Central Bureau Of Narcotics, Through Special PP vs For Petitioner(s)

Order

1. This second bail application has been filed under Section 483 of BNSS on behalf of the petitioner, who has been arrested in connection with FIR No. 02/2024 registered at Police Station CBN, District Jaipur (Rajasthan) for the offence punishable under Section 8/22(C) of NDPS Act. After completion of investigation, police filed charge-sheet in this matter.

2. The first bail application filed on behalf of the petitioner was dismissed as withdrawn by this court vide order dated 12.12.2024 while giving liberty to the petitioner to renew the prayer for bail after recording testimony of Seizure Officer. Now, Seizure Officer has been examined during the course of trial thus, this second bail application has been preferred. [2025:RJ-JP:31706] (2 of 7) [CRLMB-3107/2025]

3. Learned counsel for the petitioner submits that petitioner has falsely been implicated in this case. Counsel submits that there is total non-compliance of mandatory provisions of NDPS Act. Counsel submits that admittedly, seizure was not made at the place where petitioner was intercepted by the officers and later on, he was brought to the Bureau where entire proceedings were conducted. Counsel submits that this controversy was considered by the co-ordinate Bench of this Court passed in S.B. Criminal Misc. 2nd Bail Application No.5457/2024 titled as Major Singh Vs. State of Rajasthan. The relevant part is reproduced as under:- “The credibility of the seizure memo looses significance if the thing is recovered at a distant place and it is taken by the police from the crime scene to the police station and then memos got prepared in the police station. If it is allowed then why not in every case the things may be taken from the crime scene and whereafter, the entire proceeding be undertaken in the premises of police station and then why not in every case the accused can be detained from any place and whereafter his/her/their memo of arrest be prepared in the police station. This Court is of the view that if anything or any incriminating material is collected or recovered from a particular place and at a particular time then the seizure memo/recovery memo should have been prepared at the same place and that too in the presence of the [2025:RJ-JP:31706] (3 of 7) [CRLMB-3107/2025] witnesses of the same locality. A slight departure or deviation can be permitted in case when no other person is available to verify the fact of recovery at the crime scene then the members of the police party can be made witness of the fact of recovery. In certain circumstances, when there is heavy rain or there is heavy traffic on the highway or other like situation, in that cases also, the seizure memo can be prepared at a nearby place so that the proceedings can be undertaken calmly or safely. However, it is not permissible for a police officer to pick the contraband from a particular place then carry with him to the police station which is situated at a far place and whereafter prepare the seizure memo in the police station premises. The moment this kind of practice is permitted; the day is not far when there would be a trait that the police officers will claim that though the memos were prepared in the police station but the things were recovered from a different place. In that situation, the purity, originality, genuineness and virtuousness would be lost and at the same time, there would be serious aspersions regarding fairness and genuineness of factum of seizure.” Counsel submits that petitioner was intercepted from a place which is thickly populated and he was taken into custody in broad daylight. Counsel submits that admittedly, while effecting the seizure, no independent witness was associated by the Bureau, [2025:RJ-JP:31706] (4 of 7) [CRLMB-3107/2025] despite availability. Counsel submits that simply saying that person refused to become a witness is not enough and there is ample provision in the BNSS that if any person refuses to become a witness in the proceedings, action can be taken against him. Counsel submits that it is apparent from the record that there is no reference of the name of the persons who refused to become a witness. Counsel submits that several Government offices are also located nearby. Counsel also relies upon the order passed by Hon’Ble Apex Court in the case of Ankur Chaudhary vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No.4648/2024 whereby bail was granted to the accused after considering the fact that panch witnesses have not supported the case of prosecution as also considering that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India. Counsel submits that there is serious lacunas in the prosecution case. Counsel submits that it has been admitted by the Seizure Officer that seal which was used during the course of proceeding has been kept in open condition in the Office. It is contended that there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion. Petitioner is in custody 19.01.2024 and as such, he has suffered incarceration of about one year and seven months. It is submitted that Hon’ble Supreme Court has taken the view in the matter of Devendra Kumar Mishra @ Bade Guru vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No.14639/2023 that on the ground of period of incarceration [2025:RJ-JP:31706] (5 of 7) [CRLMB-3107/2025] suffered by accused, bail application under the NDPS Act can be considered for grant. Further reliance has been placed upon the judgment of Hon’ble Supreme Court in the case of Shambhulal Gurjar @ Rohit vs. State of Rajasthan in Special Leave to Appeal (Crl.) No.16671/2024 wherein after taking note of the fact that three other cases under the NDPS Act have been registered against the petitioner, facility of bail was granted to the accused considering the period of incarceration. Further custody of the petitioner would not serve any fruitful purpose.

4. Learned Special Public Prosecutor appearing for the Bureau opposes the prayer of bail made by learned counsel for the petitioner. He submits that recovered contraband is of commercial quantity therefore, considering the rigour of Section 37 of the NDPS Act, benefit of bail should not be granted to the petitioner. Counsel relies upon the order passed by Hon’ble Apex Court in the case of Jagwinder Singh Vs. State of Punjab reported in 2023 SCC OnLine SC 2325 wherein it has been observed that law does not require only an independent witness to prove a charge attracting the provision of NDPS Act. He further places reliance upon the judgment passed by Hon’ble Apex Court in the case of Sathyan Vs. State of Kerala reported in (2023) 13 SCC 767 wherein it has been observed that the testimony of official witnesses cannot be discarded simply because independent witnesses were not examined.

6. I have considered the contentions. Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application [2025:RJ-JP:31706] (6 of 7) [CRLMB-3107/2025] 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.

7. Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the parties, especially considering the observations made by the Hon’ble Apex Court in several judgments wherein considering the period of incarceration suffered by the accused, facility of bail has been granted and also considering the fact that petitioner is languishing in jail since 19.01.2024 and there are no criminal antecedents against him and trial will take considerable time in its conclusion, but without commenting anything on the merits/demerits of the case, I deem it fit and proper to allow this second bail application.

8. This second bail application is accordingly allowed and it is directed that accused-petitioner- Rakesh Kumar Sharma S/o Babulal Sharma 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, [2025:RJ-JP:31706] (7 of 7) [CRLMB-3107/2025] on all subsequent dates of hearing and as and when called upon to do so.

9. It is made clear that the accused-petitioner shall not involve in any other offence(s) during currency of the bail and he shall mark his presence in first week of every month in the Central Bureau of Narcotics, Jaipur.

10. Concerned Officer of the Bureau is directed to maintain a register recording the attendance of the petitioner. In case the petitioner fails to mark his presence in the concerned police station, concerned Officer of the Bureau is directed to immediately report the matter to the concerned Court in this regard.

11. If any breach of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial court to cancel the bail granted to him by this Court.

12. Office is directed to send a copy of this order to the concerned officer of the Bureau for necessary compliance.

13. The observations made hereinabove are only for decision of the instant bail application and would not have any impact on the trial of the case in any manner. LALIT MOHAN /86 (ANIL KUMAR UPMAN),J