Rajasthan High Court – Jaipur
Vijay S/O Shri Ramkishan vs State Of Rajasthan (2025:Rj-Jp:25090) on 8 July, 2025
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2025:RJ-JP:25090]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Fifth Bail Application No. 8546/2025
Vijay S/o Shri Ramkishan, Aged About 44 Years, R/o Sardarpura
Tan Loyal, Police Station Khetri Nagar District Jhunjhunu (Raj.)
(At Present Confined In District Jail, Jhunjhunu).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Rajveer Singh
For Respondent(s) : Mr. Tapesh Agarwal, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
Order
08/07/2025
1. This fifth bail application under Section 483 of BNSS has
been filed on behalf of the petitioner who is in custody since
28.03.2022 in connection with FIR No.152/2022 registered at
Police Station Khetri, District Jhunjhunu for the offence punishable
under Section 8/18 of the NDPS Act. After completion of
investigation, police filed charge-sheet in this matter for the
offences punishable under Sections 8/18, 8/25 & 8/29 of NDPS
Act.
2. The previous bail applications preferred on behalf of the
accused petitioner were dismissed vide orders dated 12.07.2023,
28.02.2024, 07.10.2024 & 09.05.2025. Now, this fifth bail
application has been preferred on behalf of petitioner.
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3. Learned counsel for the petitioner submits that the petitioner
has falsely been implicated in this case. He submits that as per
the prosecution case, on 27.03.2022, complainant Madanlal SI
received a secret input from Sh. Shivdas, Superintendent of Police
that vehicle bearing No. RJ-18-UB-5350 will supply/carry opium
and poppy husk. Acting upon the secret information, aforesaid
vehicle was stopped by the police team and search was conducted
of the alleged vehicle. During search, two sacks of contraband i.e.,
opium, weighing 6.30 kg and 5.010 kg respectively, were allegedly
recovered from vehicle bearing No. RJ-18-UB-5350 which was
being driven by accused Vijay and Ramlal was sitting on the
conductor seat. He contends that a total false recovery of
contraband has been planted upon him. He contends that the
alleged recovery was affected from the petitioner at around
12:50AM in the night. This shows that the recovery proceedings
were done in between sunset and sunrise and as per Section 42 of
the NDPS Act, it is required that whenever any search is made
between sunset and sunrise, the authorized officer is required to
record his reasons/grounds for such belief in writing but in the
present case, such reasons were not recorded and no separate
memo was prepared.
4. He also contends that the work of drawing sample was not
done in accordance with the provisions of sub-section 2 of Section
52A of the NDPS Act. He argues that 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 him to
be correct. However, there is total non-compliance of this
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provision of law. In support of this contention, learned counsel
places reliance upon the judgments passed in the cases of (1)
Union of India vs Mohanlal & Anr : (2016) 3 SCC 3749 and
(2) Mangilal vs State of Madhya Pradesh: 2023 SCC online
SC 862.
5. It is also argued that the search and seizure proceedings
were conducted by SI Madan Lal who was not competent to
conduct the search proceedings and thus, the entire proceedings
are vitiated. It is also pointed out by the learned counsel that
inventory was prepared after one month of the alleged recovery.
He submits that petitioner is behind the bars since 28.03.2022
and thus, more than, three years and three months have passed
since his date of arrest. Learned counsel contends that Hon’ble
Apex Court as well as this Court, has granted benefit of bail to the
accused persons who are behind the bars for two years or more in
identical fact situation. The bail application of co-accused Ajay
Kumar has been accepted by co-ordinate Bench of this Court vide
order dated 20.12.2023 and bail application of co-accused Ramlal
has been accepted by this Court vide order dated 22.04.2024. It is
contended that trial will take considerable time in its conclusion.
He thus, prays that the instant bail application may be accepted
and the petitioner may be released on bail.
6. Per contra, learned Public Prosecutor vehemently opposes
the bail application. He submits that it is a case of recovery of
commercial quantity of contraband thus, considering the rigour of
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Section 37 of the NDPS Act, benefit of bail should not be granted
to the petitioner. He further submits that one other case under the
NDPS Act has also been registered against the petitioner.
7. At this stage, learned counsel for the petitioner relies upon
the order passed by Hon’ble Apex Court on 10.01.2025 in SLP
(Crl.) No.16671/2024 titled as Shambulal Gurjar @ Rohit
Versus State of Rajasthan wherein after considering the fact
that accused has already suffered incarceration of about 1 year
and 8 months, facility of bail was granted to the accused despite
the fact that three other cases under the NDPS Act were
registered against him.
8. I have considered the arguments advanced by learned
counsel for the petitioner as well as learned Public Prosecutor and
perused the material available on record.
9. Section 37 of the NDPS Act does not create an absolute
embargo for grant of bail. Further, while considering an application
for grant of bail, it is not required for the Court to record positive
finding that the accused is not guilty. The only requirement of law
is that the Court would look at the material in a broad manner and
reasonably see whether the accused’s guilt may be proved. The
satisfaction which courts are expected to record i.e, the accused
may not be guilty is only prima facie, based on a reasonable
reading, which does not call for meticulous examination of the
material collected during investigation.
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10. Having regard to the overall facts and circumstances of the
case and considering the submissions advanced by learned
counsel for the parties, especially the fact that co-accused Ajay
Kumar & Ramlal have been enlarged on bail and prima facie, there
is non-compliance of Section 52A of the NDPS Act, the recovery
was effected during night time but no memo to this effect was
prepared by the seizure officer as also looking to the period of
custody as well as the observation made by Hon’ble Apex Court in
case of Shambulal Gurjar @ Rohit (supra), but without
commenting anything on the merits/demerits of the case, I deem
it just and proper to accept the fifth bail application.
11. This fifth bail application is accordingly, allowed and it is
directed that accused-petitioner Vijay S/o Shri Ramkishan, who
has been arrested in connection with FIR No. 152/2022 registered
at Police Station Khetri, District Jhunjhunu shall be released on
bail provided he furnishes a personal bond in the sum of
Rs.1,00,000/- (Rupees One Lac Only) together with two sureties
in the sum of Rs.50,000/- (Rupees 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.
12. It is made clear that the accused-petitioner shall not involve
in any other offence(s) during currency of the bail and he shall
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mark his presence in second week of every month in the
concerned police station.
13. If any breach of these conditions is reported or come to the
notice of the Court, the same shall alone be a reason for the trial
court to cancel the bail granted to him by this Court.
14. Concerned SHO is directed to maintain a register recording
the attendance of the petitioner. 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.
15. The observation made hereinabove is only for decision of the
instant bail application and would not have any impact on the trial
of the case in any manner.
(ANIL KUMAR UPMAN),J
LALIT MOHAN /40
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