[2025:RJ-JP:2970] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous Bail Application No. 12584/2024 Babi @ Baubi Khan S/o Shaukin Khan, Aged About 34 Years, R/o Mangraul At Present Bagchauli Lodha, Police Station Mania, District Dholpur. (At Present Confined In District Jail, Dholpur). ----Petitioner Versus State of Rajasthan, through PP ----Respondent S.B. Criminal Miscellaneous II Bail Application No. 514/2025 Jitu @ Jitendra Singh S/o Bajrang Singh, Aged About 30 Years, R/o Rajput Colony, Sant Nagar Road, Police Station Badi, District Dholpur (Raj.). (At Present Confined In District Jail, Dholpur). ----Petitioner Versus State of Rajasthan, Through PP ----Respondent For Petitioner(s) : Mr. Anil Jain Mr. Rajveer Singh Gurjar For Respondent(s) : Mr. N.S. Dhakar, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 15/01/2025 These bail applications under Sections 483 BNSS have been filed on behalf of the petitioners herein who have been arrested in connection with FIR No.92/2024 PS Badi, District Dholpur for offences under Sections 8, 20 of the NDPS Act. After completion of investigation, police has filed charge sheet in the court concerned. [2025:RJ-JP:2970] (2 of 6) [CRLMB-12584/2024] Learned counsel for the accused petitioners submit that the accused petitioners have falsely been implicated in this case. It is contended that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides power of a police officer of making entry, search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset, if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. The police officer may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he has to forthwith send a copy thereof to his immediate official superior. Learned counsel argue that as per the prosecution case, alleged recovery of contraband Ganja was effected from one Car (No.RJ 11 UA 4866) in the intervening night of 12.03.2024 and 13.03.2024. The accused petitioner Jitendra @ Jeetu was arrested from the spot. It is submitted that as soon as, it came to the knowledge of the police team that it is a case of recovery of narcotic drugs and psychotropic substance, it was incumbent upon the police party to follow the provisions of NDPS Act but no memo in terms of Section 42 of the NDPS Act was prepared by the seizure officer. Reliance has been placed on judgment passed by [2025:RJ-JP:2970] (3 of 6) [CRLMB-12584/2024] Hon’ble Supreme Court in the case of State of Orissa vs Laxman Jena, reported in 2009 Vol.16 SCC 332. Secondly, it is argued that as per the prosecution story, the seal used by the seizure officer in recovery proceedings was destroyed at the spot and separate memo (Fard Nashtikaran) to this effect was prepared on 13.03.2024 itself. However, surprisingly, even after destroying of the said seal, on a later date i.e., 21.03.2024. the impression of the seal is appearing in the malkhana register, which creates doubt on the prosecution case. The Seizure Officer Shiv Lahari (PW.1) in his cross-examination also failed to give any reasonable answer in this respect. Apart from above, it is contended that proceedings carried out in terms of Section 52 (A) of the NDPS Act are also vitiated as it is clear from the proceedings, placed on record, that the jurisdictional magistrate did not examine the recovered contraband on his own and while relying on the statements of the seizure officer, samples were drawn. It is contended that as per the material available on record, 25 grams of contraband from each packet was taken out and three samples of 500 Grams each were prepared. Thereafter test samples (A1, A2 and A3) and control samples (B1, B2 and B3) were prepared. Lastly, they submit that the petitioners do not have any criminal antecedents under the NDPS Act. The accused petitioner Jitendra @ Jeetu is in custody since 13.03.2024 whereas accused petitioner Babi @ Baubi Khan is in custody since 26.07.2024. Investigation has been completed and charge sheet has been filed in the court concerned whereas trial will take time [2025:RJ-JP:2970] (4 of 6) [CRLMB-12584/2024] in its conclusion. They submit that further custody of the petitioners would not serve any fruitful purpose. Per contra, learned Public Prosecutor opposes the bail applications and submits that huge quantity of the contraband has been recovered and therefore, considering the rigour of Section 37 of the NDPS Act, bail should not be granted to the accused petitioners. I have heard and considered the submissions advanced by counsel for the petitioners as well as learned Public Prosecutor and perusal the material available on record. From the material available on record, prima facie, it appears that recovery was effected in night time whereas no memo as per provisions of Section 42 of the NDPS Act was prepared wherein it was incumbent upon the seizure officer to record his reasons in writing for search, seizure and arrest without warrant or authorisation in any building, conveyance or enclosed place between sunrise and sunset for the concealment of evidence or the possibility of escape of the suspect after recording the reasons in writing. Memo prepared in respect of destroying of seal (Fard Nashtikaran) used in recovery proceedings shows that seal was destroyed on the date of alleged recovery itself at 06:35 AM on 13.03.2024 whereas malkhana register showed impression of the seal on 21.03.2024. The petitioners do not have any criminal antecedents and trial will take time in its conclusion. [2025:RJ-JP:2970] (5 of 6) [CRLMB-12584/2024] Section 37 of the NDPS Act does not create an absolute embargo for grant of bail. Further, while considering an application for grant of bail, it is not required for the Court to record positive finding that the accused is not guilty. The only requirement of law is that the Court would look at the material in a broad manner and reasonably see whether the accused's guilt may be proved. The satisfaction which courts are expected to record i.e, the accused may not be guilty is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the material collected during investigation. Having regard to the overall facts and circumstances of the case and considering arguments advanced by learned counsel for the petitioners without expressing any opinion on the merits/demerits of the case, I deem it just and proper to accept the instant bail applications. Thus, these applications for bail are allowed and it is directed that accused petitioners Babi @ Baubi Khan S/o Shri Shaukin Khan and Jitu @ Jitendra Singh arrested in connection with FIR No.92/2024 PS Badi District Dholpur shall be released on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) each to the satisfaction of the learned trial court with the stipulation that each of them shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. [2025:RJ-JP:2970] (6 of 6) [CRLMB-12584/2024] It is made clear that the petitioners shall not involve in any other similar offence during currency of the bail. They shall mark their presence in the concerned police station in the first week of every month till currency of trial. In case, any breach of these condition is reported or come to the notice of the Court, the trial court may cancel the bail granted to them by this Court. The observation made hereinabove is only for decision of these bail applications and will not impact trial in any manner. (ANIL KUMAR UPMAN),J LALIT MOHAN /752