Mahendra @ Babu S/O Hariram Vs State of Rajasthan

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Criminal Miscellaneous Bail Application No. 1637/2025

Mahendra @ Babu S/o Hariram, Aged About 20 Years, R/o Ward No. 15, Meeno Ka Mohalla, Tan Thoi, Police Station Thoi, Rajasthan (Raj.) (At Present Lodge At Sub District Jail Khetri, District Jhunjhunu (Raj.)

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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)	: Ms.	Sonal Gupta with
	Mr.	Sudhir Yadav &
	Mr.	Kiran Yadav
For Respondent(s)	: Mr.	N.S. Dhakar,PP

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HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

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Order

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13/08/2025

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This instant bail application has been filed under Section 483 of BNSS on behalf of the petitioner, who has been arrested in connection with FIR No.51/2024 registered at Police Station Khetri Nagar, District Neem Ka Thana (Rajasthan) for the offence punishable under Section 8/21 of NDPS Act. After completion of investigation, police filed charge-sheet in this matter for the offences punishable under Sections 8/21 and 8/29 of NDPS Act.

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Learned counsel for the petitioner submits that petitioner has falsely been implicated in this case. Counsel submits that there is total non-compliance of mandatory provisions of NDPS Act. Counsel submits that admittedly, while effecting the seizure, no independent witness was associated by the investigating agency,

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despite availability. Counsel submits that simply saying that person refused to become a witness is not enough and there is ample provision in the BNSS that if any person refuses to become a witness in the proceedings, action can be taken against him. Counsel submits that it is apparent from the record that there is no reference of the name of the persons who refused to become a witness. Counsel also relies upon the order passed by Hon’ble Apex Court in the case of Ankur Chaudhary vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No.4648/2024 whereby bail was granted to the accused after considering the fact that panch witnesses have not supported the case of prosecution as also considering that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India. 3. Counsel further submits that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides power of a police officer of making entry, search, seizure and arrest without warrant or authorization in any building, conveyance or enclosed place between sunrise and sunset, if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. 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

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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. It is submitted that as soon as, it came to the knowledge of the police team that it is a case of recovery of narcotic drugs and psychotropic substance, it was incumbent upon the police party to follow the provisions of NDPS Act but no memo in terms of Section 42 of the NDPS Act was prepared by the seizure officer. 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. Counsel submits that admittedly, alleged recovery was made on 08.04.2024 however, inventory has been prepared on 29.04.2024 and samples were deposited in FSL on 15.05.2024. Counsel submits that for this delay there is no plausible reason available on record. It is contended that there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion. Counsel submits that petitioner is in custody since 09.04.2024 and as such, he has suffered incarceration of about one year and four months. It is submitted that Hon’ble Supreme Court has taken the view in the matter of Devendra Kumar Mishra @ Bade Guru vs. The State of Madhya Pradesh in Special Leave to Appeal (Crl.) No.14639/2023 that on the ground of period of incarceration suffered by accused, bail application under the NDPS Act can be considered for grant. Further reliance has been placed upon the judgment of Hon’ble Supreme Court in the case of Shambhulal Gurjar @ Rohit vs. State of Rajasthan in Special Leave to Appeal (Crl.)

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No.16671/2024 wherein after taking note of the fact that three other cases under the NDPS Act have been registered against the petitioner, facility of bail was granted to the accused considering the period of incarceration. Further custody of the petitioner would not serve any fruitful purpose.

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Learned State Counsel opposes the prayer of bail made by learned counsel for the petitioner. He submits that the recovered contraband is of commercial quantity therefore, considering the rigour of Section 37 of the NDPS Act, benefit of bail should not be granted to the petitioner. Counsel relies upon the order passed by Hon’ble Apex Court in the case of Jagwinder Singh Vs. State of

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Punjab reported in 2023 SCC OnLine SC 2325 wherein it has been observed that law does not require only an independent witness to prove a charge attracting the provision of NDPS Act. He further places reliance upon the judgment passed by Hon’ble Apex Court in the case of Sathyan Vs. State of Kerala reported in (2023) 13 SCC 767 wherein it has been observed that testimony of official witnesses cannot be discarded simply because independent witnesses were not examined.

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I have considered the contentions.

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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

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may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during investigation.

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Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned counsel for the parties, especially considering the observations made by Hon’ble Apex Court in several judgments wherein considering the period of incarceration suffered by the accused, facility of bail has been granted, as also considering the fact that petitioner is languishing in jail since 09.04.2024, there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion, but without commenting anything on the merits/demerits of the case, I deem it fit and proper to allow this bail application.

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This bail application is accordingly allowed and it is directed that accused-petitioner - Mahendra @ Babu S/o Hariram shall be released on bail provided he 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 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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It is made clear that the accused-petitioner shall not involve in any other offence(s) during currency of the bail and he shall mark his presence in first week of every month in the concerned police station.

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Concerned SHO is directed to maintain a register recording the attendance of the petitioner. In case the petitioner fails to mark his presence in the concerned police station, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard.

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If any breach 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 him by this Court.

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Office is directed to send a copy of this order to the concerned SHO for necessary compliance.

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The observations made hereinabove are only for decision of the instant bail application and would not have any impact on the trial of the case in any manner.

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(ANIL KUMAR UPMAN),J

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LALIT MOHAN /77

Mahendra @ Babu S/O Hariram v. State of Rajasthan

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Mahendra @ Babu S/O Hariram v. State of Rajasthan

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