Allowed

Suresh v. State of Rajasthan

Rajasthan HC7 May 2024CRLMB/485/2024

Case brief

AI extract

What is this about?

Second bail application in an NDPS case involving recovery of 145.100 kg poppy husk from a car. Samples were not drawn in the presence of a Magistrate as required by Section 52-A NDPS Act, and the trial had examined only 6 of 17 witnesses after over two years. Relying on precedent, bail was granted.

What the court decided

AI extract

Suresh Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

¶1

[2024:RJ-JD:20091]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Criminal Miscellaneous 2^nd Bail Application No. 485/2024

¶4

Suresh S/o Mula Ram Rebari, Aged About 24 Years, R/o Kakot, Police Station Chitawa, District Nagaur.(At Present Lodged In Sub Jail Gulabpura)

¶5

----Petitioner

¶6

Versus

¶7

State Of Rajasthan, Through Pp

¶8

----Respondent

¶9

For Petitioner(s)	: Mr. R.K. Charan
For Respondent(s)	: Mr. Mukhtiyar Khan,PP

¶10

HON'BLE MR. JUSTICE FARJAND ALI

¶11

Order

¶12

07/05/2024

¶13

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

¶14

S.No.	Particulars of	the Case
1.	FIR Number	288/2021
2.	Concerned Police Station	Gulabpura
3.	District	Bhilwara
4.	Offences alleged in the FIR	Section 8/15, NDPS Act	25 of the
5.	Offences added,if any	-
6.	Date of passing of impugned order	05.01.2024

¶15

The first bail application of the petitioner being SBCRLMB No.15345/2023 was dismissed as not pressed by this Court vide order dated 13.12.2023.

[2024:RJ-JD:20091]

[CRLMB-485/2024]

(2 of 6)

Briefly stated the facts of the case are that on 28.09.2021, Shri Satish Meena, SHO, Police Station Gulabpura submitted a Parcha Bayan alleging inter alia that on 28.09.2021 at about 8:29 a.m. during nakabandi, he along with his team stopped a Creta Car being registration No. RJ23-CC7077. The said car was being driven by petitioner Suresh, and the another person sitting by the driver side stated his name to be Kana Ram. The car was searched and total 08 bags were taken out from it, suspecting the same to be poppy husk. The total weight of the six plastic bags was 145.100 Kg. out of which, samples were taken from the seized contraband for sending the same to the FSL for its examination. The accused was taken into custody. After usual investigation, a case under Section 8/15 of the NDPS Act has been registered. Hence, the bail application.

¶20

It is contended on behalf of the accused-petitioner 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 accusedpetitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 28.09.2021 and since then he is behind the bars. Till now out of 17 witnesses only 6 could have been examined and more than 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, he may be enlarged on bail. 5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application

[2024:RJ-JD:20091]

[CRLMB-485/2024]

(3 of 6)

and submits that the present case is not fit for enlargement of accused on bail.

¶25

Have heard and considered the submissions made by both the parties and have perused the challan papers and the other material available on record.

¶26

Perusal of the material available on record revealing that on 28.09.2021, Shri Satish Meena, SHO, Police Station Gulabpura intercepted a car and recovered 145.100 Kg poppy husk from it. He took the samples and the sent the same to the FSL for detection of morphine and its derivatives.

¶27

It is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 28.09.2021 were sent to the FSL for chemical examination, which were not taken in the presence of the Magistrate. 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 samples were 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

(4 of 6)

[2024:RJ-JD:20091]

[CRLMB-485/2024]

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:-

¶32

“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.”

¶33

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 alleged crime but for the limited purpose for the justifiable disposal of the bail application, a tentative opinion can be formed

[2024:RJ-JD:20091]

[CRLMB-485/2024]

(5 of 6)

that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. 10. Further, this Court feels that an under trial prisoner should not be kept confined for an indefinite period for no fault of them in impeding the course of trial. A perusal of the material revealing that the trial had been commenced in this matter in the year 2019 but owing to one or the other reason, the recording of the prosecution witnesses could not be completed. It is transpiring that out of the total 17 projected prosecution witnesses, only 6 witnesses could have been examined uptill now. This Court feels that looking to the snail’s pace progress of the trial, it would still take a long time to reach onto a legitimate conclusion. It is also noticed that sincere endeavors have not been made by the trial Court in proceeding with the trial to get an early culmination of the same. 11. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody since the year 2019, this court feels that the accused is not supposed to establish a case in support of his innocence rather his 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 him 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 petitioner.

¶38

(6 of 6) [CRLMB-485/2024]

¶39

[2024:RJ-JD:20091]

¶40

Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he 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 his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

¶41

(FARJAND ALI),J

¶42

17-Mamta/-

Suresh v. State of Rajasthan

Case brief

What is this about?

What the court decided

Suresh v. State of Rajasthan

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shakuntla Kumari Vs State of Rajasthan

Surendra Singh @ Suresh Vs State of Rajasthan

Vipin Singh Vs State of Rajasthan

Sukhram Vs State of Rajasthan

Mayadevi Vs State of Rajasthan

Deva Ram Vs State of Rajasthan