witnesses (Panchas) and the person from whose possession the drugs and substances was recovered and a mention to this effect shall invariably be made in the panchnama drawn on the spot of seizure. (5) The detailed inventory of the packages, containers, conveyances and other seized articles shall be prepared and attached to the panchnama. 6. ……… 7. …….. 8. Application to Magistrate. – After the seized material under the Act is forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5. 9. Samples to be drawn in the presence of Magistrate. – After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said sub-section. 10.…….. – After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said sub-section. 10.…….. 11.…….. 12.…….. 13. Despatch of sample for testing . – (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay. (2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6. (3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer. A combined reading of Rules 3, 8, 9 & 13 of the Rules of 2022 manifesting that after seizure of the contraband, the officer has to move an application to the Magistrate and whereafter, the samples are supposed to be taken in his presence and whereafter the verified samples are supposed to be sent to the Forensic Laboratory for the purpose of detection of any Narcotic Drugs and Psychotropic Substance in the seized article. Ostensibly, no such task has been undertaken in this case and thus, it would be a serious question of law as to whether the FSL report of the samples taken from the spot can be treated as a decisive piece of evidence to substantiate the charge so as to punish him under the NDPS Act. 4.2. Further, there are total 16 witnesses projected by the prosecution, but the order sheet submitted for perusal of the Court revealing that despite repeated issuance of process, the officers are not turning up for recording of their statement. The non-appearance of the arresting officers raises concerns regarding the progress of the trial. The purpose of the trial is to determine the guilt or innocence of the accused based on proper legal proceedings. The non-appearance of the arresting officers raises concerns regarding the progress of the trial. The purpose of the trial is to determine the guilt or innocence of the accused based on proper legal proceedings. If the very police officers who arrested the petitioner fail to appear before the Court for recording of evidence, the prolonged incarceration of the accused cannot be justified indefinitely on this ground alone. 4.3. While the Court acknowledges the stringent conditions under Section 37 of the NDPS Act, it is equally imperative to uphold the right to a speedy trial, which is enshrined under Article 21 of the Constitution of India. Inordinate delay in the trial due to non- cooperation of the prosecution witnesses cannot be a reason to continue the petitioner’s detention. 5. It is nigh well settled law that at a preconviction stage; bail is a rule and denial from the same should be an exception. The purpose behind keeping an accused behind the bars during trial would be to secure his presence on the day of conviction so that he may receive the sentence as would be awarded to him. Otherwise, it is the rule of Criminal Jurisprudence that he shall be presumed innocent until the guilt is proved. 6. Considering the unexplained delay in the trial, the prosecution’s failure to ensure the presence of key witnesses, and the fact that further incarceration without trial would be unjustified, this Court deems it fit to grant bail to the petitioner. 7. 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.