Rajpal vs State Of Rajasthan

The present second bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No.259/2020 registered at Police Station Vijay Nagar, District Ajmer for the offence(s) under Section(s) 8/15 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity, "the Act of 1985") and later on charge-sheet filed for offence under Section 8/15 and 8/25 of the Act of 1985.

After rejection of the first bail application, charge-sheet has been filed; hence, the second bail application.

Learned counsel for the petitioner submitted that at the time of seizure of the contraband, its total weight was 80 kilograms; but, when its inventory was prepared under Section 52 (a)(2), its weight was reduced to 74.5 kilograms which creates doubt as to genuineness of the recovery. He submitted that there has been non-compliance of mandatory provisions contained under Section 50 of the Act of 1985 which vitiated the entire recovery. Learned counsel submitted that there is no independent witness to the recovery. He submitted that there has been no investigation on the information furnished by him under Section 27 of the Indian Evidence Act, 1872. Lastly, learned counsel for the petitioner submitted that in view of the fact that there was one more person sitting with him in the car in question, a possibility cannot be ruled out that he has falsely been implicated in this case. He, therefore, prayed for his release..

Learned Public Prosecutor opposing the second bail application submitted that the disparity in weight of the contraband recovered from possession of the petitioner is on account of loss of moisture from the contraband during the intervening period it was seized and inventory was prepared under Section 52(a)(2) of the Act of 1985. Learned Public Prosecutor submitted that in view of commercial quantity of contraband recovered from possession of the petitioner, he does not deserve indulgence of bail in view of provisions of Section 37 of the Act of 1985. He, therefore, prayed for rejection of the bail application.

Heard learned counsels for the parties and perused the record.

The disparity in weight of the contraband cannot be ruled out on account of possibility of loss of moisture from the contraband during the interregnum it was seized and inventory was prepared. In so far as, compliance of Section 50 of the Act of 1985 is concerned, in view of the fact that the contraband was recovered from a car and not from person of the petitioner, the same has no applicability in the present case. The Hon'ble Apex Court of India in case of Sarjudas and Anr. Vs. State of Gujarat, (1999) 8 SCC 508, held as under:-

"4. What is contended by the learned Counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a Gazetted Officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.

We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in The State of Punjab v. Baldev Singh. "

Further, the Hon'ble Apex Court of India in case of State of Haryana Vs. Jarnail Singh and Ors., (2005) 5 SCC 188, held as under:-

"11. We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 was not attracted. "

Therefore, there is no force in the submission of the learned counsel for the petitioner that the entire recovery of contraband from the petitioner stands vitiated for want of compliance of Section 50 of the Act of 1985.

The remaining submissions of the learned counsel for the petitioner as to absence of independent witnesses, possibility of his false implication, are subject matter of trial and cannot be appreciated by this Court at the time of consideration of the bail application of the petitioner, especially, in view of the fact that the quantity of the contraband allegedly recovered from his possession is commercial quantity. Learned counsel for the petitioner has failed to overcome the limitations prescribed under Section 37 of the Act of 1985 to entitle him benefit of bail. Therefore, the petitioner does not deserve indulgence of bail.

Accordingly, the second bail application is dismissed.