Rajasthan High Court – Jodhpur
Jagdish vs State Of Rajasthan (2025:Rj-Jd:4184) on 22 January, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:4184]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8278/2024
Jagdish S/o Sri Chatarbhuj Gadari, Aged About 32 Years, R/o
Sidvadi, Shambhupura Police Station, Dist. Chittorgarh. (Lodged
In Central Jail, Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Vijay Raj Vishnoi
Mr. J.K. Haniya
For Respondent(s) : Mr. Urja Ram Kalbi, P.P.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
22/01/2025
1. This application for bail under Section 483 BNSS (Section
439 Cr.P.C.) has been filed by the petitioner who has been
arrested in connection with F.I.R. No.256/2022 registered at Police
Station Nimbahera Sadar, District Chittorgarh, for the offences
punishable under Sections 8/15, 8/25 of the NDPS Act.
2. Heard learned counsel for the petitioner as also learned
Public Prosecutor and perused the material available on record.
3. Learned counsel for the petitioner submitted that 1767 Kgs.
of contraband (Poppy Husk/Straw) was recovered from the
conscious possession of the co-accused Khem Ram. The co-
accused Khema Ram divulged an information that the recovered
contraband was supplied to him by the present petitioner. Learned
counsel for the petitioner further submitted that admittedly
contraband in the present case was not recovered from the
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conscious possession of the present petitioner and the petitioner
has been implicated in the present case solely on the basis of
disclosure statements of the co-accused Khema Ram. Learned
counsel also contended that the above named co-accused Khema
Ram has already been enlarged on bail by the co-ordinate Bench
of this Court in S.B. Criminal Misc. Bail Application No.4997/2024
vide order dated 02.09.2024. The order dated 02.09.2024 passed
by this Court is reproduced herein below for ready reference:
“1. The prayer made in this bail petition filed under Section
439 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
256/2022 of Police Station Sadar Nimbahera District
Chittorgarh in respect of offence(s) punishable under
Section(s) 8/15 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
2. Earlier, applicant made an endeavor for seeking bail by
way of filing first bail application which was disposed of
without considering the merits of the case since it was not
pressed with liberty to file fresh after recording of statement
of seizure officer. Now post recording of statement of
seizure officer this second bail application has been moved.
3. This Court has carefully perused the record as well as
considered the submissions made by learned counsels for
the parties.
4. Learned Public Prosecutor for the State has strongly
objected the different submissions made by learned counsel
for the applicant and submitted that 1767 Kgs. of
contraband poppy straw recovered from the applicant falls
within the ambit of commercial quantity and the bar as
contained in Section 37 of the NDPS Act is attracted.
Seizure and sampling was in consonance with the procedure
and the shortcomings pointed out by the learned counsel for
the petitioner cannot be considered at this stage and are to
be decided after trial only. The bail petitioner indulges in the
illegal trade of narcotics. Therefore, petitioner does not
deserve to be released on bail.
5. I have given my anxious consideration to the rival
submissions with reference to material placed before me.
6. On perusal of the record and upon consideration of the
submissions, it would be clear that during the trial of the
present case, the statement of Seizure Officer Tulsi Ram
(PW-4) has already been recorded by the trial Court besides(Downloaded on 22/01/2025 at 09:55:31 PM)
[2025:RJ-JD:4184] (3 of 6) [CRLMB-8278/2024]3 other witnesses. Said statement would reveal that there
was, prima facie, non-compliance of mandatory procedure
of sampling, which prima facie effects the sanctity and
legality of the seizure. Samples for chemical analysis from
the seized contraband were drawn on the spot of recovery
by Tulsi Ram (PW-4) himself, in absence of a Magistrate
which was clearly in derogation of provisions of Section 52A
of the Act and such irregularities, prima facie, malign the
seizure proceedings.
7. It is also observed that Section 52A of the Act
contemplates that where any narcotic drug has been seized
and forwarded to the Officer-in-charge of the nearest Police
Station, such officer shall prepare an inventory of such
narcotic drugs containing all the necessary details and make
an application to any Magistrate for the purpose of allowing
him to draw representative samples of such drug in the
presence of such Magistrate and certifying the correctness
of samples so drawn.
8. While dealing the scope of Section 52A of the NDPS Act,
Hon’ble the Supreme Court in the case of Mangi Lal Vs.
State of Madhya Pradesh, reported in 2023(3) Crimes
(SC) 298 held that Sub-section (2) of Section 52A of the
NDPS Act mandates a competent officer to prepare an
inventory of narcotic drug recovered. This has to be
followed through an appropriate application to the
Magistrate concerned. The purpose is taking of samples in
presence of Magistrate after due certification. The object
behind this provision is to have an element of supervision
by the Magistrate in taking samples. Therefore, when there
is noncompliance of Section 52A of the NDPS Act and where
a certification of the Magistrate is lacking, any sampling
would not constitute primary evidence. The obvious reason
behind this provision is to inject fair play in the process of
investigation. Section 52A of the Act is a mandatory rule of
evidence which requires the physical presence of a
Magistrate followed by an order facilitating his approval for
certifying the samples drawn.
9. Hon’ble the Apex Court in the case of Union of India
Vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379, it
was held that no sooner seizure is effected and the
contraband drug is forwarded to the Officer-in-charge of the
Police Station or the other Officer empowered, the Officer
concerned is duty bound to approach the Magistrate for the
purpose mentioned above including grant of permission to
draw representative samples in his presence. Samples
drawn will then be enlisted and the correctness of list of
samples so drawn is to be certified by the Magistrate. There
is no provision in the Act that mandates taking of samples
by the Police Officer himself at the time of seizure. The
question of taking samples at the time of seizure which(Downloaded on 22/01/2025 at 09:55:31 PM)
[2025:RJ-JD:4184] (4 of 6) [CRLMB-8278/2024]takes place in the absence of Magistrate does not, in the
above scheme of things, arises. The process of drawing of
samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise has to
be certified by the Magistrate to be correct.
10. In view of the above pronouncements of Hon’ble the
Apex Court, this Court has perused the record and
statement of Tulsi Ram (PW-4), which proves that the
samples were taken immediately after the seizure without
there being presence of any Magistrate. The samples drawn
in proceedings under Section 52A of the Act, have not been
sent to FSL. In view of this Court, prima facie, taking
samples from the packets at the time of seizure is not in
conformity with the law laid down in the above-mentioned
pronouncements, which prima facie brings the case of the
prosecution under cloud which claims that substance
recovered was a contraband.
11. Having considered the material available on record; the
arguments advanced by counsel for the applicant
particularly the facts narrated above and the fact that
applicant is in custody since 03.06.2022; that trial is likely
to take its own considerable time and taking note of all
these aspects I do not intent to go into the merits of the
matter but of the considered view that the rigor of Section
37 of the N.D.P.S. act is duly satisfied, forasmuch this court
feels that the applicant has available to him substantial
grounds so as to question the prosecution case and no
useful purpose would be served by keeping the applicant in
detention for an indefinite period therefore, I am inclined to
grant indulgence of bail to the petitioner at this stage.
12. Consequently, the present bail application is allowed and
it is directed that the accused-petitioner Khema Ram S/o
Ruparam Jat, arrested in connection with the F.I.R.
No.256/2022 of Police Station Sadar Nimbahera District
Chittorgarh 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 subject 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 copy of front page of Bank
pass book, for smooth recovery of penalty amount, if there
arise a need for recovery of penalty under Section 446
Cr.P.C in future.”
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4. Lastly, learned counsel for the petitioner submitted that the
petitioner is in judicial custody and the trial of the case will take
sufficiently long time, therefore, the benefit of bail may be granted
to the accused-petitioner.
5. Per contra, learned Public Prosecutor has vehemently
opposed the bail application. Learned Public Prosecutor submitted
that looking to the seriousness of allegation against the petitioner,
he does not deserve to be enlarged on bail, however, learned
Public Prosecutor was not in a position to refute the fact that the
co-accused Khema Ram, from whose conscious possession
contraband greater than commercial quantity was recovered has
already been enlarged on bail by the co-ordinate Bench of this
Court vide order dated 02.09.2024.
6. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that the co-
accused Khema Ram from whose conscious possession the
contraband greater than commercial quantity was recovered has
already been enlarged on bail by the co-ordinate Bench of this
Court vide order dated 02.09.2024. The petitioner is in judicial
custody and the trial of the case will take sufficiently long time to
be concluded. Thus, without expressing any opinion on
merits/demerits of the case, this Court is of the opinion that the
bail applications filed by the petitioner deserve to be accepted.
7. Consequently, this bail application under Section 483 BNSS
(Section 439 Cr.P.C.) is allowed. It is ordered that the accused-
petitioner Jagdish S/o Sri Chatarbhuj Gadari arrested in
connection with F.I.R. No.256/2022 registered at Police Station
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Nimbahera Sadar, 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/- (Rupees Fifty Thousand) and two sureties
of Rs.50,000/- (Rupees Twenty Five Thousand) 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.
8. It is however, made clear that findings recorded/observations
made above are for limited purposes of adjudication of bail
application. The trial Court shall not get prejudiced by the same.
(KULDEEP MATHUR), J
161-AnilKC/-
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