Dismissed

Prakash Dhakad v. State of Rajasthan

Rajasthan HC9 Oct 2023CRLMB/7722/2023

Case brief

AI extract

What is this about?

This order rejects a third bail application under Section 439 Cr.P.C. filed by an accused charged under the NDPS Act. The High Court held that the accused, registered owner of the vehicle and in conscious possession of the narcotics, could not be released as the essential standard under Section 37 of the NDPS Act was not met, despite prosecution's compliance with seizure formalities. Procedural la

What did the court decide?

Bail was declined. The Court held it was unable to satisfy itself that the petitioner was not involved in the commission of the alleged offence or that he would not commit an offence on bail.

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

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous 3^rd Bail Application No. 7722/2023

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Prakash Dhakad S/o Mithulal Dhakad, Aged About 28 Years, R/o Tie Ka Khera Bhujyakheri Ps Sadar Nimbahera Dist. Chittorgarh (At Present Lodged At Dist. 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. R.K. Charan.
For Respondent(s)	: Mr. Arun Kumar,PP.

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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09/10/2023

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This third application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.199/2021 registered at Police Station Sadar Nimbahera, District Chittorgarh, for offences under Sections 8/15, 25 and 29 of the NDPS Act.

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The first two applications for bail filed by the petitioner came to be dismissed by this Court vide orders dated 01.07.2021 and 27.04.2022.

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As per prosecution, on 19.05.2021, SHO, PS Nimbahera while conducting blockade ( nakabandi ) near Bhujyakhedi Chouraha, at around 12:30 am, saw a tractor with a trolley attached to it, coming from Bhujyakhedi. The driver of the tractor on seeing the police team, stopped the vehicle about 20-25 feet before the blockade and was seen by the police team, stepping

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down from the vehicle and running, on which, the police team tried to chase him but the driver of the offending vehicle was able to flee away from the place of occurrence. The police team approached the vehicle and saw that the trolley attached with the tractor, has been covered with a white tarp, on which the petitioner was found sitting, who by jumping from the trolley, also tried to escape from the spot, but was apprehended by the police team who encircled him. The police team removed the white tarp covering the trolley and recovered 25 sacks containing contraband (poppy husk/straw) weighing 428kg and 900 grams.

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Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. Learned counsel submitted that as per prosecution, the person who was on the wheel of the offending vehicle had fled away from the place of occurrence. Learned counsel submitted that the petitioner who was found sitting in the trolley attached with the offending vehicle, had no knowledge about the contraband being transported, as he was only engaged as a labourer by the driver of the offending vehicle to unload the material loaded in the vehicle.

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Drawing attention of the Court towards the statements of Seizure Officer (PW-1) recorded before competent criminal court on 01.09.2022, learned counsel submitted that the Seizure Officer in his cross examination has admitted that the provisions contained in Section 52A of the NDPS Act were not complied with and neither the inventory was prepared nor the samples were taken in the presence of Magistrate. Learned counsel submitted

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that the petitioner is in judicial custody since 19.05.2021 and the trial of the case is likely to consume sufficiently long time.

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On these grounds, he implored the Court to enlarge the petitioner on bail.

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Per contra , learned Public Prosecutor opposed the bail application.

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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 and having perused the FIR, charge sheet and the statements of Seizure Officer (PW-1), this Court prima facie does not find any force in the argument advanced on behalf of the petitioner that he was merely engaged as a labourer to load and unload the material loaded in the vehicle and he had no knowledge about the contraband being transported by coaccused Udai Lal. This Court finds that the contraband was not only recovered from the conscious possession of the petitioner but the petitioner has also been found by the investigating agency to be the registered owner of the tractor having registration No.RJ09-R-1515, to which the trolley loaded with contraband (poppy husk/ straw) was attached. The petitioner has therefore, been charged for offence under Section 8/25 of the NDPS Act also. Thus, the argument deserves to be rejected straightaway.

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As far as the argument with regard to non-compliance of the provisions contained in Section 52A of the NDPS Act is concerned, suffice it to observe that Section 52A (2) of the NDPS Act deals with the manner in which the Seizure Officer shall prepare an

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inventory of the seized narcotic drug or psychotropic substance. The Seizure Officer after preparing the inventory shall make an application to the Magistrate for the purpose of certifying the correctness of the inventory so prepared; taking the samples in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; allowing to draw representative sample of such drugs and sample in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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This Court is of the firm opinion that even if it is found that mandate of Section 52A of the NDPS Act has not been properly complied with, then also it will not make the seizure proceedings defective, unless the accused is able to make out a case of prejudice caused to him, before competent criminal court by leading evidence and examining necessary witnesses at the trial. On the face of the provisions of Section 37 of the NDPS Act, no accused can be released on bail unless the Court is satisfied that he is not guilty of such offences and that he is not likely to commit any offence on bail.

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While deciding bail application, various factual scenarios at the time of the seizure of the contraband cannot be gone into in extenso . The petitioner will get sufficient opportunity before competent criminal court to prove that the recovery was defective or he is not guilty of the offences alleged.

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In view of above, this Court is unable to record its satisfaction/mandatory findings in terms of Section 37 of the

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NDPS Act, that the petitioner is not involved in commission of alleged offence under the NDPS Act.

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In view of aforesaid discussion, this Court is not inclined to enlarge the petitioner on bail.

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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/

Prakash Dhakad v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Prakash Dhakad v. State of Rajasthan

Case brief

What is this about?

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