Jagdish Banjara vs State Of Rajasthan

Kuldeep Mathur, J

The present second bail application has been filed under Section 439 Cr.P.C. who has been arrested in connection with F.I.R. No.253/2021, registered at Police Station Merta City, District Nagaur, for the offences punishable under Sections 8/15 and 8/29 of the NDPS Act and Sections 467, 468, 471, 120-B IPC.

Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

Learned counsel for the petitioners submitted that the co-accused persons have already been enlarged on bail by this Court vide order dated 14.12.2023.

The order dated 14.12.2023 passed by this Court is reproduced herein below for ready reference:

The present second bail applications have been filed under Section 439 Cr.P.C. who have been arrested in connection with F.I.R. No.253/2021, registered at Police Station Merta City, District Nagaur, for the offences punishable under Sections 8/15 and 8/29 of the NDPS Act and Sections 467, 468, 471, 120-B IPC.

The first bail applications filed on behalf of the petitioners were dismissed by this Court vide order dated 15.09.2023 and 30.01.2023.

Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record.

Learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the present case. Drawing attention of the Court towards F.I.R., challan papers and the statement of Investigating Officer recorded before competent criminal court on 11.10.2023 as P.W.-2, learned counsel submitted that the Seizure Officer was not holding the post of SHO Police Station Merta City, District Nagaur, at the time of undertaking proceedings for search and seizure on having received specific information regarding transportation of contraband in a white colour pickup vehicle having registration No.MP-12-GA-1093. The Seizure Officer, who was a Sub-Inspector, was holding the post of In-Charge, Police Chowki Jas Nagar, Police Station, Merta City at the time of the recovery of the contraband. Learned counsel urged that on receiving specific information, the Seizure Officer was required to inform the SHO Police Station, Merta City and thereupon, the search and seizure proceedings ought to have been conducted in the presence of the SHO only as is mandated under Section 42 of the NDPS Act.

Learned counsel for the petitioners contended that non- adherence of the mandatory provisions of Section 42 of the NDPS Act vitiates the entire recovery proceedings in the present case. Learned counsel submitted that since, in the present case, it is not in dispute that there was previous information with the Seizing Officer regarding transportation of contraband in aforementioned offending vehicle, therefore, the provisions envisaged under Section 42 of the NDPS Act would squarely apply.

Learned counsel vehemently submitted that despite having previous information, search in this case was made by a Sub- Inspector, who on searching the vehicle, found presence of contraband in the car and prepared the seizure memo.

Drawing attention of the Court towards notification No.F.1(3)/FD/Ex./85-I dated 16.10.1986 published in Rajasthan Gazette Part IV-VII (II) dated 16.10.1986, learned counsel submitted that the Sub-Inspector is neither a competent officer under Section 41 and 42 of the NDPS Act nor under the Standing Order of 1986 issued by the Government.

Lastly, learned counsel submitted that the accused-petitioners are in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioners.

Per contra, learned Public Prosecutor has opposed the bail application.

In the considered opinion of this Court, the non-compliance of mandatory provisions of NDPS Act, which have to be complied with stricto sensu, is a matter of serious concern and flouting of the procedure stipulated in Sections 41 and 42 of the NDPS Act forms a point of consideration for this Court while entertaining a bail plea akin to the instant one.

Having regard to the totality of facts and circumstances as available on record and upon a consideration of the arguments advanced, this Court is inclined to enlarge the petitioners on bail as in the prima facie opinion of this Court, the mandatory procedure stipulated in Sections 41 and 42 of the NDPS Act has not been complied with.

Accordingly, the present second bail applications filed under Section 439 Cr.P.C. are allowed and it is directed that petitioners (1) Damodar S/o Bhanwar Lal and (2) Hanuman @ Hanuman Ram S/o Shri Bheraram shall be released on bail in connection with F.I.R. No.253/2021, registered at Police Station Merta City, District Nagaur provided each of them executes a personal bond in a sum of Rs.1,00,000/- with two sound and solvent sureties of Rs.50,000/- each to the satisfaction of learned trial court for their appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.

It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.

A copy of this order be placed in each file.

Learned counsel submitted that the petitioner has been implicated in the present case on the basis of disclosure statement made by the accused persons under Section 27 of the Indian Evidence Act. Learned counsel submitted that the co-accused persons from whose conscious possession contraband greater than commercial was recovered have already been enlarged on bail. Learned counsel submitted that the accused- petitioner is in judicial custody since 22.11.2022 the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioners.

Per contra, learned Public Prosecutor has opposed the bail application and submitted that looking to the seriousness of the allegations against the petitioner, he does not deserve to be enlarged on bail.

Having considered the rival submissions, facts and circumstances of the case that he was not in a position to refute the fact that the co-accused persons from whose conscious possession contraband commercial quantity was recovered have already enlarged on bail by this Court vide order dated 14.12.2023, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioners deserve to be accepted.

Accordingly, the present second bail application filed under Section 439 Cr.P.C. are allowed and it is directed that petitioner Jagdish Banjara S/o Goma Banjara, shall be released on bail in connection with F.I.R. No.253/2021, registered at Police Station Merta City, District Nagaur provided he execute a personal bond in a sum of Rs.1,00,000/- with two sound and solvent sureties of Rs.50,000/- 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.

It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.