Dismissed

Harikishan v. State of Rajasthan

Rajasthan HC13 Apr 2023CRLMB/13871/2022

Case brief

AI extract

What is this about?

The High Court at Jodhpur dismissed the petitioner's second bail application. The court noted that while the Seizure Officer mixed drug samples contrary to Standing Instructions cited in Netram, this defect was cured by the mandatory verification and sampling under Section 52A NDPS Act. Bail was denied due to the commercial quantity of narcotics recovered.

What the court decided

AI extract

Harikishan Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2023)

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[2023/RJJD/009511]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous II Bail Application No. 13871/2022

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Harikishan S/o Sitaram, Aged About 27 Years, Shri Balaji, Nagour. (At Present Lodged In Dist. Jail, Bikaner).

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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----Respondent

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For Petitioner(s) : Mr. Vinod Kumar Sharma For Respondent(s) : Mr. Shrawan Bishnoi - PP

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HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Judgment

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13/04/2023

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The instant second bail application under Section 439 Cr.P.C. has been filed by the petitioner – Harikishan. The petitioner has been arrested in connection with FIR No. 281/2020, Police Station Jai Narayan Vyas Colony, District Bikaner for the offences punishable under Sections 8/15 and 25 of the NDPS Act.

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Brief facts of the case are that upon an information received, a Truck bearing registration No.RJ07-GA-4832, being driven by accused-petitioner Harikishan, was intercepted by the police at the time of nakabandi at Shivbadi Shiv Temple, 80 ft. road on 25.11.2020 at 02:15 AM. Upon suspicion, the police searched the Truck and total 82 plastic bags of opium poppy straw weighing 1270 kg were found in the Truck. On the basis of the recovery, police registered an FIR No.281/2020.

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Learned counsel for the petitioner argued that a false case has been filed against the petitioner and the mandatory provisions of the NDPS Act have not been complied with, thus, the complete recovery, as alleged, has been vitiated on this count alone. It is

[2023/RJJD/009511]

[CRLMB-13871/2022]

(2 of 3)

also argued that Seizure Officer has categorically stated that he has not collected representative samples from 82 bags, as required by the Standing Instructions No.1/89 issued by the N.C.B., New Delhi. He further argued that in the case of Netram vs. State : 2014 (2) WLN 3794 it was held that if the samples were taken after mixing the whole contraband then it violates the provisions of NDPS law. In the present case, the Seizure Officer has vitiated the conditions as enunciated in Netram’s case (supra). He further argued that the petitioner is behind the bars since 26.11.2020 and is facing trial from 19.05.2021. The trial of the case may take considerable time. Learned counsel for the petitioner further argued that the co-accused Ammeda Ram, Dulla Ram & Moola Ram have already been enlarged on bail and, therefore, his second bail application may also be granted.

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Learned Public Prosecutor vehemently and fervently opposed the bail application and stated that Section 37 of the NDPS Act is applicable in the present case and it appears from the evidence that 82 bags of contraband articles containing 1270 kg poppy straw was recovered from the physical possession of the accusedpetitioner. He also submitted that as per the provisions of Section 52A of the NDPS Act, the concerned Investigating Officer has conducted verification proceedings regarding correctness of the articles recovered by the Seizure Officer and representative samples were also drawn before the concerned Magistrate. Therefore, at this instance it cannot be said that merely by drawing or mixing the samples from all the bags, the entire trial has been vitiated. Thus, the second bail application filed by the petitioner may be dismissed.

[2023/RJJD/009511]

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(3 of 3)

Heard learned counsel for the parties and perused the material available on record.

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Though it is correct that the Seizure Officer has not followed the directions rendered in the judgment of Netram (supra) but the charge-sheet also reveals that proceedings under Section 52A of the NDPS Act were conducted by the concerned Investigating Officer, wherein, certification regarding correctness of the contraband articles recovered and samples drawn from 82 bags were certified by the concerned Magistrate. The purpose of such a representative sample is required to be made so that it can be used as a primary evidence in the trial to establish the factum of seized contraband and to done away with the cumbersome exercise of producing the entire contraband before the trial court during the course of trial. Therefore, at this stage, without expressing anything on the merit of the case, on this ground alone, I do not deem proper to allow the bail application.

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As far as delay in the trial is concerned, learned counsel for the petitioner has not submitted copies of the order-sheets, which indicate that the trial has proceeded with a snail pace manner. Thus looking to the recovered commercial quantity of the contraband articles from the physical possession of the accusedpetitioner, I do not deem it proper to enlarge the him on bail.

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Accordingly, the second bail application filed by the petitioner is dismissed.

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(PRAVEER BHATNAGAR),J

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AK Chouhan/-

Harikishan v. State of Rajasthan

Case brief

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What the court decided

Harikishan v. State of Rajasthan

Case brief

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What the court decided

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