Kamlesh Dhakad vs State Of Rajasthan

Dinesh Mehta, J

The present bail application has been filed by the applicant under Section 439 of the Cr.P.C. in connection with FIR No.60/2020, registered at Police Station Bagoda, District Jalore for the offence under Sections 8/15 & 29 of the NDPS Act.

Learned counsel for the applicant submitted that the applicant has been roped in on the basis of information received under Section 27 of the Evidence Act and he has been accused of offence under Section 29 of the NDPS Act.

Learned counsel submitted that the co-accused Ladhuram, from whom the recovery of contraband substance was made has been enlarged on bail by a Coordinate Bench of this Court by an order dated 02.11.2023, passed in his bail application and hence, the present applicant be released on bail.

Learned Public Prosecutor is not in a position to dispute the aforesaid position of facts and law.

Heard learned counsel for the parties and perused the order dated 02.11.2023, passed in the bail application filed by the main accused Ladhu Ram, which reads thus:-

“5. Have considered the submissions made by both the parties and have perused the material available on record.

The circumstances created by the Police team in this matter bring the recovery into doubt. A bare perusal of the on-oath statement of SHO Surajbhan Singh reveals that he did not send the samples to the FSL within the stipulated time and after passing of ten days of the seizure, he went on leave as his father was not keeping well. It is astounding as to how a police official who is a seizing officer in an NDPS case be so lax in his conduct and not sent the samples for FSL within 72 hours as stipulated in the S/O No. 1/88 dated 15.03.1988 and more so in this case as he admitted in his sworn statement that he was well aware of the said stipulated period as per the Standing Order referred above. Any officer cannot jeopardize the case of an accused, whose personal liberty is being curtailed, acting at his/her/their leisure and pleasure.

In the case at hand, not even a single step of the process of seizure and sampling in an NDPS case has been done as per the mandate of law and the statutory provisions. As per the statutory provisions, Standing Orders issued in this regard as well as the judicial pronouncements laid down by Hon’ble the Apex Court, the process should ideally start from seizure and after that, preparation of inventory and then it should lead to sampling and forwarding of samples to the FSL. The contraband has to be forwarded to the officer in charge of the police station which is nearest to the place of seizure/ officer empowered under Section53 of the NDPS Act and after preparation of inventory, an application is to be made to the Magistrate concerned for certification. Post-certification by the magistrate, the representative samples are drawn in his presence which further certifies the authenticity and accuracy of the list of samples drawn from the seized contraband. After compliance of Section 52A of NDPS Act, the samples so drawn from the inventory in the presence of the concerned magistrate are sent for FSL. In the matter at hand, neither was the inventory prepared on time nor were the samples sent after certification rather they were sent on 18.06.2020 and the inventory was prepared on 06.02.2021 and certified on 10.06.2021. The legal position discussed above pertaining to forwarding of samples drawn after preparation of the inventory and certification by magistrate has been reiterated by Hon’ble the Supreme Court in Simranjit Singh Vs. State of Punjab passed in Criminal Appeal NO.1443 OF 2023 (Arising out of S.L.P.(Crl.) No. 1958 of 2023) vide order dated 09.05.2023.This court is of the considered opinion that an accused cannot be allowed to walk scot-free for the sole reason that the steps were not followed one after the other but in the present case, the non-compliance of procedure is accompanied with lackadaisical approach of the investigating agency as well as long period of incarceration pending trial. There is no provision of law that mandates taking of samples at the time of seizure, however, there is no provision barring the same too if other surrounding factors align in consonance with the statutory stipulations. The personal liberty of an individual cannot be encroached upon by keeping him behind the bars for an indefinite period of time pending trial. Looking to the totality of facts and circumstances of the case and the possibility that the trial may take long time to conclude, this court deems it just and proper to enlarge the petitioner on bail. Needless to say, none of the observations made herein under shall affect the rights of either of the parties during trial and this Court refrains from commenting on the niceties of the matter.”

Following the same reasoning and considering that the co-accused Ladhuram from whom the recovery was made has already been enlarged on bail, this Court is persuaded to enlarge the present applicant on bail.

The present bail application is allowed. It is ordered that applicant Kamlesh Dhakad S/o Jagdish Dhakad arrested in connection with FIR No.60/2020, registered at Police Station Bagoda, District Jalore shall be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/- and two sureties of Rs.50,000/- each to the satisfaction of the learned trial Court.

Applicant shall be required to appear before the trial Court on all dates of hearing and as and when called upon to do so.

Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall, however, not come in the way of the trial Court to take an independent view of the matter, based on ocular and oral evidence, while finally deciding the case.