Allowed

Golu Alias Shyambabu S/O Shri Pannalal v. State of Rajasthan

Rajasthan HC1 Feb 2024CRLMB/670/2024

Case brief

AI extract

What is this about?

This single bench judgment of the Rajasthan High Court granted bail to an accused facing NDPS charges under Section 439 Cr.P.C., noting prima facie violations of Section 52A(2) regarding sample collection and delays in FSL deposition.

What did the court decide?

Petitioner released on bail with a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, subject to conditions including monthly police appearance.

Golu Alias Shyambabu S/O Shri Pannalal Vs State of Rajasthan — Bail and Remand | Rajasthan HC (2024)

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[2024:RJ-JP:5591]

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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. 670/2024

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Golu Alias Shyambabu S/o Shri Pannalal, Aged About 24 Years, R/o Semali Jageer, Police Station Kamakheda, District Jhalawar (Rajasthan) (Presently Confined In District Jail At Baran)

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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. Narsi Prasad Sharma For Respondent(s) : Mr. M.K. Sheoran, PP

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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Order

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01/02/2024

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This second application for bail under Section 439 Cr.P.C. has been filed on behalf of the accused-petitioner who is in custody since 09.04.2023 in connection with FIR No.76/2023 registered at Police Station Kawai, Baran, for offence under Section 8/21 of the NDPS Act. After investigation, the police has filed chargesheet for before the learned court below.

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The first bail application (No.12489/2023) filed on behalf of the accused petitioner was dismissed as withdrawn by this Court vide order dated 09.11.2023 with liberty to file fresh bail application after recording statement of seizure officer at trial. The statement of the seizure officer has been recorded at trial and as such, this second application for bail under Section 439 Cr.P.C. on behalf of accused petitioner has been filed.

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It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contends that the petitioner has nothing to do with the alleged recovery of smack weighing 260 grams. He contends that as per the prosecution case, contraband was recovered from the accused Pannalal and he was accompanying Golu @ Shyam Babu, petitioner herein and Mansingh on a motorcycle and the petitioner was driving the motorcycle. Apart from that, he contends that work of drawing sample was not done in accordance with the provisions of sub-section 2 of Section 52A of the NDPS Act. He argues that the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. However, there is total non-compliance of this provision of law. In support of this contention, learned counsel places reliance upon the judgments passed in the cases of (1) Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749 and (2) Mangilal vs State of Madhya Pradesh: 2023 SCC online SC 862.

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He also submits that the inventory report has not been submitted along with the chargesheet. Further, the samples have been sent to FSL on 27.04.2023 whereas the same have been alleged to have taken on 09.04.2023. While referring to the Standing Order No.1/88 dated 15.03.1988, he submits that according to the said Standing Order, samples should be deposited in FSL within 72 hours from the time of drawing samples and thus, there is also violation of the SO. Further, no independent witness was associated during the search and seizure proceedings, which

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also creates doubt on the prosecution story. Lastly, he contends that the alleged contraband, recovered from the co-accused Pannalal is marginally above the commercial quantity. The petitioner is behind the bars since 09.04.2023 and trial will take considerable time in its conclusion. The petitioner does not have any criminal antecedents. He thus, prays that the instant bail application may be accepted and the petitioner may be released on bail.

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Per contra, learned Public Prosecutor vehemently opposed the bail application on the ground that recovered contraband comes within the definition of commercial quantity and the petitioner has been apprehended at the spot and thus, considering the embargo contained in Section 37 of the NDPS Act, bail should not be granted.

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

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Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable

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reading, which does not call for meticulous examination of the material collected during investigation.

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Considering the overall facts and circumstances of the case especially the fact that as per the prosecution case, the recovery has been made from co-accused Pannalal and prima facie, there is non-compliance of provisions of Sub-Section 2 of Section 52A NDPS Act; inventory report has not been annexed with the chargesheet; the samples were deposited in the FSL after nearly sixteen days of the alleged recovery; absence of criminal antecedents as also looking to the custody period of the petitioner but without commenting anything on the merits/demerits of the case, I deem it just and proper to accept the instant bail applications.

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This bail application is accordingly, allowed and it is directed that accused-petitioner Golu @ Shyambabu S/o Shri Pannalal, who has been in custody in connection with FIR No.76/2023 Police Station Kawai, Baran shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac Only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each to the satisfaction of the learned Trial Court with the stipulation that he shall appear before that 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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However, it is made clear that the petitioner shall not involve in similar offence(s) during currency of bail granted by this Court. The petitioner is further directed to mark his presence in the concerned police station once in a month, till trial is concluded. If breach of any of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial court to cancel the bail granted to them by this Court.

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(ANIL KUMAR UPMAN),J

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Sudhir Asopa/16

Golu Alias Shyambabu S/O Shri Pannalal v. State of Rajasthan

Case brief

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Golu Alias Shyambabu S/O Shri Pannalal v. State of Rajasthan

Case brief

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