Om Prakash vs State Of Rajasthan

Rajendra Prakash Soni, J

Through instant petition, applicant has come before this Court for grant of bail under Section 439 of the Cr.P.C. in connection with crime registered pursuant to First Information Report Number 613/2020 of Police Station Sangariya, District Hanumangarh in respect of offences punishable under Sections 8/18 & 25 of Narcotic Drugs and Psychotropic Substances Act, 1985.

Earlier, applicant made an endeavor for seeking bail by way of filing two bail applications which were disposed of without considering the merits of the case since it were not pressed with liberty to file again.

I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and have perused the record carefully.

Learned Public Prosecutor for the State has strongly objected the different submissions made by learned counsel for the applicant and submitted that 9 Kgs. of contraband Opium recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the NDPS Act is attracted. He thus, craves rejection of the applicants’ bail application.

On perusal of the record and upon consideration of the submissions, it would be clear that statement of seizure officer Indra Kumar (PW-1) has been recorded during the trial which suggests that mandatory provisions of Section 52A of the Act have not been followed as he did not get the proceedings under Section 52A conducted in this case before a Magistrate or Gazetted Officer. Hon’ble the Apex Court in the case of Mangi Lal vs. The State of Madhya Pradesh (Criminal Appeal No. 1651 of 2023, decided on 12.07.2023), has held that such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act and where a certification of a Magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence. In Mohammed Khalid Vs. The State of Telangana (Criminal Appeal No. 1610 of 2023 (SC), decided on 01.03.2024) Hon’ble the Apex Court has again ruled that:-

“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report is nothing but a waste paper and cannot be read in evidence”.

Having regard to the facts and circumstances of the case and having considered specific admissions of seizure officer in respect of Section 52A of the Act, arguments addressed by learned counsel for the petitioner, particularly about the procedure of sampling adopted by the seizure officer during the alleged seizure, as noted from the challan papers and evidence produced, prima facie did not show the compliance of Section 52A of the Act in its true spirit.

Having considered the material available on record; the arguments advanced by learned counsel for the applicant particularly the facts narrated above and the fact that applicant is in custody for the last 41 months; that bail rejection order goes to show that applicant is not involved in any other case under the N.D.P.S. Act; that trial is likely to take its own considerable time and taking note of all these aspects I do not intent to go into the merits of the matter but of the considered view that the rigor of Section 37 of the N.D.P.S. act is duly satisfied, forasmuch this court feels that the applicant has available to him substantial grounds so as to question the prosecution case and no useful purpose would be served by keeping the applicant in detention for an indefinite period therefore, I am inclined to grant indulgence of bail to the petitioner at this stage.

Consequently, this third bail application is allowed. It is ordered that the accused-petitioner-Om Prakash S/o Deepa Ram in F.I.R. No. 613/2020 of Police Station Sangariya, District Hanumangarh, shall be released on bail subject to his furnishing bail/surety bonds of sufficient amount to the satisfaction of trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of their 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.