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Rajasthan High Court – Jodhpur
Raja Ram vs State Of Rajasthan (2025:Rj-Jd:29332) on 7 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:29332]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 392/2025
Raja Ram S/o Rampratap, Aged About 38 Years, R/o W.no. 04
Pillibanga Tehsil Pilibanga Dist Hanumangarh. (At Present Lodged
In Dist Jail Hanumangarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Anand Purohit, Sr. Advocate
Mr. Kailsah Bishnoi
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 an 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 380/2023 2. Concerned Police Station Pilibanga 3. District Hanumangarh 4. Offences alleged in the FIR Section 8/18 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 01.10.2024 order
2. The concise facts of the case as alleged in the FIR are that
on 05.06.2023 at 4:20 PM, near an empty plot in Wadhwa Colony,
close to Ram Sharam Ashram in Street at Pilibanga, Police
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Inspector Vijay Kumar from Police Station Pilibanga conducted a
search of the applicant/accused Rajaram. During the search, 2.6
kg of opium was recovered from one bag and 1.2 kg from another,
totaling 3.8 kg of opium, including the bags. Upon returning to the
police station, all necessary spot proceedings were completed, and
FIR No. 380/2023 was registered under Section 8/18 of the NDPS
Act. The investigation was handed over to Police Inspector Arun
Chaudhary of Police Station Rawatsar. During the course of the
investigation, Rajaram was arrested, and a charge sheet was
subsequently filed against him under the serious provisions of
Section 8/18 of the NDPS Act. His first and second bail
applications were dismissed by this Court vide orders dated
05.03.2024 & 03.12.2024 passed in SBCRLMB Nos.15967/2023 &
13304/2024. Hence the instant application.
3. 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.
4. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
5. Have considered the submissions made by both the parties
and have perused the material available on record.
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6. Perusal of the record revealing that the case in hand revolves
around an alleged chance recovery, wherein the prosecution
claims that the petitioner was apprehended on a street, in the
vicinity of an ashram, while behaving in a suspicious manner. It is
alleged that the accused was carrying a bag in his hand, which
upon being opened by the police at the spot, led to the recovery of
bundles of ₹500 currency notes and approximately 3.8 kilograms
of opium in two packets.
6.1. In connection with this recovery, the prosecution prepared
two separate seizure memos one in respect of the currency notes
and and another in relation to the narcotic substance (opium). It
is to be noted that no illegality can be attributed to the act of
preparing separate seizure memos for distinct articles. However, a
deeper examination reveals that the timing and place of
preparation of both these memos were different, despite arising
from the same incident and location, thereby giving rise to a
serious and credible doubt about the genuineness and continuity
of the seizure process.
6.2. While the seizure is presented by the prosecution as a spot
recovery, such variation in the preparation of memos strongly
suggests otherwise. Under the scheme of the NDPS Act, especially
in view of the mandate of the Hon’ble Supreme Court in State of
Punjab v. Balbir Singh [(1994) 3 SCC 299], spot recovery, if
feasible, must be strictly adhered to in order to preserve the
authenticity of the chain of custody and prevent subsequent
fabrication.
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6.3. Furthermore, such discrepancies in the documentation,
especially when arising in a case of chance recovery, assume even
greater importance. Even in the event of a sudden or unplanned
interception, the police officials are expected to act with statutory
diligence by immediately informing their superior officers, and by
ensuring that all recovery and seizure-related procedures are
meticulously followed in accordance with the law. The prosecution
has not shown any compliance with such safeguards in the
present case.
6.4. Another serious legal question that arises is the applicability
of Section 50 of the NDPS Act, which casts a mandatory duty on
the investigating officer to inform the accused of his legal right to
be searched before a Gazetted Officer or Magistrate in case the
search is of a person. The facts here involve a bag being carried
by the accused, allegedly containing opium. The law on whether
Section 50 applies to search of baggage carried on person has
been subject to differing interpretations. In Arif Khan v. State of
Uttarakhand [(2018) 18 SCC 380], the Hon’ble Supreme Court
held that even where narcotics are recovered from a bag being
carried, Section 50 applies, if the bag is inextricably connected
with the person.
6.5. In the present case, the question of Section 50 compliance
remains unresolved even after more than two years of
incarceration, and there is no cogent material on record to
demonstrate that the accused was informed of his rights under the
said provision. The legal presumption under the NDPS Act
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operates only after the prosecution has complied with the
mandatory procedural safeguards, and any breach thereof
seriously affects the admissibility and evidentiary value of the
seizure.
6.6. Further casting doubt on the fairness of the investigation is
the failure of the police officers to justify the change of place in
the preparation of seizure memos for currency notes and opium,
despite both being allegedly recovered from a single bag at the
same time. This inconsistency is not explained in the seizure
memos, nor clarified by any independent witness or official record,
thereby giving rise to reasonable apprehension of manipulation or
afterthought.
6.7. It is also undisputed that the petitioner has remained in
custody since more than two years, and during this time, the trial
has not proceeded substantially. No convincing explanation for the
delay has been offered by the prosecution, nor is there any
evidence of misuse of liberty or obstruction. In such
circumstances, it is deemed suitable to grant the benefit of bail to
the petitioner
7. It is nigh well settled law that at a pre-conviction stage; bail
is a rule and denial from the same should be an exception. The
purpose behind keeping an accused behind the bars during trial
would be to secure his presence on the day of conviction so that
he may receive the sentence as would be awarded to him.
Otherwise, it is the rule of Crimnal Jurisprudence that he shall be
presumed innocent until the guilt is proved.
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8. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title 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
18-Mamta/-
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