Dismissed

Shoukin S/O Suleman v. Ncb

Rajasthan HC5 Apr 2024CRLMB/649/2024

Case brief

AI extract

What is this about?

This is a second bail application under Section 439 Cr.P.C. in an NDPS case. The High Court rejected the bail plea primarily due to the huge quantity of commercial goods recovered, though it directed the trial court to conclude the trial within six months and allowed the petitioner to renew the prayer if this deadline is missed.

What did the court decide?

Bail application dismissed; trial directed to conclude within six months; liberty to renew bail prayer if trial delayed.

Shoukin S/O Suleman Vs Ncb — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:15925]

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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. 649/2024

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Shoukin S/o Suleman, Aged About 38 Years, R/o Neemla, Post Olanda, Police Station Kaithwada, Tehsil Kaman, District Bharatpur (Raj.) (Presently Confined In District Jail, Bharatpur).

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----Petitioner

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Versus

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NCB, through Special PP

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----Respondent

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For Petitioner(s) : Mr. Rajveer Singh Gurjar For Respondent(s) : Mr. Tej Prakash Sharma, Special PP for NCB

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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O R D E R

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DATE OF PRONOUNCEMENT :- 05/04/2024

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This is a second bail application under Section 439 Cr.P.C. filed on behalf of the petitioner who has been in custody in connection with FIR No.VIII(IO)08/NCB/ASZ/2021 registered on 24.10.2021 at NCB, Sub-Zone, Ajmer for offences punishable under Sections 8/20, 8/25 and 8/29 of the NDPS Act.

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Learned counsel for the petitioner submits that the previous bail application (No.8847/2023) filed on behalf of the petitioner was dismissed as withdrawn by this Court vide order dated 19.07.2023 with liberty to renew the prayer for bail after recording statement of the seizure officer. The testimony of seizure officer has been recorded as PW.2 and after recording his evidence at trial, the petitioner has filed this bail application.

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Learned counsel submits that the accused petitioner has falsely been implicated in this case. He contends that from the testimony of the seizure officer, it appears that no contraband was recovered from the possession of the petitioner. Counsel further contends that according to the inventory report prepared by the learned magistrate, some dark green colour leafy substance was found in the bags seized by the seizure officer. Counsel submits that "seeds and leaves alone" are excluded from the ambit of Ganja as defined in Section 2(iii)(b) of the NDPS Act. The said provision reads as follows:-

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"“Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated.”

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Learned counsel for the petitioner submits that Section 55 of the said Act provides that an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station. Learned counsel contends that evidently till the order of the Magistrate is obtained the seized narcotics should not have been unsealed, otherwise it vitiates its sanctity. Learned counsel further submits that the forensic report would reveal that different substance was found in the FSL. As per the FSL report, samples were in the form of dried fruiting and flowing tops along with twigs and seeds. Both the reports i.e., inventory report and FSL report reveal that the substance which was received in the FSL was not the same which was allegedly

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recovered from the possession of the petitioner. The petitioner is in custody since 26.10.2021 and thus, he has been behind the bars for nearly two years and five months and trial will take long time. He has placed reliance upon the following judgments passed by Hon'ble Apex Court as well as of this Court in which period of incarceration has been considered relevant for grant of bail:-

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Raju Ram vs State of Bihar : (2023) 1 Supreme 670

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Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir (Special Leave to Appeal (Crl.) No.3961/2022

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Amit Singh Moni Vs. State of Himachal Pradesh : Crimial Appeal No.668/2020

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Tapan Das vs. UOI (Special Leave to Appeal (Criminal) No.5617/2021

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Ghanshyam Sharma vs. State of Rajasthan (Special Leave to Appeal (Criminal) No.5397/2019

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Nadeem vs State of UP (Special Leave to Appeal (Criminal) No.1524/2022

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Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd Bail Application No.16118/2022, decided on 04.01.2023)

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Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail Application No.426/2023, decided on 17.02.2023)

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Learned counsel submits that in the case of Raju Ram (supra), it has been held that on the basis of period of incarceration, bail can be granted by relaxing the provision of Section 37 of the NDPS Act. The petitioner does not have any criminal antecedents. He thus, prays that the instant bail application may be accepted.

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Per contra, learned Special Public Prosecutor for NCB vehemently opposes the bail application on the ground that huge quantity of contraband Ganja weighing 524 Kgs. has been recovered from the petitioner which comes within the definition of commercial quantity. The petitioner has been apprehended at the spot. He thus submits that considering the embargo contained in Section 37 of the NDPS Act, bail should not be granted. It is also contended by learned Special Public Prosecutor that the bail application of the co-accused Kartar Singh, who has been chargesheeted in this case with the aid of Section 29 of the NDPS Act, has also been dismissed by coordinate Bench of this Court.

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I have considered the arguments advanced by learned counsel for the petitioner as well as learned Special Public Prosecutor and perused the material available on record.

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8 As per the record, the samples were drawn in presence of the magistrate and inventory was prepared and the same samples were deposited with the FSL wherein it was opined that recovered contraband is Ganja. So far as the argument of the counsel for the petitioner regarding period of incarceration suffered by the petitioner is concerned, this Court is of the considered opinion that period of custody cannot be a sole ground to release the petitioner on bail more particularly when huge quantity of contraband was allegedly recovered from the petitioner. The bail application of the co-accused Kartar Singh, who has been charge-sheeted in this case with the aid of Section 29 of the NDPS Act, has been rejected by coordinate bench of this Court. Thus, prima facie, the

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[2024:RJ-JP:15925]

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[CRLMB-649/2024]

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conditions of Section 37 of the NDPS Act are not satisfied in the instant case and thus, considering the rigour of Section 37 of the NDPS Act, but without commenting anything on the merits of the case, I am not inclined to accept the instant bail application, filed on behalf of the petitioner. Accordingly, this second bail application is dismissed.

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However, considering the period of custody, the trial court is directed to make all endeavours to conclude the trial within six months from today. If the trial is not concluded within the aforesaid time period, the petitioner would be at liberty to renew the prayer of bail.

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(ANIL KUMAR UPMAN),J

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Sudhir Asopa/

Shoukin S/O Suleman v. Ncb

Case brief

What is this about?

What did the court decide?

Shoukin S/O Suleman v. Ncb

Case brief

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