Narpat Dan 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.17/2023, registered at Police Station Jhab, District Jalore, for offence under Section 8/15 of NDPS Act.

The first bail application (S.B. Criminal Miscellaneous Bail Application No. 11699/2023) was dismissed by this Court vide order dated 19.09.2023 as not pressed with liberty to file a fresh bail application after the statements of the Seizure Officer and the Investigating Officer are recorded.

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

As per the prosecution, SHO P.S. Chittalwana, District Jalore upon information supplied by C.O. Sanchore, got conducted nakabandi near Siwada Chauki. During nakabandi, SHO Chittalwana flagged down one SUV vehicle bearing registration No.GJ-01-KQ-1346. On seeing the police personnel, driver of the vehicle made an attempt to flee away from the place along with the vehicle. The police personnel followed the vehicle, however, driver of the vehicle succeeded in escaping away and could not be nabbed. The present petitioner was sitting next to the driver’s seat in the offending vehicle and was apprehended on the spot. A search was thereafter made of the offending vehicle and contraband (Poppy husk/straw) weighing 352 kgs. was recovered.

Learned counsel for the petitioner argued that:-

I. The recovered contraband was being transported in the offending vehicle by the driver, who after having seen the police personnel ran away from the place of incident.

II. The statements of the Seizure Officer- Padmaram (PW.2) have been recorded before the competent criminal court and the same are sufficient to indicate that no incriminating material has been found by the Investigating Agencies, to fasten any criminal liability against the petitioner.

III. The petitioner was travelling in the offending vehicle as a cleaner and he had no knowledge about the improper use/transportation of contraband by the driver.

IV. Mandatory provisions of Section 42 and Section 52-A of NDPS Act have not been complied within the present case.

On strength of the abovementioned grounds, learned counsel for the petitioner submitted that this second bail application may be allowed and the petitioner may be ordered to be released on bail.

Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that the contraband in the present case was found concealed in the vehicle in which the petitioner was travelling. Thus, it cannot be said that the contrband was not in the conscious/constructive possession of the petitioner. A huge quantity of contraband has been recovered from the offending vehicle and therefore, it cannot be believed that petitioner was not aware of improper usage of the offending vehicle in illegal transportation of the said contraband.

Learned counsel further submitted that a bare perusal of the documents attached with the challan would indicate the due compliance of the procedural requirement under Section 42 of NDPS Act has been made in the present case. Section 42 provides that on receipt of information regarding commission of an offence under the NDPS Act, the officer will have to write down the information and send it to a superior officer within 72 hours. Learned counsel submitted that the written information in compliance of Section 42 of NDPS Act was sent to Superintendent of Police, Jalore on 03.03.2023.

Learned Public Prosecutor submitted that this Court has time and again recorded a finding as to whether the provisions of Section 52-A of NDPS Act have been complied with or not is a matter to be decided during the course of trial. At the stage of bail, this Court is only required to see whether there is prima facie probability that the accused has not committed an offence and whether or not he is likely to commit any offence while on bail. Reliance was placed on the judgment of The Hon’ble Supreme Court of India in the case of Union of India through Narcotics Control Bureau, Lucknow Vs. Mohd. Nawaj Khan Crml.

Appeal No.1043/2021 decided on September 22, 2021 wherein, Hon’ble Apex Court held that:

“20 Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

(emphasis supplied)”

Learned Public Prosecutor prayed that looking to the seriousness of accusations levelled against the present petitioner, he does not deserves to be enlarged on bail.

Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the offending vehicle was intercepted by the SHO, Chittalwana, District Jalore, on 02.03.2023, upon information supplied by C.O, Sanchore, during nakabandi near Police Chauki Siwada the contraband (weighing 352 kgs.) was recovered. This Court also prima facie finds that the petitioner was travelling in the offending vehicle from its starting point and was closely acquainted with the co-accused. Thus, at this stage, it cannot be presumed that the petitioner was ignorant about the huge quantity of contraband being transported in the offending vehicle.

Hon’ble Supreme Court of India in the cases of Karnel Singh Vs. State of Haryana reported in (2009) 8 SSC 539 and in the case of Bota Singh Vs. State of Haryana (2021) SCC Online SC 324 has been pleased to held that the issue whether there was compliance of the procedure laid down under Section 42 of the NDPS Act is a question of fact. The question is one that should be raised in the trial.

As far as argument with regard to non-compliance of the provisions contained in Section 52-A of NDPS act is concerned, suffice is to note that this Court in the case of Prakash Dhakad Vs. State (S.B. Criminal Miscellaneous III Bail Application No. 7722/2023) decided on 09.10.2023 has held that even in the cases where it is found that mandate of Section 52-A of the NDPS Act has not been properly complied with, the same would not render the entire seizure proceedings defective, unless the accused is able to make out a case of prejudice caused to him before the competent criminal court by leading evidence and examining necessary witnesses at a trial.

For the above reasons, the twin conditions contained under Section 37(1)(b) of the NDPS Act are not duly satisfied in the present case.

Consequently, the present second bail application is dismissed being devoid of any merit whatsoever.