Khuman vs State

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.44/2017 of Vijaypur Police Station, Distt. Chittorgarh for the offences punishable under Sections 8/15 of the NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that it is clear from the statement of Bhawani Singh (PW-1), the SHO of Police Station that 32 bags containing poppy husk weighing 636 kgs were recovered and the Seizure Officer first took 100 gms of poppy husk from each bag and mixed the same, total weight of which was 3 kgs 200 gms. The Seizure Officer thereafter took two samples of 500 gms each from that mixture. Thus, it is clear that the Seizure Officer did not collect separate samples from each bag. It is also submitted that the I.O. 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 Vs. 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 kindly be enlarged on bail.

Having considered the overall facts and circumstances of the case and substantial grounds taken in this bail application and taking into consideration the judgment passed by this Court in Netram's case (supra), this Court is of the opinion that there are rare chances of petitioner's conviction for the offences of possessing/transporting/supplying of narcotic contraband above commercial quantity and trial of the case is likely to take time, this Court is inclined to grant bail to the petitioner.

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 petitioner under Section 439 Cr.P.C.

Accordingly, this second bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner - Khuman S/o Khayali Lal Regar shall be released on bail in connection with FIR No.44/2017 of Vijaypur Police Station, Distt. Chittorgarh provided he executes a personal bond in the 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.