Allowed

Rajesh Dhakar S/O Ghisulal v. State of Rajasthan

Rajasthan HC28 Nov 2024CRLMB/5171/2024

Case brief

AI extract

What is this about?

Second bail applications in an NDPS case alleging night-time recovery without Section 42 compliance, delayed magistrate inventory verification and delayed sample dispatch to FSL. With trial at a slow pace and petitioners in custody over one year, the court granted bail subject to conditions.

What did the court decide?

Bail granted on personal bond Rs.50,000 plus two sureties of Rs.25,000 each; monthly police station presence required.

Rajesh Dhakar S/O Ghisulal Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:48968]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous II Bail Application No. 5171/2024

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Rajesh Dhakar S/o Ghisulal, Aged About 30 Years, R/o Khajuripanth, Police Station Shamgarh, District Mandsaur (Mp) (At Present Confined In The District Jail, Kota)

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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 II Bail Application No. 6864/2024 Harvinder Singh S/o Gurunam Singh, Aged About 40 Years, R/o Mastgarh, Police Station Chika, District Kaithal (Haryana) (At Present Accused Petitioner Confined In Central Jail Kota).

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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. Rajveer Singh Gurjar Mr. Gurvinder Singh For Respondent(s) : Mr. Amit Punia, PP

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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Order

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28/11/2024

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These second applications for bail found under Section 439 Cr.P.C. have been filed on behalf of the petitioners who are in custody since 01.07.2023 in connection with FIR No.165/2023 registered at Police Station Chechat District Kota for offences under Sections 8/15, 8/29 of the NDPS Act and Sections 420, 465 IPC. After completion of investigation, chargesheet has been been filed in the court concerned.

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First bail applications filed on behalf of the petitioners were dismissed as withdrawn with liberty to file fresh bail application after recording testimony of seizure officer at trial.

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Learned counsel for the petitioners contend that the petitioners have falsely been implicated in this case. They are in custody since 01.07.2023 and as such, till date, they have suffered incarceration of nearly one and half years. It is contended that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides for power of a police officer of making entry, search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset, provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. The police officer may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior.

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Learned counsel argues that in the case at hand, the alleged recovery was effected in night time and as soon as, it came to the knowledge of the police team that it is a case of narcotic drugs and psychotropic substance, it was incumbent upon the police party to follow the provisions of NDPS Act but no such memo was prepared by the seizure officer, which is apparent from the

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evidence of seizure officer PW.1 Bannalal. Reliance has been placed on judgment passed by Hon’ble Supreme Court in the case of State of Orissa vs Laxman Jena, reported in 2009 Vol.16 SCC 332. Apart from above, it is contended that inventory was verified by the jurisdictional magistrate on 21.07.2023 whereas recovery was effected on 01.07.2023. Further, samples were drawn from the recovered contraband in presence of the jurisdictional magistrate as per provisions of Section 52A ,of NDPS Act on 21.07.2023 and same were sent to FSL on 05.09.2023. Thus, there is not only unnecessary delay in verification of the inventory by the magistrate concerned but also samples were sent to FSL with delay. Counsel submits that there are no criminal antecedents of the petitioners. Learned counsel contend that trial will take time in its conclusion as only one witness has been examined so far. Further custody of the petitioners will not serve any fruitful purpose.

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Per contra, learned Public Prosecutor opposes the bail applications and submits that huge quantity of the contraband has been recovered in the case and therefore, considering the rigour of Section 37 of the NDPS Act, bail should not be granted to the accused petitioners.

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I have heard and considered the submissions advanced by counsel for the petitioners as well as learned Public Prosecutor and perusal the material available on record.

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As per record, the petitioners are in custody since 01.07.2023 and thus, they have already behind the bars for nearly one year and five months and till date, trial is going at a snail’s pace as only one witness has been examined at trial. From the material available on record, prima facie, it appears that recovery was effected in night time whereas no memo as per provisions of Section 42 of the NDPS Act was prepared wherein it was incumbent upon the seizure officer to record his reasons in writing for search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset for the concealment of evidence or facility for the escape of an offender.

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Having regard to the overall facts and circumstances of the case and Considering arguments advanced by learned counsel for the petitioners without expressing any opinion on the merits/demerits of the case, I deem it just and proper to accept the instant bail applications.

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Thus, the second applications for bail are allowed and it is directed that accused petitioners Rajesh Dhakar S/o Shri Ghisulal and Harvinder Singh S/o Shri Gurunam Singh arrested in connection with FIR No.165/2023 PS Chechat, Kota Rural shall be released on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the learned trial court with the stipulation that each of them shall appear before that

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Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

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It is made clear that the petitioners shall not involve in any other similar offence during currency of the bail. They shall mark their presence in the concerned police station on first monday of every month till currency of trial. In case, any breach of these condition is reported or come to the notice of the Court, the trial court can cancel the bail granted to him by this Court.

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The observation made hereinabove is only for decision of these bail applications and will not impact trial in any manner.

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(ANIL KUMAR UPMAN),J

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LALIT MOHAN /84-85

Rajesh Dhakar S/O Ghisulal v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Rajesh Dhakar S/O Ghisulal v. State of Rajasthan

Case brief

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What did the court decide?

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