Allowed

Deva Ram v. State of Rajasthan

Rajasthan HC7 May 2024CRLMB/1035/2024

Case brief

AI extract

What is this about?

This judgment grants bail to two accused petitioners facing charges under Section 8/15 of the NDPS Act. The court relied on Supreme Court precedents to hold that the FSL report is inadmissible evidence as samples were not taken within 72 hours or by a magistrate, rendering the prosecution material insufficient to justify continued incarceration.

What did the court decide?

Accused-petitioners enlarged on bail upon furnishing a personal bond of Rs. 50,000 and two sureties of Rs. 25,000 each.

Deva Ram Vs State of Rajasthan — Bail and Remand | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 1035/2024

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Deva Ram S/o Shri Gopa Ram, Aged About 33 Years, R/o Sazta, Sindhari Police Station, Dist. Barmer. (Lodged In Dist. Jail, Merta)

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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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Connected With

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S.B. Criminal Miscellaneous Bail Application No. 1849/2024 Gajendra Dholi @ Gajraj S/o Jugalkishore, Aged About 25 Years, R/o Basni Neta Police Station Merta Road District Nagaur ( At Present Ldoged In Sub Jail Merta)

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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.	Bhagirath Ray Bishnoi
	Mr.	R.K. ACharya
For Respondent(s)	: Mr.	Mukhtiyar Khan,PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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07/05/2024

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The jurisdiction of this court has been invoked by way of filing the instant bail applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter

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are tabulated herein below:

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S.No.	Particulars of	the Case
1.	FIR Number	485/2021
2.	Concerned Police Station	Merta City,Nagaur
3.	District	Nagaur
4.	Offences alleged in the FIR	Section 8/15 of the NDPS Act
5.	Offences added,if any	-
6.	Date of passing of impugned order(SBCRLMB	18.12.2023

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[CRLMB-1035/2024]

	No.1035/2024)
6.A	Date of passing of impugned order(SBCRLMB No.1849/2024)	23.01.2024

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Briefly stated the facts of the case are that on 22.12.2021 at about6:50 p.m. during patrolling, Shri Rajveer Singh, the SHO of Police Station Merta, District Nagaur alongwith his team intercepted a Pick Up bearing registration No.RJ19GC5855. On seeing the police party, the accused tried to flee away but could not succeeded. Upon being asked, driver of the vehicle told his name to be Gajendra Dholi @ Gajraj and another person stated his name to be Deva Ram. The vehicle was searched and poppy husk and five empty bags were found therein.The total weight of the contraband was 99.500 Kg and sample marked ‘A’ was taken from the seized contraband for sending the same to the FSL for its examination. The accused were taken into custody. After usual investigation, a case under Section 8/15 of the NDPS Act has been registered. Hence, the bail applications.

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It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accusedpetitioners and they have been made an accused based on conjectures and surmises. Learned counsel further submits that there is a serious discrepancy in the time mentioned on Parcha kayami report, notice to Motbirs, notice to the accused and the seizure memo and prayed that since the perusal of the notice to

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witness revealing that it was given post effecting seizure therefore, in view of the grave anomaly between time mentioned in different memos, therefore, it can be assumed that all the proceedings were undertaken at the crime place rather the entire memos were prepared in the police station premises. He further submits that the accused was taken into custody on 22.12.2021 and since then they are behind the bars. Now, around two and half years have lapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, they may be enlarged on bail.

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Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 5. Have heard and considered the submissions made by both the parties and have perused the challan papers and the other material available on record.

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Perusal of the material available on record revealing that on on 22.12.2021, SHO PS Merta intercepted a Pickup and recovered 99.500 Kg poppy husk. The accused were arrested and Seizing Officer took sample from the recovered contraband and marked the same as ‘A’ and sent the same to the FSL for detection of morphine and its derivatives. It is an admitted situation that the sample which was taken by the Seizing Officer from the spot on 22.12.2021 was sent to the FSL for chemical examination on 28.12.2022 and was not taken in the presence of the Magistrate thus, the sample was not sent for scientific investigation within

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72 hours from its recovery. Apparently, the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. Admittedly, no sample was taken in the presence of Magistrate whereas the samples taken at the spot were sent to the FSL. In this view of the matter it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.03.2024, it was held that since no proceedings were undertaken for preparing of inventory and drawings of samples as per Section 52-A of NDPS Act, thus, the FSL was considered to be waste and was not considered worthy of being read in evidence on the basis of this inter alia other aspects, Hon’ble the Apex Court acquitted the appellants of all charges. The relevant paragraph of the above judgment is reproduced as under:-

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“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P11) is nothing but a waste paper and cannot be read in evidence.”

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Learned counsel further drew the attention of this Court towards the serious discrepancy in the time mentioned on Parcha kayami report, notice to Motbirs, notice to the accused and the seizure memo and prayed that since the perusal of the notice to

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witness revealing that it was given post effecting seizure therefore, in view of the grave anomaly between time mentioned in different memos, it can be assumed that no proceeding was undertaken at the crime place rather the entire memos were prepared in the police station premises.

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I have pondered over this issue also and noticed some incongruity in time mentioned over the different memos but leaving this issue at the discretion of the trial court to adjudicate as making any appreciation by this Court at this stage of the bail over the above issue either may put a serious dent on the story set out by the prosecution or otherwise it may cause prejudice to the interest of the accused.

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At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around two and half years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that he is not guilty of the

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alleged crime but for the limited purpose for the justifiable disposal of the bail application, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused are in custody, this court feels that the accused are not supposed to establish a case in support of their innocence rather their detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping them behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioners.

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Accordingly, the instant bail applications under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioners as named in the cause title shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.

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(FARJAND ALI),J

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21-Mamta/-

Deva Ram v. State of Rajasthan

Case brief

What is this about?

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Deva Ram v. State of Rajasthan

Case brief

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