Durbesh vs State of Rajasthan, Through Pp

Vijay Bishnoi, J

Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

The petitioner has been arrested in FIR No. 23/2019 of Police Station Rathanjana, District Pratapgarh for the offences punishable under Section

8/15, 25 and 29 of NDPS Act. They have preferred this bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that as per the prosecution story, the police seized 1 kg. of opium and 83.850 kgs. of poppy straw

stuffed in two bags from the possession of the petitioner and one Ishaq. It is argued that the Seizure Officer namely Mohan Singh did not collect

separate samples from the two bags containing narcotic contraband poppy straw weighing 41.700 kgs. and 42.150 kgs. respectively and collected two

samples after mixing the whole poppy straw.

Thus, it is clear that the Seizure Officer did not collect separate samples from each bag. It is also submitted that the I.O. in his statements has not

stated that the test by the U.N. Kit was carried out on each bag before taking small quantity of poppy husk for samples.

Learned counsel for the petitioner while placing reliance on the decision of this Court rendered in the case of Netram v. State of Rajasthan,

reported in 2014 (1) Cr.L.R. (Raj.) 163 has argued that this Court has held that if the samples from each bag containing poppy husk/poppy straw have

not been collected and test by U.N. Kit has not been conducted on each bag and if the Seizure Officer has taken out some quantity of narcotic drug

from each bag and after mixing the same has taken out some portion for sample, then, the same is not in conformity with the Standing Instruction No.

1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No. 1.7 and, as such, it cannot be said that the narcotic contraband

recovered in the matter is of commercial quantity or above. It is, thus, prayed that the petitioner may be enlarged on bail.

Learned Public Prosecutor has opposed the bail application.

Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and

proper to grant bail to the accused petitioners under Section 439 Cr.P.C.

Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Durbesh S/o Sh. Ishaq shall be released

on bail in connection with FIR No. 23/2019 of Police Station Rathanjana, Pratapgarh provided he execute a personal bond in a sum of Rs. 50,000/-

with two sound and solvent sureties of Rs. 25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and

every date of hearing and whenever called upon to do so till the completion of the trial.