State Of Rajasthan, Through Pp vs For Petitioner(s)

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 23/01/2025 1. The instant second bail application has been preferred under Section 483 B.N.S.S. on behalf of the accused-petitioner. The first bail application of the accused-petitioner was dismissed by this Court vide order dated 29.04.2024 with liberty to file afresh after recording statements of the Seizure Officer. The accused-petitioner has been arrested in connection with FIR No.140/2022 registered at Police Station Suket, District Kota for the offence(s) under Sections 8/15 & 8/18 of NDPS Act.

2. Learned counsel for the accused-petitioner submits that the accused-petitioner has falsely been implicated in this case. It is contended that the Seizure Officer PW-1 Vishnu Singh in his examination in chief has clearly stated that all the bags recovered from the vehicle were poured at one place and thereafter, the samples were drawn. Learned counsel for the accused-petitioner has cited judgments of the co-ordinate Bench passed in matter of Netram vs. State of Rajasthan [2014] 1 CriLR 163, Ramchandra vs. State of Rajasthan passed in S.B. Criminal [2025:RJ-JP:3318] (2 of 4) [CRLMB-928/2025] Misc. Third Bail Application No.1162/2022 and judgment passed in Prabhu vs. Union of India [2023] 0 Supreme (Raj.) 244, and contended that samples were not sent in compliance to the standing order issued by the State, as per the standing order, the samples to the FSL has to be sent within 72 hours after drawing of the samples. It is also contended that samples were not taken in the presence of the Magistrate. Learned counsel for the accused- petitioner vehemently argued that the accused-petitioner has undergone incarceration for more than 2 years and 8 months and prosecution has examined only 1 witness out of 29 listed witnesses. Learned counsel for the accused-petitioner has placed reliance upon the judgment of Gurpreet Singh vs. State of Rajasthan in S.B. Criminal Misc. Bail Application No.13533/2023 dated 07.11.2023, passed by co-ordinate Bench of this Court. It is also contended that trial of the case is not likely to be concluded in near future, therefore, the bail application of the accused- petitioner may be allowed.

3. Learned Public Prosecutor vehemently opposed the bail application and contended that it is alleged against the accused- petitioner and other co-accused that they were carrying 97 kg 790 grams poppy straw in 5 bags along with 1.8 kg opium. It is also contended that as per the provision contained under Section 37 of NDPS Act, there is ample evidence available against the accused- petitioner and the other co-accused regarding their active involvement in the alleged crime. It is further contended that mere irregularities in the investigation cannot be a ground to enlarge the accused-petitioner on bail. The said recovery of [2025:RJ-JP:3318] (3 of 4) [CRLMB-928/2025] contraband articles were effected on 04.05.2022 and on that time, there was no such provision that the samples should be drawn in the presence of Magistrate, the amendment came later on. It is also contended that delay in trial cannot be a ground to dilute the conditions contained under Section 37 of NDPS Act as held in the case of Narcotics Control Bureau vs. Mohit Aggarwal 2022 LiveLaw (SC) 613 passed by Hon'ble Apex Court, therefore, the bail application of the accused-petitioner deserves to be dismissed.

5. Heard and perused the material available on record. As per prosecution story, the accused-petitioner and the other co-accused Keval Singh were apprehended on 04.05.2022, by SHO, P.S. Suket, Kota during the barricading and from there car Mahindra XUV 500 bearing No. DL 14 CD 9000, 5 bags containing poppy straw and 1 bag of opium was recovered, the quantity of poppy straw recovered from 5 bags was 97 kg 790 grams which is clearly a commercial quantity.

6. Recently, Hon'ble Apex Court in the matter of Bharat Aambale vs. State of Chattisgarh in Criminal Appeal No.250 of 2025 arising out of SLP (Cr.lr) No.14420/2024 held that the purpose of Section 52A is primarily for the disposal and destruction of the seized contraband in a safe manner.

7. As far as compliance of Section 52A of NDPS Act is concerned at this stage, it cannot be said that the entire trial has been vitiated and the accused-petitioner is entitled for bail on this ground. [2025:RJ-JP:3318] (4 of 4) [CRLMB-928/2025]

8. The mixing of all the material at one place and thereafter, drawing the samples is question of trial and if the Investigating Officer has conducted some irregularity then it can be assessed by the trial Court after evaluating the entire evidences bring forth before it. Therefore, on that ground also, this Court is not inclined to enlarge the accused-petitioner on bail. As far as long incarceration of the accused-petitioner is concerned, the Division Bench of this Court in the matter of Daulat Singh @ Gatu vs. State of Rajasthan, 2015 (2) RLW 1761 (Raj.), has held that the provision enshrined under Section 37 NDPS Act are mandatory. The Hon'ble Apex Court may release on bail under Article 142 of Constitution of India without getting itself satisfied with the requirement of Section 37 of NDPS Act, if that is necessary for doing complete justice; such authority is not available with the High Court and trial Court. The Three Judge Bench of Hon'ble Supreme Court in the matter of Mohit Aggarwal vs. Union of India also held that the delay in trial itself cannot be a ground to dilute the conditions enshrined under Section 37 of NDPS Act, therefore, this Court is not inclined to enlarge the accused-petitioner on second bail.

9. Accordingly, the second bail application of the accused- petitioner is hereby, dismissed. Deepa Rani-7 (PRAVEER BHATNAGAR),J