The court reinforced that possession of narcotics in commercial quantities creates a presumption of guilt, placing the onus on the accused to prove otherwise.

JUDGMENT :

GANESH RAM MEENA, J.

1. Both the bail applications have been filed by the accused petitioners under section 439 CrPC in connection with FIR No. 0902/2023 registered at Police Station Jhotwara, District Jaipur (West) for the offences punishable under Section 8/21, 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act of 1985’) and 3/25 of the Arms Act.

2. As per the facts of the case, the gist of the FIR is that on 05.12.2023 when complainant Prabhu Singh, Sub Inspector along-with police personnel was on patrolling they saw that two persons were having plastic bags in their hands. Both the accused persons after seeing the police, tried to run away. They were stopped and their names were asked. One of them told his name Mahendra Singh Jadaun and another told his name as Roshan Khan and they told that in the plastic bags there is Codeine substances (Spasmaxx Capsules, Alprazolm Tables IP, Maxcoff-T, Ultra King, Recoff Cough Syrup). In the right side pocket of pent of Mahendra Singh Jadaun, there was one Pistol. Drug Controller was informed on phone to come on the spot. For summoning independent witnesses Nizzamuddin, Constable was sent. Mr. Lekhraj Agarwal, Drug Controller came on the spot. Head Constable on return told that nobody has agreed to become witness. On this, consent of Nizzamuddin, Head Constable and Raj Kumar Constable was taken.

3. Counsel appearing for the accused petitioners submitted that the accused petitioners have falsely been implicated in this case as they have nothing to do with the alleged incident. Counsel submitted that the provisions of sections 42 and 52 of the Act of 1985 have not been followed properly and as a result whereof, the entire alleged recovery is vitiated. Counsel submitted that the seizure of the alleged contraband was made on 05.12.2033, sample of alleged contraband was taken on 19.01.2024 and same was sent to the FSL on 29.01.2024 and no explanation is there on record for such an inordinate delay.

Mr. Zaid Khan counsel appearing for accused petitioner Roshan Khan submitted that the accused petitioner has not committed any such offence which comes any any provisions of the Act of 1985. Counsel submitted that the alleged recovery of weapon has been made from the possession of co-accused Mahendra Singh and not from the possession of the accused petitioner. Counsel submitted that no recovery of drug substance has been effected from the possession of the accused petitioner. Counsel submitted that the allegation against the petitioner is that he was having medicines without having licence thereof.

Mr. Jitendra Singh Shekhawat counsel appearing for the accused petitioner Mahendra Singh Jadaun submitted that the accuse petitioner has been implicated in this case by the police just to harass and humiliate him while showing false recovery of alleged Tablers and capsules otherwise the petitioner has no concern with the alleged recovered goods and no any contraband has been recovered from him. Counsel further submitted that the charge-sheet in the case has since been filed.

Both the Counsels submitted that the accused petitioners are in judicial custody since 05.12.2023 as they have remained in judicial custody for sufficient period. Counsel submitted that the trial of the case is likely to take considerable time, hence the accused petitioner may be released on bail.

4. Learned Public Prosecutor vehemently opposed the bail application and submitted that there is recovery of contraband from the possession of the petitioner which is more than the commercial quantity. He further submitted that the provision of section 37 of the Act of 1985 clearly speaks that no person accused of an offence punishable for the offences involving commercial quantity may not be released on bail because at this stage it cannot be said that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

5. Consi