Bhagwana Ram @ Jeevraj 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.175/2023 registered at Police Station Khunkhuna, Dist. Nagaur, for the offence under Section 8/21 of the NDPS Act.

The first bail application was dismissed as not pressed by this Court vide order dated 16.10.2023.

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

Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that as per the prosecution, psychotropic substance MDMA weighing 100gms. was recovered from the conscious possession of the present petitioner during his personal search. Drawing attention of the Court towards the notice dated 11.08.2023 allegedly given to the petitioner under Section 50(1) of the NDPS Act, learned counsel submitted that the aforesaid notice was given to the petitioner after conducting his personal search.

Learned counsel submitted that since the notice under Section 50 (1) of the NDPS Act was given to the petitioner after completing his personal search, the same was in contravention of the provisions of Section 50(1) of the NDPS Act. It was further submitted that the bare object of the provisions enumerated under Section 50(1) of the NDPS Act is to make an individual aware about his rights of being getting searched before a Gazetted Officer as prescribed or before a Magistrate. However, in the present case, since the search proceedings were already conducted by the investigating agency before issuing him notice under Section 50(1) of the NDPS Act, the valuable right of the petitioner was contravened and thus the same suffers from the gross illegality.

Lastly, learned counsel submitted that the petitioner is in judicial custody since 11.08.2021 and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

Per contra, learned Public Prosecutor has opposed the bail application and submitted that the psychotropic substance greater than commercial quantity was recovered from the conscious possession of the present petitioner and, therefore, looking to the seriousness and nature of the allegations made against the petitioner, he does not deserve to be enlarged on bail.

Having considered the rival submissions, facts and circumstances of the case and after perusing the notice dated 11.08.2023 allegedly issued to the petitioner in purported compliance of Section 50(1) of the NDPS Act, this Court prima facie finds that the notice in conformity with the provision of Section 50(1) of the NDPS Act was given to the petitioner by the investigating officer after conducting his personal search, therefore, the same suffers from gross illegality. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

Consequently, the second bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Bhagwana Ram @ Jeevraj S/o Ramdevaram arrested in connection with F.I.R. No.175/2023 registered at Police Station Khunkhuna, Dist. Nagaur, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.