The State Of Rajasthan, Through P.P. vs With Mr. Ravindra Kumar, Adv.

: Mr. Rajeev Kumar Sogarwal, Adv. With Mr. Ravindra Kumar, Adv. For Respondent(s) : Ms. Arti Sharma, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN 04/03/2025 Order This second bail application under Section 483 BNSS has been filed on behalf of the petitioners herein who have been arrested in connection with FIR No.33/2024 PS Gandhi Nagar, District Ajmer for offence under Section 8/15 of the NDPS Act. After completion of investigation, police has filed charge sheet in the court concerned. On 29.11.2024, first bail application preferred on behalf of the accused petitioner was dismissed as withdrawn with liberty to renew the prayer for bail after recording statement of the seizure [2025:RJ-JP:10947] (2 of 5) [CRLMB-2081/2025] officer. Now, the statement of the seizure officer has been recorded during trial and hence, this second bail application. Learned counsel for the accused petitioners submit that the accused petitioners have 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. Learned counsel argue that as per the prosecution case, on

02.02.2024 at about 4:55 AM, recovery of contraband opium doda post was allegedly effected from one Car (No.RJ 13 CE 6496). The accused petitioners were arrested from the spot. 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 [2025:RJ-JP:10947] (3 of 5) [CRLMB-2081/2025] 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. It is also argued that inventory was prepared in this case on

15.03.2024. Further, samples drawn during the course of inventory were not sent to the FSL immediately and same were sent as late as on 06.05.2024. There is no explanation as to the said delay in sending samples to the FSL. It is contended that the seizure officer failed to give any satisfactory answer to a specific question regarding the said delay caused in sending the samples to the FSL, put before him while recording his testimony. The trial is also going on a snail’s pace as only one witness out of seventeen cited witnesses has been examined so far. Lastly, they submit that the petitioners do not have any criminal antecedents under the NDPS Act. The accused petitioners are is in custody since their dates of arrest whereas trial will take time in its conclusion. It is submitted that further custody of the petitioners would not serve any fruitful purpose. Learned counsel places reliance on judgment passed in the case of Santosh Prasad Sahu @ Santosh Kumar Sahu versus The State of Jharkhan : Criminal Appeal No.253 of 2025 (@ SLP (CRL.) No.17114/2024) wherein considering the period of incarceration which is more than one year, facility of bail was granted. Per contra, learned Public Prosecutor opposes the bail applications and submits that huge quantity of the contraband has been recovered and therefore, considering the rigour of Section 37 of the NDPS Act, bail should not be granted to the accused petitioners. [2025:RJ-JP:10947] (4 of 5) [CRLMB-2081/2025] I have heard and considered the submissions advanced by counsel for the petitioners as well as learned Public Prosecutor and perusal the material available on record. From the material available on record, prima facie, it appears that recovery was allegedly effected at 4:55 AM in the morning (before sunrise) whereas no memo as per provisions of Section 42 of the NDPS Act was prepared wherein it was incumbent upon the seizure officer to record his reasons in writing for search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. The petitioners do not have any criminal antecedents. They are in custody since their

02.02.2024 and trial will take time in its conclusion as only one witness out of seventeen witnesses has been examined so far. Section 37 of the NDPS Act 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. Having regard to the overall facts and circumstances of the case; considering arguments advanced by learned counsel for the petitioners and material made available before me including [2025:RJ-JP:10947] (5 of 5) [CRLMB-2081/2025] charge sheet and statement of seizure officer and the judgment relied upon by learned counsel for the petitioners but without expressing any opinion on the merits/demerits of the case, I deem it just and proper to accept the instant bail application. Thus, this second bail application is allowed and it is directed that accused petitioners (1) Ashok Kumar S/o Shri Ved Prakash & (2) Sunil Kumar S/o Shri Mahaveer Prasad arrested in connection with FIR No.33/2024 PS Gandhi Nagar, Ajmer shall be released on bail provided each of them 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 each of them 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. It is made clear that the petitioners shall not involve in any other similar offence during currency of the bail. They shall mark their presence in the concerned local police station in the second week of every month till currency of trial. In case, any breach of these condition is reported or come to the notice of the Court, the trial court may cancel the bail granted to them by this Court. The observation made hereinabove is only for decision of these bail applications and will not impact trial in any manner. MADAN/29 (ANIL KUMAR UPMAN),J