State Of Rajasthan, Through PP vs For Respondent(s)

: Mr. Rajveer Singh Gurjar For Respondent(s) : Mr. Shriram Dhakad, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN 24/03/2025 Order

1. The third bail application under Section 483 of BNSS has been filed, on behalf of the petitioner, who has been arrested in connection with FIR No.88/2023 registered at Police Station Batoda, District Sawai Madhopur (Raj.) for the offence punishable under Section 8/20 of NDPS Act. Later on, police filed charge- sheet in this matter for the offences punishable under Sections 8/20 and 8/29 of NDPS Act.

2. First bail application of the petitioner was dismissed as withdrawn vide order dated 12.01.2024 with liberty to file fresh bail application after recording testimony of the Seizure Officer. Second bail application of the petitioner was also dismissed as withdrawn vide order dated 27.09.2024. Now, this third bail application has been preferred. [2025:RJ-JP:13017] (2 of 5) [CRLMB-2062/2025]

3. It is contended by learned counsel for the petitioner that the accused-petitioner has falsely been implicated in this case. It is contended that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides power of a police officer of making entry, search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset, if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. The police officer may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior. It is submitted that as soon as, it came to the knowledge of the police team that it is a case of recovery of narcotic drugs and psychotropic substance, it was incumbent upon the police party to follow the provisions of NDPS Act but no memo in terms of Section 42 of the NDPS Act was prepared by the seizure officer. Reliance has been placed on judgment passed by Hon’ble Supreme Court in the case of State of Orissa vs Laxman Jena, reported in 2009 Vol.16 SCC 332.

4. He submits that contraband was seized on 17.05.2023 at 09:00 PM but no separate memo with regard to seizure made between sunset and sunrise was prepared by the Seizure Officer. [2025:RJ-JP:13017] (3 of 5) [CRLMB-2062/2025] It is submitted that material witnesses including Seizure Officer have already been examined. It is evident from the cross- examination of Seizure Officer that alleged recovery was made at toll plaza but no CCTV footage has been obtained by the Investigating Officer in this regard. It is submitted that despite the fact that independent witnesses were available at toll plaza, witnesses were called from Phulwara which is 10kms away from the place of incident. There are no criminal antecedents against the petitioner. Charge-sheet has been filed and trial will take considerable time in its conclusion. Petitioner is in custody since

18.05.2023 and further custody of the petitioner would not serve any fruitful purpose. Counsel relies upon the order dated

10.01.2020 passed by Hon’ble Apex Court in Special Leave to Appeal (Crl.) No(s).5397/2019 titled as Ghanshyam Sharma Versus State of Rajasthan wherein Hon’ble Apex Court observed:- “Though Dr. Manish Singhvi, learned senior counsel appearing for the respondent-State has submitted that the trial is almost at the verge of completion, in our view both the petitioners are to be given an opportunity to put forth their defence”.

5. Learned Public Prosecutor opposes the submissions made by learned counsel for the petitioner and submits that huge quantity of contraband has been recovered from the petitioner thus, considering the rigour of Section 37 of the NDPS Act, bail should not be granted. He further submits that trial is at fag end as only two prosecution witnesses are remaining to be examined. [2025:RJ-JP:13017] (4 of 5) [CRLMB-2062/2025]

6. I have heard and considered the submissions advanced at bar and have gone through the material available on record.

7. The petitioner has already served sentence of almost one year ten months. Prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the embargo contained under Section 37 of the NDPS Act.

8. So far as Section 37 of the NDPS Act is concerned, it does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during investigation.

9. I have considered the contentions.

10. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by both the parties, material made available in the form of charge-sheet, so also considering the fact that material witnesses including Seizure Officer have already been examined during the course of trial; absence of criminal antecedents as well as looking to the custody period of the accused petitioner, but without commenting anything [2025:RJ-JP:13017] (5 of 5) [CRLMB-2062/2025] on the merits/demerits of the case, I deem it proper to allow this third bail application.

11. This third bail application is accordingly allowed and it is directed that accused-petitioner - Rajendra Kumar S/o Prakash Chand, shall be released on bail provided he furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) each to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

12. The observation made herein above is only for decision of the instant bail application and would not have any impact on the trial of the case in any manner. GAUTAM JAIN /28 (ANIL KUMAR UPMAN),J