Allowed

Udailal v. State of Rajasthan

Rajasthan HC2 Nov 2023CRLMB/7178/2023

Case brief

AI extract

What is this about?

The Court allowed a second bail application by an accused in an NDPS case. Relying on procedural lapses such as failure to test samples within 72 hours and improper sealing, the Court held that the presumption in NDPS Section 37 was inapplicable, granting bail with personal bond and sureties.

What did the court decide?

The accused petitioner is enlarged on bail under Section 439 Cr.P.C. to furnish a personal bond of Rs. 1,00,000/- with two sureties of Rs. 50,000/each.

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

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[2023:RJ-JD:37451]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous 2^nd Bail Application No. 7178/2023

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Udailal S/o Navalram Ahir, Aged About 38 Years, R/o Chaktiya, P.s. Mangalwad, Distt. Chittorgarh, Haal Mukam Sarhad Rakampur, Police Station Badhsaoudh, Distt. Chittorgarh(Raj). (At Pressent Lodged In Distt. Jail, Chittorgarh)

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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.Mangi Lal Bishnoi. For Respondent(s) : Mr.S.K.Bhati, P.P.

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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ORDER

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02/11/2023

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This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.17/2022 registered at Police Station Bhadsora, District Chittorgarh, for offence under Section 8/15 of the NDPS Act.

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Learned counsel for the petitioner submitted that the first bail application filed on behalf of the petitioner was dismissed by this Court vide order dated 10.2.2023 as not pressed with liberty to the petitioner to file a fresh bail application after the statements of the Seizure Officer and Investigating Officer are recorded before the competent criminal court.

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Learned counsel for the petitioner submitted that the contraband was not recovered from the conscious possession of the present petitioner. Learned counsel submitted that the contraband was recovered from the conscious possession of his

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wife Smt.Parasbai, who has already been enlarged on bail by the coordinate Bench of this Court vide order dated 4.8.2022, passed in S.B.Cr.Misc. Bail Application No.8101/2022. Learned counsel further submitted that after dismissal of the first bail application preferred on behalf of the petitioner, statements of the Seizure Officer have already been recorded before competent criminal court as PW-2. Drawing attention of the Court towards the statements of the Seizure Officer (PW-2), learned counsel submitted that the Seizure Officer during cross-examination has admitted that after drawing sample from the recovered contraband, the bags in which remaining contraband was kept were not sealed, however only a slip was affixed on them. Learned counsel further submitted that the Seizure Officer has also admitted that the samples drawn by the Seizure Officer at the time of seizure were not sent to FSL for examination within 72 hours as per the Standing Order No.1/1988 dated 15.3.1988 of the NCB, New Delhi.

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Learned counsel submitted that in view of the above admission made by the Seizure Officer coupled with the fact that after drawing control sample, the remaining contraband was kept in a bag which was not sealed properly and only a slip was affixed on it, the chances of the sample being tampered with, cannot be ruled out and therefore, the benefit of bail should be granted to the petitioner. It was further urged that no explanation whatsoever has been furnished by the Seizure Officer during cross-examination for not sending the sample to FSL for examination within 72 hours of the drawing of the sample.

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Lastly, learned counsel submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

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Per contra, learned Public Prosecutor opposed the bail application. However, learned Public Prosecutor was not in a position to refute the fact that the sample drawn at the time of conducting the seizure proceedings was not sent to FSL for examination within 72 hours and during the court statements, the Seizure Officer was not able to furnish any justification for not sending the sample to FSL for examination within the mandatory period provided as per the Standing Order No.1/1988 dated 15.3.1988 of the NCB, New Delhi

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Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

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Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the contraband was not recovered from the conscious possession of the present petitioner. This Court also prima facie finds that coaccused persons namely Smt.Parasbai and Radheyshyam have already been enlarged on bail by this Court vide orders dated 4.8.2022 and 16.5.2023, passed in S.B.Cr.Misc. Bail Application Nos.8101/2022 and 3974/2023 respectively. This Court also prima facie finds that no explanation whatsoever has been furnished by the Seizure Officer during cross-examination for not sending the sample to FSL for examination within 72 hours. Thus, the argument of learned counsel for the petitioner that chances of

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(4 of 4) [CRLMB-7178/2023]

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[2023:RJ-JD:37451]

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samples being tampered with cannot be brushed aside at this stage and thus, the benefit of doubt deserves to be granted to the petitioner; the rigours of Section 37 of the NDPS Act are not applicable to the prejudice of the present petitioner. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

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Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner- Udailal S/o Navalram Ahir shall be enlarged on bail in connection with FIR No.17/2022 registered at Police Station Bhadsora, District Chittorgarh, provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to so.

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It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.

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(KULDEEP MATHUR),J

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/tarun goyal/ Sr.No.4

Udailal v. State of Rajasthan

Case brief

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Udailal v. State of Rajasthan

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