Sunil vs State Of Rajasthan (2025:Rj-Jd:29270) on 7 July, 2025

Rajasthan High Court – Jodhpur

Sunil vs State Of Rajasthan (2025:Rj-Jd:29270) on 7 July, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:29270]

           HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR
     S.B. Criminal Miscellaneous 3rd Bail Application No. 5936/2025

Sunil S/o Ranaram, Aged About 24 Years, R/o Savrij P.s. Phalodi
Dist. Jodhpur Rajasthan Presently Lodged In Dist. Jail Pali
                                                                       ----Petitioner
                                        Versus
State Of Rajasthan, Through Pp
                                                                     ----Respondent


For Petitioner(s)             :     Mr. Ashok Khillery
For Respondent(s)             :     Mr. Surendra Bishnoi, AGA



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

07/07/2025

1. The jurisdiction of this Court has been invoked by way of

filing the instant third bail application under Section 483 BNSS at

the instance of accused-petitioner. The requisite details of the

matter are tabulated herein below:

 S. No.                           Particulars of the Case
      1.      FIR Number                         145/2023
      2.      Concerned Police Station           Sendara
      3.      District                           Pali

4. Offences alleged in the Section 8/15 of the NDPS Act
FIR

5. Offences added, if any Section 8/25 of the NDPS Act

6. Date of passing of 23.04.2025
impugned order

2. At the time of dismissing the second bail application of the

petitioner as not pressed this Court vide order dated 26.11.2024

passed in SBCRLMB No.13306/2024 but liberty was afforded to

the petitioner to renew the prayer for bail after the statement of

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Investigating Officer is recorded. Hence the instant bail

application.

3. Bereft of elaborate details, the facts necessary for disposal of

the instant bail application are that on the basis of secret

information received from a confidential informant, the Station

House Officer, Police Station Sendra, along with the police force,

intercepted an XUV vehicle bearing registration number HR 26-

BQ-2144. Upon search, 14 black plastic sacks and one white sack

containing poppy husk were recovered from the vehicle. The

driver managed to flee from the spot, while the applicant/accused

Sunil, who was seated in the front passenger seat, was

apprehended. No valid license or permit was found in his

possession for the said contraband. Accordingly, a case was

registered against Sunil under Section 8/15 of the NDPS Act, and

a chargesheet has been filed. The investigation under Section

173(8) CrPC remains pending against co-accused Mahendra and

Vinod @ Unkarlal. The seizure officer PW-1 Dholaram has been

examined, and the case is presently at the stage of prosecution

evidence. Hence the instant bail application.

4. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are no factors at play in the

case at hand that may work against grant of bail to the accused-

petitioner and he has been made an accused based on conjectures

and surmises.

5. Contrary to the submissions of learned counsel for the

petitioner, learned Special Public Prosecutor opposes the bail

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application and submits that the present case is not fit for

enlargement of accused on bail.

6. I have considered the submissions made by the parties and

have perused the material available on record.

7. It is the case of the prosecution that the petitioner is in

custody since 09.06.2023 in connection with recovery of 14

plastic sacks containing 305.480 Kg poppy husk however, the

driver of the vehicle managed to abscond from the spot, whereas

the petitioner was seated in the front passenger seat, was

apprehended on the spot. He is not indulged in case of similar

nature. Co-accused Unkar Lal @ Vinod has already been enlarged

on bail vide order dated 31.05.2024 passed in SBCRLMB

No.5898/2024. Furthermore, out of total 21 witnesses only four

witnesses have examined and trial will surely take a long time to

its conclusion.

8. In the case of V.D. Roy, the law has very elaborately

discussed and even in that case Hon’ble the Supreme Court has

propounded that the High Court should not hesitate to quash such

proceedings upon noticing of non-compliance of mandatory

provisions of NDPS Act by exercising inherent powers under

Section 482 Cr.P.C. Here, is a question of bail only if the recovery

vitiates on the ground raised then the embargo contained under

Section 37 of the NDPS Act would not come in the way of

granting bail to the petitioner. The other grounds with regard to

flouting the rules of 3,8,9 & 13 of the NDPS Rules of 2022 and the

guidelines issued by the Government issued vide Standings Order

Nos.1/1988 & 1/1989 is a serious question which if decided in

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favour of the accused, then his conviction won’t be possible to be

made since the report of FSL regarding samples taken at the spot

by the Seizing Officer would not be sufficient.

9. It would be worthwhile to mention here that by virtue of

powers given under Section 52-A r.w. Section 76 of the NDPS Act,

the Central Govt. Department of Finance issued a Gazette

Notification dated 23.12.2022 regarding classification, seizing,

sealing, storing, taking samples of the contraband etc. called as

Narcotic Drugs and Psychotropic Substances (seizure,

search, sampling and disposal), Rules 2022 (hereinafter referred

as ‘the Rules of 2022’). The said Rule came into force from

23.12.2022. It would be relevant to reproduce certain provisions,

which are as under:-

3. Classification of seized material. –

(1) The narcotic drugs, psychotropic substances and
controlled substances seized under the Act shall be
classified based on physical properties and results of
the drug detection kit, if any, and shall be weighed
separately.

(2) If the narcotic drugs, psychotropic substances and
controlled substances are found in packages or
containers, such packages and containers shall be
weighed separately and serially numbered for the
purpose of identification.

(3) All narcotic drugs, psychotropic substances and
controlled substances found in loose form shall be
packed in tamper proof bag or in container, which shall
be serially numbered and weighed and the particular of
drugs and the date of seizure shall also be mentioned
on such bag or container:

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Provided that bulk quantities of ganja, poppy straw
may be packed in gunny bags and sealed in such way
that it cannot be tempered with:

Provided further that seized concealing material such
as trolley bags, backpack and other seized articles shall
be sealed separately.

(4) The classification, weighing, packaging and
numbering referred to in this sub-rule shall be done in
the presence of search witnesses (Panchas) and the
person from whose possession the drugs and
substances was recovered and a mention to this effect
shall invariably be made in the panchnama drawn on
the spot of seizure.

(5) The detailed inventory of the packages, containers,
conveyances and other seized articles shall be prepared
and attached to the panchnama.

6. ………

7. ……..

8. Application to Magistrate. – After the seized
material under the Act is forwarded to the officer-in-
charge of the nearest police station or to the officer
empowered under section 53 of the Act or if it is seized
by such an officer himself, he shall prepare an
inventory of such material in Form-4 and apply to the
Magistrate, at the earliest, under sub-section (2) of
section 52A of the Act in Form-5.

9. Samples to be drawn in the presence of
Magistrate. – After application to the Magistrate under
sub-section (2) of section 52A of the Act is made, the
Investigating Officer shall ensure that samples of the
seized material are drawn in the presence of the
Magistrate and the same is certified by the magistrate

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in accordance with the provisions of the said-sub-
section.

10. ……..

11. ……..

12. ……..

13. Despatch of sample for testing. –

(1) The samples after being certified by the Magistrate
shall be sent directly to any one of the jurisdictional
laboratories of Central Revenue Control Laboratory,
Central Forensic Science Laboratory or State Forensic
Science Laboratory, as the case may be, for chemical
analysis without any delay.

(2) The samples of seized drugs or substances shall be
despatched to the jurisdictional laboratories under the
cover of the Test Memo, which shall be prepared in
triplicate, in Form-6.

(3) The original and duplicate of the Test Memo shall
be sent to the jurisdictional laboratory alongwith the
samples and the triplicate shall be retained in the case
file of the seizing officer.

A combined reading of Rules 3, 8, 9 & 13 of the Rules of

2022 manifesting that after seizure of the contraband, the

officer has to move an application to the Magistrate and

whereafter, the samples are supposed to be taken in his

presence and whereafter the verified samples are supposed

to be sent to the Forensic Laboratory for the purpose of

detection of any Narcotic Drugs and Psychotropic Substance

in the seized article. Ostensibly, no such task has been

undertaken in this case and thus, it would be a serious

question of law as to whether the FSL report of the samples

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taken from the spot can be treated as a decisive piece of

evidence to substantiate the charge so as to punish him

under the NDPS Act.

10. Admittedly, in the case at hand, the samples which were

sent to the FSL were not sent after getting verification from the

Magistrate as envisaged under the Rules of 2022 aforesaid which

is direct contravention of the Rules of 2022.

11. Another aspect for consideration of the bail plea would be

that this Court is of the view that for the purpose of proving

charge only a reasonable period can be granted to the

prosecution while keeping an accused behind the bars. Still the

guilt is to be proved and as per the theory of Criminal

Jurisprudence, he shall be presumed innocent until the guilt is

proved. In a Sessions case, a trial ought to have commenced and

completed within a Session i.e. one year. When some unavoidable

circumstances are considered than it can be doubled, however in

any case a person cannot be detained for the purpose of giving

an opportunity to the prosecution to substantiate the charge as is

not desirable under the law. Right to have speedy trial is

guaranteed by the Constitution of India and herein this case the

same has been infringed owing to lackadaisical behavior of the

prosecution party in not presenting the witness in the trial within

a reasonable period. When there appears reasonable ground to

presume that certain infirmity or legal defect would be fatal to the

prosecution still not exercising power of granting bail would mean

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not honoring the guarantee of the Constitution given to every

individual regarding protection of his liberty.

12. This Court feels that though there is embargo contained

under Section 37 of the NDPS Act regarding grant of bail in

mattes pertaining to commercial quantity and some others and

true it is that bail can only be granted when the twin conditions

mentioned in the provision are satisfied but this Court feels that

expressing final opinion to the effect that there are no reasonable

ground to believe that the petitioner is not guilty may stifle or

abort the judicial proceeding in the midway and then there would

remain nothing for the trial Court to proceed further in the matter

and as such, the moment, the bail is granted by observing the

above in clear and express terms, it would be imperative for the

trial Court to either discharge or acquit him. The continuation of

the trial whereafter would be a futile exercise at one hand and on

the other hand the same would amounts to an abuse of process

of law. This Court is of the view that pending investigation or

pending trial if a serious legal defect is observed in the case of

the prosecution, which may prove fatal to the prosecution at the

time of conclusion then instead of giving a definite opinion that he

is not guilty of the offence, it would be suffice if the bail

application is allowed by giving reasons regarding observance of

legal defect only; but not by giving a final finding on that aspect.

The view of this Court is based upon the gist of the judgment

passed by Hon’ble the Supreme Court in the matter of Mohd

Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT

of Delhi) passed by Hon’ble the Supreme Court in Special Leave

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Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023,

wherein while discussing the parameters of Section 37 of the

NDPS Act, it was held that the provision cannot be construed in a

manner that would render the grant of bail impossible. The

accused-appellant in the aforementioned case was directed to be

enlarged on bail looking to the long period of incarceration. The

paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the

present matter are reproduced below:

“18. The conditions which courts have to be cognizant of
are that there are reasonable grounds for believing that
the accused is “not guilty of such offence” and that he is
not likely to commit any offence while on bail. What is
meant by “not guilty” when all the evidence is not before
the court? It can only be a prima facie determination.
That places the court’s discretion within a very narrow
margin. Given the mandate of the general law on bails
(Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915
of 2023, decided on 28.03.2023. 437 and 439, CrPC)
which classify offences based on their gravity, and
instruct that certain serious crimes have to be dealt with
differently while considering bail applications, the
additional condition that the court should be satisfied that
the accused (who is in law presumed to be innocent) is
not guilty, has to be interpreted reasonably. Further the
classification of offences under Special Acts (NDPS Act,
etc.), which apply over and above the ordinary bail
conditions required to be assessed by courts, require that
the court records its satisfaction that the accused might
not be guilty of the offence and that upon release, they
are not likely to commit any offence. These two
conditions have the effect of overshadowing other
conditions. In cases where bail is sought, the court
assesses the material on record such as the nature of the

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offence, likelihood of the accused co-operating with the
investigation, not fleeing from justice: even in serious
offences like murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such special Acts,
have to address itself principally on two facts: likely guilt
of the accused and the likelihood of them not committing
any offence upon release. This court has generally upheld
such conditions on the ground that liberty of such citizens
have to – in cases when accused of offences enacted
under special laws – be balanced against the public
interest.

19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied that
the accused is not guilty and would not commit any
offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the
only manner in which such special conditions as enacted
under Section 37 can be considered within constitutional
parameters is where the court is reasonably satisfied on a
prima facie look at the material on record (whenever the
bail application is made) that the accused is not guilty.
Any other interpretation, would result in complete denial
of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.”

(Emphasis Supplied)

13. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court

has again passed an order dated 13th July, 2023 dealing this

issue and has held that the provisional liberty(bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

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fundamental rights envisaged in the Constitution, that is, the

right to life and personal liberty contained in Article 21.

14. At the stage of hearing of a bail plea pending trial, although

this Court is not supposed to make any definite opinion or

observation with regard to the discrepancy and legal defect

appearing in the case of prosecution as the same may put a

serious dent on the State‘s case yet at the same time, this Court

can not shut its eye towards the non-compliance of the

mandatory provision, more than two years of incarceration

pending trial, failure of compliance with the procedure of

sampling and seizure and the serious issue of competence of

seizure officer. In the case of Mohd. Muslim @ Hussain (Supra)

it has been propounded that at the stage of hearing a bail

application under Section 439 Cr.P.C., although it is not possible

to make a definite opinion that they are not guilty of the alleged

crime but for the limited purpose for the justifiable disposal of the

bail application, a tentative opinion can be formed that the

material brought on record is not sufficient enough to attract the

embargo contained under Section 37 of the NDPS Act. Though

specific arguments have not been conveyed but looking to the

fact that the accused is in custody, this court feels that the

accused are not supposed to establish a case in support of their

innocence rather their detention is required to be justified at the

instance of the prosecution, therefore, this court went deep into

the facts of the case and the manner in which the entire

proceedings have been undertaken. If other surrounding factors

align in consonance with the statutory stipulations, the personal

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liberty of an individual can not encroached upon by keeping him

behind the bars for an indefinite period of time pending trial.

Thus, in the peculiar circumstances of this case, I am of this view

that the embargo contained under Section 37 of the NDPS Act

would not come into the way of granting bail.

15. Considering the overall facts and circumstances of the case

and keeping in view that a strong arguable case available with the

petitioner and if the arguments raised herein above, would be

considered in his favour by the trial Court then the entire

recovery may vitiate, however, it is not the final opinion of this

Court, as the same would be adjudged by the trial Court after

considering the entire evidence brought on record and the

observations made hereinabove are for justifiable disposal of the

bail application thus, it is deemed suitable to enlarge the

petitioner on bail.

16. Accordingly, the instant third bail application under Section

483 BNSS is allowed and it is ordered that the accused-petitioner

shall be enlarged on bail provided he furnishes a personal bond in

the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to

the satisfaction of the learned trial Judge for his appearance

before the court concerned on all the dates of hearing as and

when called upon to do so.

(FARJAND ALI),J
30-Mamta/-

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