Balchand S/O Nandlal Vs the State of Rajasthan

This bail application under Section 483 BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.114/2024 registered at Police Station Morak, District Kota Rural for offence punishable under Section 8/15 of NDPS Act. After completion of investigation, police filed charge-sheet in this matter.

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Learned counsel for the petitioner submits that petitioner has falsely been implicated in this case. Counsel submits that petitioner is in custody since 12.05.2024, and as such, he has suffered incarceration of about 1 year and 8 months. It is submitted that the provisions of Section 42 of NDPS Act have not been complied with properly. It is submitted that Seizure Officer has clearly admitted in his testimony, that immediate superior officer was not informed about the recovery which was allegedly

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affected accidentally. Counsel has relied upon the judgment passed by Hon’ble Supreme Court in the case of Mohinder Kumar versus State of Goa , reported in AIR 1995 (SC) 1157. It is submitted that by the ratio in Mohinder Kumar (supra) , it has been emphatically held that from the very moment, a police officer gets to know of the possession or recovery of contraband, he is obliged in law to scrupulously follow the mandatory provisions of the NDPS Act. The officer, from that stage itself, ceases to be a mere police officer under the Cr.PC and is expected to act according to the safeguards and procedures prescribed under the NDPS Act. Any infraction in adhering to these statutory requirements contaminates the entire search, seizure, and prosecution thereafter. 3. Counsel contends that bare perusal of the testimony of the Seizure Officer would reveal that on the pretext of an accidental search, the mandatory provisions of the NDPS Act were not adhered to. It is also contended that the log book of the government vehicle used by the raiding party has been deliberately withheld and not filed along with the charge-sheet. The memos purportedly prepared at the place of recovery indicate that the entire case was, in fact, concocted at the police station. Inviting the attention of this Court on the testimony of the Seizure Officer, Counsel submits that it has candidly been admitted by the Seizure Officer that none of the articles bear the signature of the petitioner. Counsel further submits that despite the availability of the independent witnesses, no independent witness was associated during the search and seizure proceedings. Counsel

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submits that in cross-examination of the Seizure Officer, he has admitted the fact that the place of recovery is a main chauraha (cross-road). It has also been admitted by the Seizure Officer that there is a hotel just opposite to Modi Ji Ki Kothi, where the passengers wait for buses going towards Morak, Kota & Jhalawar and there is also a private taxi stand. At the place of recovery, there is a four lane over-bridge and nearby, a Government Hospital as well as some road side restaurants are also situated which runs 24x7. Counsel further submits that association of the independent witnesses contemplated under Section 100 of the Cr.P.C is not a mere formality and concerned officer is required to make all endeavour to associate the independent witnesses from the same vicinity. He cannot escape from his obligation merely by saying that a person refused to become an independent witness and if any person refuses to become a witness, his name should be recorded and proper action should be initiated against him for disobeying the order of the public servant. Counsel further submits that alleged recovery was made on 11.05.2024 while application for preparing the inventory was submitted on 14.05.2024 and inventory was prepared on 24.05.2024 and same day samples were drawn however, samples were deposited in the FSL on 29.05.2024 with a delay of 5 days. Finally, it is urged that the continued incarceration of the petitioner serves no useful purpose, particularly looking to the fact that no other case is registered against him under the NDPS Act. It is contended that there are bleak chances of culmination of trial in near future as till date, only 1 prosecution witness has been examined out of 13

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cited prosecution witnesses. Further custody of the petitioner would not serve any fruitful purpose.

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Learned Public Prosecutor opposes the submissions made by learned counsel for the petitioner. He submits that considering the recovery of commercial quantity of contraband, the petitioner does not deserve indulgence of bail in view of Section 37 of the NDPS Act.

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I have considered the contentions. Perused the material available on record.

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It is settled that Section 37 of the NDPS Act does not impose an absolute embargo on grant of bail. While considering bail, the Court is not required to record a positive finding of innocence; rather, it must assess, prima facie, whether the accused may not be guilty, upon a reasonable and broad evaluation of the material on record. Meticulous examination of evidence is not warranted at this stage.

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The petitioner has been in custody for more than eighteen months, and there appears no likelihood of early conclusion of trial. Thus, the petitioner’s fundamental right to speedy trial, guaranteed under Article 21 of the Constitution of India, stands infringed. Prolonged incarceration generally militates against the cherished right to personal liberty, and in such a situation, conditional liberty must override the statutory embargo under Section 37 of the NDPS Act as held by Hon'ble Supreme Court in series of cases.

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Having regard to the totality of the facts and circumstances of the case; considering the arguments advanced by learned

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counsel for the parties as noted above, especially considering the statement of the Seizure Officer, as also considering the fact that there are no criminal antecedents against the petitioner and trial will take considerable time in its conclusion as well as looking to the custody period which is more than eighteen months, but without commenting anything on the merits/demerits of the case, I deem it proper to allow the second bail application.

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This bail application is accordingly allowed and it is directed that accused-petitioner Balchand son of Nandlal shall be released on bail provided he furnishes a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lakh only) together with two sureties in the sum of Rs.2,50,000/- (Rupees Two Lakh 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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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, till conclusion of the trial.

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Concerned SHO shall enter attendance of the petitioner in the Roznamcha. 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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