Rajasthan High Court - Jodhpur

Narain Lal vs State Of Rajasthan (2023:Rj-Jd:32963) on 4 October, 2023

Author:
Kuldeep Mathur

Bench:
Kuldeep Mathur

[2023:RJ-JD:32963]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 12080/2023

Narain Lal S/o Daya Ram Jat, Aged About 30 Years, R/o Bhutiya
Khurd, Bhadesar Police Station District Chittorgarh.
(Lodged in District Jail, Chittorgarh)
----Petitioner
Versus
State of Rajasthan, through P.P.
----Respondent

For Petitioner(s) : Mr. B. Ray Bishnoi
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

04/10/2023
This application for bail under
Section 439
Cr.P.C. has been

filed by the petitioner who has been arrested in connection with

F.I.R. No.180/2022 registered at Police Station Bhadesar, District

Chittorgarh for the offences under
Sections 8
/
and
/
of the

NDPS Act.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

Learned counsel for the petitioner submitted that as per

prosecution, on 08.11.2022, the SHO, Police Station Bhadesar,

District Chittorgarh flagged down a car bearing registration

No.GJ08-BS-6609. Learned counsel further submitted that two

persons were sitting in the car, who on seeing the police party,

tried to flee away from the spot. Learned counsel submitted that

as per prosecution, one person namely Narayan S/o Shankar Lal

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Jat was apprehended by the police on the spot however, the

petitioner was successful in fleeing away from the place. Learned

counsel submitted that after observing mandatory formalities, the

police team recovered contraband (poppy husk/poppy straw)

weighing 134 kg. from the offending vehicle.

Learned counsel submitted that the petitioner has been

falsely roped in the present case. Learned counsel submitted that

recovery of contraband was made on 08.11.2022, the sample of

contraband were sent to the FSL only on 15.11.2022 i.e. after

seven days of the alleged recovery; that the samples have been

sent to the FSL after 72 hours of the seizure, whereas as per

Clause 13 of Standing Order No.01/88 issued by the Narcotic

Control Bureau, the samples are required to be sent for FSL

examination within 72 hours of the seizure. It was submitted that

in the present case, the samples were sent beyond the 72 hours

period and thus, the possibility of samples being tampered with

cannot be ruled out. Learned counsel submitted that co-accused -

Narayan S/o Shankar Lal Jat who was arrested by police on the

spot has already been enlarged on bail by a co-ordinate Bench of

this Court vide order dated 22.06.2023. Learned counsel

submitted that the case of the present petitioner is not

distinguishable from that of the co-accused - Narayan S/o

Shankar Lal Jat who has already been enlarged on bail.

Learned counsel submitted that the petitioner was not

arrested on the spot and the contraband greater than was not

recovered from conscious possession of the petitioner; challan

against the petitioner has already been filed; the petitioner is in

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judicial custody and the trial of the case will take sufficiently long

time.

On these grounds, he implored the court to enlarge the

petitioner on bail.

The order dated 22.06.2023 passed in S.B. Criminal Misc.

Bail Application No.7644/2023 is reproduced for ready reference:

"1. The prayer made in this bail petition filed under
Section
of the Code of Criminal Procedure (for short "the
Code") is for grant of bail in connection with crime
registered pursuant to First Information Report Number
180/2022 of Police Station Bhadesar, District Chittorgarh in
respect of offence(s) punishable under Section(s) 8 / 1 5 a
n d 2 9 o f t h e Narcotic Drugs and Psy-chotropic
Substances Act (hereinafter to be referred as "the
NDPS
Act
").

2. Heard the arguments advanced by learned counsel for
the applicant, learned public prosecutor and carefully
perused the en-tire material available in case diary.

3. The accusation against the petitioner-accused is that
S.H.O. Shankar Lal Rao of Police Station Bhadesar, District
Chittorgarh, on 08.11.2022 along with other police officials
was on patrol duty for checking crimes at the road leading
from Bhadesar to Mandfiya. A check post was set-up
besides the road. It is alleged that at about 01.30 PM, a car
bearing registration number GJ-08-BS-6609 came at a very
high speed which was stopped, in which 2 persons were
aboard. Seeing the police party, the driver tried to reverse
the car but failed. He got down from the car and fled away.
The other person in the car was apprehended, on being
asked the name and address, he disclosed his name as
Narayan s/o Shankarlal and the name of the fleeing person
as Narayan s/o Dayaram. After due formalities, the police
team proceeded to search the vehicle from which, 134 Kgs.
of poppy-straw was recovered.

4. After investigation, charge-sheet was filed against
petitioner-accused and investigation has been kept pending

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against other co-accused Narayan s/o Dayaram and Ratan
Lal under section 173(8) of the criminal Procedure Code.

5. Petitioner Narayan S/o Shanker Lal Jat was arrested on
08.11.2022 since then, he is in custody and has
approached thisCourt by way of this application for bail
preferred under
Section439
Cr.P.C.

6. Learned counsel appearing for the accused has argued
that there was delay in sending the samples of alleged
contraband to the laboratory. As per record of the charge-
sheet, the recovery of the poppy-straw was made on
08.11.2022 and the packets of sample were received in the
laboratory only on 15.11.2022 i.e. af-ter 7 days of the
alleged recovery; that the samples have been sent to the
FSL after 72 hours of the seizure whereas as per Clause 13
of Standing Order No. 01/88 issued by the Narcotic Control
Bureau, the samples were required to be sent to FSL for
testing within 72 hours of seizure to maintain the reliability
of the samples. In the present case, the said mandatory
direction has not been complied with, therefore, the
possibility of tampering with the samples cannot be ruled
out. It is further contended that there is no such document
on the record that can explain the rea-sons for this delay,
therefore, the possibility of change in the sam-ple cannot
be ruled out. It is further submitted that investigation is
complete and the petitioner has already been in custody
since 08.11.2022. There is no other case against the
petitioner. Reliance has been placed on the decision of

State of Uttar Pradesh vs. Hansraj @ Hansu
2019 (1) CJ
(Cri.) 93 rendered by Hon'ble the Supreme Court.

7. Learned counsel for the State has opposed the grant of
bail but he is not in a position to controvert the above
mentioned date of recovery of contraband and date of
receipt issued by the FSL. It is argued that the petitioner is
involved in drug peddling. The re-covery from him is of
commercial quantity and the bar as con-tained in
Section
of the NDPS Act is attracted. He thus craves rejection of
the petitioner's bail application.

8. The petitioner has been in custody for sufficient period.
After completion of investigation, the charge sheet has

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already been filed. Trial is likely to consume time and no
useful purpose would be served by keeping him in
detention for an indefinite period. The petitioner is not
involved in any other case under the
NDPS Act
. The point
raised regarding delay in sending the sample to FSL and its
consequences is a matter of trial. However, in the present
case sufficient mitigating circumstances are made out to
extend the concession of bail to the petitioner in view of
decision of
State ofUttar Pradesh vs. Hansraj @ Hansu

reported in 2019 (1) CJ (Cri.)93.

9. Keeping in view the above facts and without commenting
upon the merits of the case, this Court feels that the
accused has available to him, substantial ground so as to
question the case of the prosecution and restriction
imposed by
Section 37
of the NDPS Act are duly satisfied.
Therefore, I deem this to be a fit case for grant of regular
bail to the petitioner.

10. Consequently, the present bail application is allowed
and it is directed that the accused-petitioner Narayan S/o
Shankar Lal Jat, arrested in connection with the F.I.R. No.
180/2022, registered at Police Station Bhadesar, District
Chitrtograrh shall be released on bail provided he furnishes
a personal bond and two surety bonds of sufficient amount
to the satisfaction of the learned trial court with the
stipulation to appear before that Court on all dates of
hearing and as and when called upon to do so. This order is
sub-ject to the condition that accused, within 7 days of his
release and sureties, on the day of furnishing bail, will also
furnish details of their all bank accounts, with bank and
branch name, in shape of an affidavit, and submit legible
copy of their Aadhar cards as well as front page of Bank
pass book, for smooth recovery of penalty amount, if there
arise a need for recovery of penalty under Sec-tion 446

Cr.P.C
in future."

Per contra, learned Public Prosecutor has vehemently

opposed the bail application. However, he was not in a position to

refute the fact that above-named co-accused person has already

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been enlarged on bail by a co-ordinate Bench of this Court vide

order dated 22.06.2023.

Having considered the rival submissions, facts and

circumstances of the case, so also the fact that above-named co-

accused person has already been enlarged on bail by a co-ordinate

Bench of this Court vide order dated 22.06.2023, this Court

without expressing any opinion on merits/demerits of the case

deems it just and proper to enlarge the petitioner on bail.

Consequently, the bail application under
Section 439
Cr.P.C.

is allowed. It is ordered that the accused-petitioner - Narain Lal

S/o Daya Ram Jat arrested in connection with F.I.R.

No.180/2022 registered at Police Station Bhadesar, District

Chittorgarh shall be released on bail, if not wanted in any other

case, provided he furnishes a personal bond of Rs.1,00,000/- and

two sureties of Rs.50,000/- each, to the satisfaction of learned

trial court, for his appearance before that court on each & every

date of hearing and whenever called upon to do so till completion

of the trial.

(KULDEEP MATHUR),J
868-Ravi Khandelwal

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