Jitendra vs State Of Rajasthan

Rajendra Prakash Soni, J

Present petition under Section 439 of the Code of Criminal Procedure is for grant of regular bail in case bearing FIR No. 25/2020 under Sections 8/18 & 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act") registered at Police Station Karda, District Jalore.

Arguments advanced by learned counsel for the parties were heard at length and record was also perused.

The facts in brief are as follows:-

That Head Constable Karnaram informed Station House Officer Lala Ram that a suspicious car number MP-09-CU-7141 has been intercepted during the police blockade which may contain contraband drugs. On receipt of information, the S.H.O. formed a team and proceeded towards the location of the police blockade. The car was brought to the police station. On enquiry, the driver revealed his name to be Jitendra Singh and the other occupants identified himself as Govind Singh, Harish Parmar and Virendra Singh. A search of the vehicle resulted in the recovery of 4.080 kilograms of Opium-Milk, a prohibited substance under the Act. The petitioner is in custody since 28.02.2020 i.e. for the last 40 months.

Learned counsel for the petitioner praying for bail to the petitioner urges that there is serious contradictory evidence with regard to the sealing of the sample. As per seizure memo, the sample was first put in a plastic box and subsequently into a cloth cover and then sealed. The same fact has been narrated by Lala Ram (PW-1), the Seizure Officer. According to his deposition the sample was first put in a plastic box and subsequently into a cloth cover and then sealed. According to the FSL report, the samples that were received by the laboratory were first packed in a pouch, then in a plastic box, and then in a cloth cover.

It is further argued that obviously, the sample received by the FSL does not match the description mentioned in the seizure memo and given by the abovementioned seizure officer in his court statements. It is further argued that there was a distinct possibility that the samples may have been tempered with; that this serious infirmity raises a question as to whether the samples of contraband send to the FSL were the same which were taken at the time of search and seizure. This infirmity creates a serious doubt and smashes the substratum of prosecution story. The manner under which the sampling was made, result thereof would be that ultimately the petitioner could not be held guilty on the basis of alleged circumstances and material available on record. Hence, the embargo contained under Section 37 of the NDPS Act would not be attracted in the present case. He thus, urges that the petitioner may be released on bail.

The learned Public Prosecutor would submit that the differences in packing could be due to typographical error or it could have been due to oversight. He would contend that these are factual issues which cannot be addressed at this stage and ought to be determined only by trial. He would also submit that the accused do not deserve any sympathy as the petitioner is a drug peddler. Contraband of commercial quantity has been seized from the accused; that release of accused will hamper the trial; that the drugs recovered from the petitioner fall within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. The respondent Counsel would also point out where the petitioner has been charged for the offences punishable by severe punishment; that the very harshness of the penalty is demonstrative of the severity of the crime. He thus, craves rejection of the petitioner's bail application.

On perusal of the record, the bail rejection order goes to show that he is not involved in any other case under the N.D.P.S. Act. After completion of investigation, challan against the petitioner has already been submitted and the statement of the Seizure Officer has also been recorded during the trial.

During the trial, statements of four prosecution witnesses have already been recorded.

In this background and having regard to the overall facts and circumstances of the case as available on record, specifically the significant difference in packing of the samples noticed when the same were sent to the FSL, this Court feels that the accused has available to him, the substantial grounds so as to question the prosecution case and looking to the fact that rigor of Section 37 of the NDPS Act is duly satisfied so as to entitle the petitioner’s release on bail, therefore, without commenting any further on the merits of the present case as a whole, taking into principles and factors relevant to be considered at the time of deciding bail application with reference to material placed before me and the fact that the trial is likely to take its own considerable time, no useful purpose would be served by keeping him in detention for an indefinite period and submissions made on behalf of parties, this Court is inclined to extend indulgence of bail to the accused petitioner.

Consequently, the bail application is allowed. It is ordered that the accused-petitioner Jitendra S/o Prabhu Singh in F.I.R. No. 25/2020, Police Station Karda, District Jalore shall be released on bail; provided he furnishes a personal bond and two surety bonds of the amount to the satisfaction of the 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 and if not required by Jail Authorities in any other case. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future.