Judicature For Rajasthan High Court · 2025

: Mr. Vijay Raj Vishnoi Mr. J.K. Haniya For Respondent(s) : Mr. Urja Ram Kalbi, P.P. HON'BLE MR. JUSTICE KULDEEP MATHUR 22/01/2025 Order

1. This application for bail under Section 483 BNSS (Section 439 Cr.P.C.) has been filed by the petitioner who has been arrested in connection with F.I.R. No.256/2022 registered at Police Station Nimbahera Sadar, District Chittorgarh, for the offences punishable under Sections 8/15, 8/25 of the NDPS Act.

2. Heard learned counsel for the petitioner as also learned Public Prosecutor and perused the material available on record.

3. Learned counsel for the petitioner submitted that 1767 Kgs. of contraband (Poppy Husk/Straw) was recovered from the conscious possession of the co-accused Khem Ram. The co- accused Khema Ram divulged an information that the recovered contraband was supplied to him by the present petitioner. Learned counsel for the petitioner further submitted that admittedly contraband in the present case was not recovered from the [2025:RJ-JD:4184] (2 of 6) [CRLMB-8278/2024] conscious possession of the present petitioner and the petitioner has been implicated in the present case solely on the basis of disclosure statements of the co-accused Khema Ram. Learned counsel also contended that the above named co-accused Khema Ram has already been enlarged on bail by the co-ordinate Bench of this Court in S.B. Criminal Misc. Bail Application No.4997/2024 vide order dated 02.09.2024. The order dated 02.09.2024 passed by this Court is reproduced herein below 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 256/2022 of Police Station Sadar Nimbahera District Chittorgarh in respect of offence(s) punishable under Section(s) 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was not pressed with liberty to file fresh after recording of statement of seizure officer. Now post recording of statement of seizure officer this second bail application has been moved. 3. This Court has carefully perused the record as well as considered the submissions made by learned counsels for the parties. 4. Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 1767 Kgs. of contraband poppy straw recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. Seizure and sampling was in consonance with the procedure and the shortcomings pointed out by the learned counsel for the petitioner cannot be considered at this stage and are to be decided after trial only. The bail petitioner indulges in the illegal trade of narcotics. Therefore, petitioner does not deserve to be released on bail. 5. I have given my anxious consideration to the rival submissions with reference to material placed before me. 6. On perusal of the record and upon consideration of the submissions, it would be clear that during the trial of the present case, the statement of Seizure Officer Tulsi Ram (PW-4) has already been recorded by the trial Court besides [2025:RJ-JD:4184] (3 of 6) [CRLMB-8278/2024] 3 other witnesses. Said statement would reveal that there was, prima facie, non-compliance of mandatory procedure of sampling, which prima facie effects the sanctity and legality of the seizure. Samples for chemical analysis from the seized contraband were drawn on the spot of recovery by Tulsi Ram (PW-4) himself, in absence of a Magistrate which was clearly in derogation of provisions of Section 52A of the Act and such irregularities, prima facie, malign the seizure proceedings. 7. It is also observed that Section 52A of the Act contemplates that where any narcotic drug has been seized and forwarded to the Officer-in-charge of the nearest Police Station, such officer shall prepare an inventory of such narcotic drugs containing all the necessary details and make an application to any Magistrate for the purpose of allowing him to draw representative samples of such drug in the presence of such Magistrate and certifying the correctness of samples so drawn. 8. While dealing the scope of Section 52A of the NDPS Act, Hon’ble the Supreme Court in the case of Mangi Lal Vs. State of Madhya Pradesh, reported in 2023(3) Crimes (SC) 298 held that Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of narcotic drug recovered. This has to be followed through an appropriate application to the Magistrate concerned. The purpose is taking of samples in presence of Magistrate after due certification. The object behind this provision is to have an element of supervision by the Magistrate in taking samples. Therefore, when there is noncompliance of Section 52A of the NDPS Act and where a certification of the Magistrate is lacking, any sampling would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval for certifying the samples drawn. 9. Hon’ble the Apex Court in the case of Union of India Vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379, it was held that no sooner seizure is effected and the contraband drug is forwarded to the Officer-in-charge of the Police Station or the other Officer empowered, the Officer concerned is duty bound to approach the Magistrate for the purpose mentioned above including grant of permission to draw representative samples in his presence. Samples drawn will then be enlisted and the correctness of list of samples so drawn is to be certified by the Magistrate. There is no provision in the Act that mandates taking of samples by the Police Officer himself at the time of seizure. The question of taking samples at the time of seizure which [2025:RJ-JD:4184] (4 of 6) [CRLMB-8278/2024] takes place in the absence of Magistrate does not, in the above scheme of things, arises. The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by the Magistrate to be correct. 10. In view of the above pronouncements of Hon’ble the Apex Court, this Court has perused the record and statement of Tulsi Ram (PW-4), which proves that the samples were taken immediately after the seizure without there being presence of any Magistrate. The samples drawn in proceedings under Section 52A of the Act, have not been sent to FSL. In view of this Court, prima facie, taking samples from the packets at the time of seizure is not in conformity with the law laid down in the above-mentioned pronouncements, which prima facie brings the case of the prosecution under cloud which claims that substance recovered was a contraband. 11. Having considered the material available on record; the arguments advanced by counsel for the applicant particularly the facts narrated above and the fact that applicant is in custody since 03.06.2022; that trial is likely to take its own considerable time and taking note of all these aspects I do not intent to go into the merits of the matter but of the considered view that the rigor of Section 37 of the N.D.P.S. act is duly satisfied, forasmuch this court feels that the applicant has available to him substantial grounds so as to question the prosecution case and no useful purpose would be served by keeping the applicant in detention for an indefinite period therefore, I am inclined to grant indulgence of bail to the petitioner at this stage. 12. Consequently, the present bail application is allowed and it is directed that the accused-petitioner Khema Ram S/o Ruparam Jat, arrested in connection with the F.I.R. No.256/2022 of Police Station Sadar Nimbahera District Chittorgarh 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 copy of 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.” [2025:RJ-JD:4184] (5 of 6) [CRLMB-8278/2024]

4. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

5. Per contra, learned Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that looking to the seriousness of allegation against the petitioner, he does not deserve to be enlarged on bail, however, learned Public Prosecutor was not in a position to refute the fact that the co-accused Khema Ram, from whose conscious possession contraband greater than commercial quantity was recovered has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 02.09.2024.

6. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the co- accused Khema Ram from whose conscious possession the contraband greater than commercial quantity was recovered has already been enlarged on bail by the co-ordinate Bench of this Court vide order dated 02.09.2024. The petitioner is in judicial custody and the trial of the case will take sufficiently long time to be concluded. Thus, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioner deserve to be accepted.

7. Consequently, this bail application under Section 483 BNSS (Section 439 Cr.P.C.) is allowed. It is ordered that the accused- petitioner Jagdish S/o Sri Chatarbhuj Gadari arrested in connection with F.I.R. No.256/2022 registered at Police Station [2025:RJ-JD:4184] (6 of 6) [CRLMB-8278/2024] Nimbahera Sadar, 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/- (Rupees Fifty Thousand) and two sureties of Rs.50,000/- (Rupees Twenty Five Thousand) 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.

8. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial Court shall not get prejudiced by the same. 161-AnilKC/- (KULDEEP MATHUR), J