Allowed

Shivraj v. U.O.I.

Rajasthan HC11 Mar 2024CRLMB/328/2024

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed bail applications under Section 439 CrPC for accused charged under Sections 8/15 NDPS Act. The court held that procedural lapses under Section 52-A regarding inventory and sample verification, coupled with lack of documentary evidence, made it a fit case for bail despite Section 37 bar.

What did the court decide?

Enlarged on bail subject to personal bond of Rs. 50,000/- and sureties of Rs. 25,000/- each.

Shivraj Vs U.O.I. — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JD:11844]

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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. 2661/2024

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Motiram S/o Kalu Ram, Aged About 25 Years, R/o Ramgarh, Teh Raipur, Dist Pali, Raj. (Lodged In Sub Jail, Begu)

----Petitioner

Versus

U.o.i., Through Ncb

----Respondent

Connected With

S.B. Criminal Miscellaneous 2^nd Bail Application No. 328/2024 Shivraj S/o Nimbaram Gurjar, Aged About 23 Years, R/o Village Raas, Tehsil Jaitaran, District Pali (Raj) (Presently Lodged At Sub Jail, Begu)

----Petitioner

Versus

U.o.i., Through Cbn

----Respondent

S.B. Criminal Miscellaneous 2^nd Bail Application No. 1752/2024 Nemaram S/o Babu Lal Gurjar, Aged About 29 Years, R/o Banjadon Ki Dhani Jhalla Ki Chowki Sendra, Dist. Pali (Raj.). (At Present Lodged At Sub Jail, Begun).

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----Petitioner

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Versus

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Union Of India, Through Cbn

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----Respondent

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For Petitioner(s) : Mr. Shiv Prakash Swankar (CRLMB NO. 1452) None present for the petitioners (CRLMB No. 2661/2024 and CRLMB No. 328/2024) For Respondent(s) : Mr. S. K. Bhati, PP

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HON'BLE MR. JUSTICE FARJAND ALI

Order

11/03/2024

[2024:RJ-JD:11844]

[CRLMB-2661/2024]

(2 of 5)

The jurisdiction of this court has been invoked by way of filing an instant applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

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S.No .	Particulars of	the Case
1.	FIR Number	No.05/2022
2.	Concerned Police Station	CBN
3.	District	Singoli
4.	Offences alleged in the FIR	Sections 8/15 of NDPS Act
5.	Offences added, if any	--
6.	Date of passing of impugned orders	09.01.2024
7.	Date of passing of impugned orders (CRLMB No. 328/2024)	05.01.2024

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The first bail applications of petitioners came to be dismissed as withdrawn by this Court vide order dated 17.11.2023 with liberty of file afresh after statement of seizing officer is recorded in trial. Now, seizing officier has been examined, hence the present second bail applications are filed.

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It is contended on behalf of the accused-petitionerNemaram that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made accused based on conjectures and surmises.

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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 recovered contraband is way above the

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[CRLMB-2661/2024]

(3 of 5)

demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out.

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Have considered the submissions made by both the parties and have perused the material available on record. It is the case of the prosecution that the present petitioners were escorting the vehicle in which the contraband was being transported. PW-2 Amit, the Inspector, CBN as well as the investigating officer has admitted in his cross-examination that during investigation no documentary evidence direct or indirect has been found against the present petitioner indicating their involvement with the alleged seized contraband. Additionally, the I.O. has also admitted in his cross-examination that during investigation he learnt that the entire proceedings of seizure were conducted in singoli, MP which is outside the limits of the state of Rajasthan.

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Though the inventory was prepared and verified by the Magistrate as per the provision of Section 52A of the NDPS Act but the samples so verified were not sent for scientific investigation within 72 hours and not the ones which were verified by the magistrate and were drawn while preparation of inventory. The legal position discussed above pertaining to forwarding of samples drawn after preparation of the inventory and certification by magistrate has been reiterated by Hon’ble the Supreme Court in Simranjit Singh Vs. State of Punjab passed in Criminal Appeal NO.1443 of 2023 (Arising out of S.L.P.(Crl.) No. 1958 of 2023) vide order dated 09.05.2023. This court is of the considered opinion that an accused cannot be allowed to walk scot-free for

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[CRLMB-2661/2024]

(4 of 5)

the sole reason that the steps were not followed one after the other but in the present case, the non-compliance of procedure is accompanied with lackadaisical approach of the investigating agency as well as long period of incarceration pending trial. There is no provision of law that mandates taking of samples at the time of seizure, however, there is no provision barring the same too. In a recent 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 P- 11) is nothing but a waste paper and cannot be read in evidence.”

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In this instant matter too, the alleged contraband was seized on 20.10.2022 and the inventory under Section 52-A of NDPS Act was prepared few months after the seizure of the contraband thereby vitiating the process of preparing inventory and sending the samples drawn in the presence of magistrate for

(5 of 5)

[CRLMB-2661/2024]

[2024:RJ-JD:11844]

scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been fulfilled.

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This Court is cognizant of the provisions contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioners regarding noncompliance of statutory procedure, this court is of the opinion that it is a fit case for grant of bail to the accused petitioners. Be that as it may, no final observation and comment can be made at this stage, as the same may influence the course of trial.

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Accordingly, the instant bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners 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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698-Mamta/-

Shivraj v. U.O.I.

Case brief

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What did the court decide?

Shivraj v. U.O.I.

Case brief

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