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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
PUSHPENDRA SINGH BHATI, J.
Rampalsingh S/o Narsinghram Vishnoi – Petitioner
Versus
State of Rajasthan – Respondent
S.B. Criminal Miscellaneous Second Bail Application No. 11060 of 2023
Decided On : 06-10-2023
NDPS Act - Bail Application - Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: NDPS Act, 1985 - Section 8/15, Sections 468 and 471 of the Indian Penal Code, 1860 - The court discussed the provisions of the NDPS Act, particularly the procedural requirements for search and seizure, and the applicability of Section 37 for commercial quantity of contraband. The court also referenced previous judgments to support arguments on procedural lapses and compliance with mandatory provisions of the NDPS Act.
Fact of the Case:
The petitioner was arrested for possession of contraband Doda Post under Section 8/15 NDPS Act. The petitioner filed a bail application citing procedural lapses by the police authority during search and seizure.
Finding of the Court:
The court found that the contraband was recovered from the petitioner and there was no material to support the petitioner's case for bail. The court observed that the recovery was made following due procedure under the NDPS Act and dismissed the bail application.
Issues: The issues involved procedural lapses during search and seizure, compliance with mandatory provisions of the NDPS Act, and the applicability of Section 37 for commercial quantity of contraband.
Ratio Decidendi: The court's decision was based on the lack of evidence to support the petitioner's case for bail, the recovery of contraband following due procedure, and the commercial quantity of contraband under Section 37 of the NDPS Act.
Final Decision: The court dismissed the second bail application, stating that the nature of the offence, the quantity of contraband, and the stage of the case did not warrant granting bail to the petitioner.
JUDGMENT :
PUSHPENDRA SINGH BHATI, J.
1. This criminal misc. second bail application under Section 439 Cr.P.C. has been preferred claiming the following relief:
2. The petitioner has been arrested in connection with FIR No. 583/2021 registered at Police Station Pratapnagar, District Bhilwara for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).
3. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that on 13.10.2020, the concerned police authority received an information that a vehicle (pick up) bearing registration No. RJ-06-GA-8229 was standing at Transport Nagar; upon receipt of the information the petitioner was found sitting in the said vehicle; whereafter, the vehicle was searched, and during course whereof, a contraband Doda Post (poppy straw) weighing 164.94 kgs was recovered. Thereafter, the aforementioned FIR was registered and the present petitioner was arrested. Subsequently, the concerned police authority filed a charge-sheet against the petitioner under Section 8/15 NDPS Act and Sections 468 and 471 of the Indian Penal Code, 1860 (IPC).
4. The first bail application (S.B. Criminal Misc. Bail Application No. 8046/2022) of the petitioner was dismissed, as not pressed, by this Court vide order dated 09.01.2023, with liberty to the petitioner to file fresh bail application after recording of the statement of seizure officer/investigating officer.
5. Learned counsel for the petitioner submitted that in the statement of the Seizure Officer (PW-2) it was clearly stated that the petitioner was arrested from a place located at a distance of 40-50 metres from the spot in question; the vehicle in question was a stolen vehicle. He further submitted that there is no evidence on record, which could show that the vehicle in question was stolen by the present petitioner.
5.1. Learned counsel also submitted that the concerned police authority did not produce any independent witness in support of the search and seizure in question. It was further submitted that the contraband and the sample were tampered, because as per the note, the control samples did not have any impression of the re-seal of the Malkhana.
5.2. Learned counsel also submitted that the sample of the contraband is necessary to be sent within 72 hours of the recovery, as per the standing order, but the concerned police authority clearly violated such order.
5.3. Learned counsel further submitted that the samples of the contraband in question were not collected in the presence of a Magistrate, and also, the Seizure Officer did not write any application to the Magistrate, as per the provisions of the NDPS Act. Thus, as per learned counsel, a procedural lapse was committed during the search and seizure in question by the concerned police authority, which is against the mandatory provisions of the NDPS Act.
5.4. In support of such submissions, learned counsel relied upon the following orders passed by Coordinate Benches of this Hon’ble Court in:
(b) Mohan Lal @ Mahendrapal vs. State of Rajasthan, S.B. Criminal Misc. Bail Application No. 11940/2023, decided on 22.09.2023
(c) Ramchandra vs. State of Rajasthan, S.B. Criminal Misc. Bail Application No. 9454/2023, decided on 27.09.2023
5.5. He further relied upon the following judgments:
(b) Santosh Pandurang Parte vs. Amar Bahadur Maurya and Another, Bail Application No. 4125 of 2021, decided on 19.07.2023
(c) Kashif vs. Narcotics Control Bureau, Bai
The central legal point established in the judgment is the court's reliance on the procedural compliance under the NDPS Act, the lack of evidence for bail, and the applicability of Section 37 for com....
The central legal point established in the judgment is the significance of examining each case on its own merits, especially in bail cases, and considering the nature of the offence, the quantity of ....
The court emphasized that the seriousness of the offence and the quantity of contraband are critical in bail considerations, and procedural violations do not automatically warrant bail.
The court ruled that the conditions for bail under Section 37 of the NDPS Act were not satisfied due to the serious nature of the offences and the substantial quantity of contraband involved.
The recovery of a commercial quantity of contraband from the accused and the direct role attributed to him in the crime influenced the court's decision to dismiss the bail application.
The court held that jurisdictional compliance under the NDPS Act is crucial, but evidence against the petitioner is sufficient to deny bail, with non-compliance issues to be addressed at trial.
The main legal point established in the judgment is that bail under the NDPS Act can only be granted if there are reasonable grounds to believe the accused is not guilty of the offence and not likely....
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