Bhupendra Singh vs State

Accused-petitioner apprehended on 29.05.2017, pursuant to investigation into FIR No.123/2017, registered at Police Station Gogunda, District Udaipur, for alleged offence under Section 8 read with Section 15 & 27 of the NDPS Act, has laid this third bail application under Section 439 Cr.P.C.

At present, petitioner is facing trial for the aforesaid offences in Special Sessions Case No.327/2017, pending before Special Judge, NDPS Cases, Udaipur.

The first bail application, laid on behalf of petitioner jointly with other co-accused Bhupendra Singh S/o Jaswant Singh, was dismissed as not pressed on 08.11.2017. Yet again, petitioner made endeavour for seeking bail and his second bail application bearing No.4950/2018 was rejected on 16.08.2018 while granting him liberty to apply for bail afresh after recording statements of Seizure Officer.

Espousing cause of the petitioner for grant of bail, it is submitted by learned counsel that after rejection of second bail application, during trial, statements of Seizure Officer, Bhanwarlal (P.W.10) have been recorded. Highlighting the statements of P.W.10, it is urged by learned counsel that his statements clearly unfurl substantial change in the circumstances after rejection of second bail application. Elaborating his submissions in this behalf, learned counsel would urge that the Seizure Officer (P.W.10) during his deposition has clearly and unequivocally admitted that samples of seized contraband were drawn by collecting small quantity of contraband from six plastic bags and then the same was mixed for preparation of two samples of 1 kg. He, therefore, submits that this method of drawal of samples is ex facie laconic, which has substantially reduced chances of conviction for offence under Section 8 read with Section 15(c) of the NDPS Act. While harping on the laconic method of drawal of sample and its probable consequences, learned counsel has placed reliance on a decision of this Court in Netram Vs. State of Rajasthan [2014 (2) WLN 394 (Raj)]. With this argument, learned counsel contends that even at this stage, Court can very well tone down the rigor of Section 37 of the NDPS Act, which is only attracted when the contraband is above commercial quantity. Learned counsel further submits that at the time of search and seizure, the Seizure Officer also subjected the petitioner to personal search but in the notice he also incorporated third option of allowing search by himself, which has prima facie vitiated the entire seizure proceedings having direct ramification on the culpability of the petitioner. In support thereof, learned counsel has placed reliance on a decision of Supreme Court in State of Rajasthan Vs. Parmanand & Anr. [(2014) 5 SCC 345]. Lastly, learned counsel contends that so far, during trial, only ten out of twenty prosecution witnesses have been examined and, therefore, possibility of conclusion of trial in near future is a far-fetched. Learned counsel has also urged that considering a very vital fact that petitioner is in custody since 29.05.2017, he may be given some reprieve in the matter.

Per contra, learned Public Prosecutor, Mr. Vyas, has vehemently opposed the bail plea of the petitioner. It is argued by learned Public Prosecutor that the contraband recovered in the matter was umpteen times higher than the commercial quantity and, therefore embargo under Section 37 in the matter of grant of bail is clearly attracted.

I have bestowed my consideration to the arguments advanced at Bar and perused the materials available on record, including the statement of Seizure Officer (P.W.10), besides ratio decidendi of the judgments referred to supra.

Having regard to the facts and circumstances of the case and relying on the statements of P.W.10, in my opinion, in the instant case, even at this stage, Court can record its satisfaction about Section 37(1)(b)(ii) of the NDPS Act.

In view thereof, acknowledging the substantial change in the circumstances sought to be canvassed by learned counsel for the petitioner, the instant third bail application is allowed and it is ordered that accused-petitioner, Bhupendra Singh S/o Shri Rajendra Singh Shaktawat, arrested in connection with F.I.R. No.123/2017, Police Station Gogunda, District Udaipur, may be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- with two sureties of like amount to the satisfaction of 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.