Mehboob Khan vs State Of Rajasthan

Kuldeep Mathur, J

This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.244/2022 registered at Police Station Chittorgarh Sadar, District Chittorgarh, for offence under Section 8/15 of the NDPS Act.

Learned counsel submitted that the first bail application filed on behalf of the petitioner was dismissed by this Court vide order dated 18.05.2023, while granting liberty to the petitioner to file a fresh bail application after recording of the statements of Seizure Officer.

As per prosecution, police team of PS Chittorgarh Sadar, while conducting blockade (nakabandi) on 18.06.2022, at about 9:10 am, flagged down a white coloured Bolero Pickup having registration No. RJ-22-GA-6676. As per prosecution, the petitioner was found sitting on the wheel of the offending vehicle, whereas the persons sitting besides him, namely Rashid Khan succeeded in fleeing away from the place of occurrence. During search of the offending vehicle, contraband (poppy husk/straw), contained in 18 plastic bags, weighing 350 kgs, which is greater than commercial quantity was recovered. Apart from contraband, few plastic bags containing garlic, weighing 160 kgs, were also recovered. During the course of investigation, investigating agency has also found that the petitioner is the registered owner of the offending vehicle.

Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that the vehicle was hired by co-accused Rashid Khan for delivery of garlic and the petitioner had no knowledge that with plastic bags containing garlic, few plastic bags containing contraband (poppy husk/ straw) have also been mixed in the vehicle. Learned counsel further submitted that there is nothing on record indicating that the petitioner had any knowledge of contraband being transported in the vehicle by the co-accused person, who had hired the vehicle from the petitioner for the purpose of delivering garlic. To substantiate this contention, attention of the Court was drawn towards the statements of Seizure Officer (PW-1) recorded before competent criminal court on 30.06.2023, wherein during cross-examination, he stated that at the time of flagging down the vehicle, the driver of the offending vehicle stated that he is carrying plastic bags containing garlic and he has no knowledge about contraband being loaded in the vehicle. Learned counsel urged that a mobile phone of the co-accused Rashid Khan was recovered and on the analysis of the mobile phone, no incriminating material was found against the present petitioner. Learned counsel submitted that as a matter of fact, the data analysis report of the recovered mobile phone attached with challan papers is indicative of the fact that co-accused Rashid Khan was in contact with other co-accused persons and he might be involved in the illegal trade of poppy husk/straw.

Learned counsel further submitted that the contraband was recovered on 18.06.2022, whereas the samples were sent for FSL examination on 21.06.2022. The delay in dispatching/ sending the samples beyond 72 hours is in gross violation of Clause 1.13 of Standing Order No.1/1988 dated 15.03.1988. Lastly, learned counsel submitted that the entire seizure proceedings have been conducted in violation of the provisions contained in Section 52A of the NDPS Act as neither the inventory was prepared nor the samples sent for FSL were drawn in the presence of Magistrate. It was submitted that the trial of the case is likely to consume sufficiently long time.

On these grounds, he implored the Court to enlarge the petitioner on bail.

Per contra, learned Public Prosecutor opposed the bail application.

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

Having gone through the various provisions of the NDPS Act specially Section 35, 37 and 54 of the Act, this Court prima facie finds it difficult to hold that the fact of recovery has not been proved by the prosecution beyond all reasonable doubt in the present case. Once the recovery has been proved by the prosecution, the doctrine of reverse burden comes into play against the accused, who then has to establish his case for innocence as per the standard of preponderance of probability.

It is also a settled law that while granting bail to a person accused of offences under the NDPS Act, in cases involving commercial quantity, the courts are mandatorily required to record its satisfaction/ finding that there exists reasonable grounds for believing that the accused is not involved in commission of alleged offence.

After careful examination of the FIR, challan papers and statements of Seizure Officer (PW-1), this Court is unable to accept the argument advanced on behalf of the petitioner that despite being the registered owner of the offending vehicle and also found sitting on the wheel of the offending vehicle, at the time when huge quantity of contraband was recovered by the police team, he had no knowledge about improper/ illegal use of the offending vehicle for transportation of contraband greater than commercial quantity contained in 18 plastic bags, weighing upto 20 kgs. Each and only the co-accused person Rashid Khan who fled away from the place of incident had knowledge about the contraband.

As far as argument with regard to delay in sending samples for FSL is concerned, this Court finds that there is marginal delay and there is no allegation of tampering with the sample, thus, the benefit of doubt on this count cannot be granted to the accused-petitioner. Further, the argument advanced with regard to non-adherence of Section 52 A of the NDPS Act is also not tenable in the eyes of law for the reason that no case of prejudice being caused to the petitioner for such non-compliance has been made out before this Court casting doubts on the seizure proceedings. However, the petitioner can prove his innocence by pointing out defects in the seizure proceedings, if any by leading evidence and examining necessary witnesses at trial.

In view of discussion made herein above, this Court finds it difficult to record its satisfaction as mandated by Section 37 of the NDPS Act that in the present case, there exists reasonable grounds for believing that the petitioner is not guilty of the offence and therefore, the application for bail stands dismissed.

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.