[2025:RJ-JP:45151] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous Second Bail Application No. 10178/2025 Shyam Singh S/o Daani Singh, Aged About 42 Years, Ro Kolkhedi, PS Pagariya, District Jhalawar (Rajasthan) (At Present Confined In District Jail Jhalawar) ----Petitioner Versus State Of Rajasthan, Through PP ----Respondent Connected With S.B. Criminal Miscellaneous Second Bail Application No. 14024/2025 Narayansingh S/o Karansingh, Aged About 47 Years, R/o Semli, Police Station Pagariya, District Jhalawar (Rajasthan) (Presently Confined In District Jail At Jhalawar). ----Petitioner Versus State Of Rajasthan, Through PP ----Respondent For Petitioner(s) : Mr. Ayush Bamboriya for Mr. Ajay Singh Yaduvanshi Mr. Vivek Goyal Mr. Narsi Prasad Sharma For Respondent(s) : Mr. Tapesh Agarwal, PP with Mr. Gaurav Gupta, Asstt. G.A. HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 06/11/2025 1. These second bail applications under Section 483 BNSS have been filed on behalf of the petitioners, who have been arrested in connection with FIR No.683/2023 registered at Police Station Kotwali Jhalawar, District Jhalawar (Raj.) for offences punishable [2025:RJ-JP:45151] (2 of 6) [CRLMB-10178/2025] under Sections 8/21 and 8/29 of the NDPS Act. After completion of investigation, police filed charge-sheet in this matter in the court concerned. 2. Previous bail applications filed on behalf of the petitioners were dismissed as withdrawn by this court vide order dated 03.12.2024 while giving liberty to renew the prayer for bail after recording the testimony of Seizure Officer. Now, statement of Seizure Officer has been recorded during the course of trial. Thus, these second bail applications have been preferred. 3. Learned counsel for the petitioners submits that petitioners have falsely been implicated in this case. It is submitted that petitioners Shyam Singh and Narayansingh are in custody since 29.10.2023 and 03.11.2023 respectively, and as such, they have suffered incarceration of more than 2 years. Arguing the case of petitioner Shyam Singh, it is submitted that provisions of Section 42 of NDPS Act have not been complied with properly. Section 42 provides for power of a police officer of making entry, search, seizure and arrest without warrant or authorization in any building, conveyance or enclosed place between sunrise and sunset, provided that 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 facility for the escape of an offender. The police officer may enter and search such buildings, conveyance or enclosed place at any time between sunset and sunrise 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 [2025:RJ-JP:45151] (3 of 6) [CRLMB-10178/2025] immediate official superior. Counsel further relies upon the order passed by Hon’ble Apex Court in the case of Mohinder Kumar VS State of Goa, reported in AIR1995 SC 1157. 4. Counsel submits that, in the case of Mohinder Kumar v. State of Goa (Supra), it has been emphatically held that from the very moment a police officer gets to know of the possession or recovery of contraband, he is under obligation to scrupulously follow the mandatory provisions of the NDPS Act. The officer, from that stage itself, ceases to be a mere police officer under the CrPC and is expected to act according to the safeguards and procedures prescribed under the NDPS Act. Any infraction in adhering to these statutory requirements contaminates the entire search, seizure, and prosecution thereafter. 5. Learned counsel further submits that testimony of the seizure officer would reveal that in the garb of accidental search, mandatory provisions of the NDPS Act were not followed by the seizure officer. Counsel further submits that log book of government vehicle used by raiding party has not been filed deliberately along with charge sheet. Counsel further submits that charge sheet in this case has been filed without obtaining FSL report. It is argued that all these facts and circumstances clearly indicate that a false case of recovery of 430 gram of Smack has been planted. Lastly, it is urged that continued incarceration of the petitioner Shyam Singh will serve no fruitful purpose, as he has clean antecedents and the trial will take considerable time to conclude. 6. Counsel appearing on behalf of the petitioner Narayansingh submits that no contraband has been recovered from the [2025:RJ-JP:45151] (4 of 6) [CRLMB-10178/2025] possession of the petitioner and he has been made accused solely on the basis of police interrogation of the co accused Shyam Singh. Counsel submits that petitioner has already suffered incarceration of more than 2 years and continued incarceration of the petitioner Narayansingh will serve no fruitful purpose. Counsel submits that though there are two criminal antecedents against the petitioner under the NDPS Act but in one case there is no recovery from the petitioner and in other case he was found in possession of petty quantity of contraband. 7. Learned Public Prosecutor opposes the submissions made by counsel for the petitioner and submits that considering the recovery of commercial quantity of contraband, the petitioners does not deserve indulgence of bail in view of section 37 of the NDPS Act. 8. I have considered the rival contentions advanced by learned counsel for the parties and perused the material available on record. 9. It is settled that Section 37 of the NDPS Act does not impose an absolute embargo on grant of bail. While considering bail, the Court is not required to record a positive finding of innocence; rather, it must assess, prima facie, whether the accused may not be guilty, upon a reasonable and broad evaluation of the material on record. Meticulous examination of evidence is not warranted at this stage. 10. The petitioners have been in custody for over two years, and there appears no likelihood of early conclusion of trial. Thus, the petitioners' fundamental right to speedy trial, guaranteed under Article 21 of the Constitution of India, stands infringed. Prolonged [2025:RJ-JP:45151] (5 of 6) [CRLMB-10178/2025] incarceration generally militates against the cherished right to personal liberty, and in such a situation, conditional liberty must override the statutory embargo under Section 37 of the NDPS Act as held by the Hon'ble Supreme Court in series of the cases. 11. Having regard to the totality of facts and circumstances, argument advanced by the counsel for the petitioners as noted above, as also considering the statement of the seizure officer; trial will take considerable time in its conclusion as well as looking to the custody period, but without commenting anything on the merits/demerits of the case, I deem it proper to allow these second bail applications. 12. These second bail applications are accordingly allowed and it is directed that accused-petitioners – (1) Shyam Singh S/o Daani Singh & (2) Narayansingh S/o Karansingh, shall be released on bail provided each of them furnishes a personal bond in the sum of Rs.5,00,000/- (Rupees Five Lakh Only) together with two sureties in the sum of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand Only) each to the satisfaction of the learned Trial Court with the stipulation that they 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. 13. It is made clear that the accused-petitioners shall not involve in any other offence(s) during currency of the bail and they shall mark their presence every week in the concerned police station, till trial is concluded. It is further directed that petitioners shall share their mobile numbers (in use) to the trial court and [2025:RJ-JP:45151] (6 of 6) [CRLMB-10178/2025] Investigating Agency and they shall not switch off their phones for longer period. 14. Concerned SHO shall enter the attendance of the petitioners in the Roznamcha. In case the petitioners fail to mark their presence in the concerned police station, as directed above, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard. 15. If breach of any of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial Court to cancel the bail granted to them by this Court. 16. Office is directed to send a copy of this order to the concerned SHO for necessary compliance. 17. The observations made hereinabove are only for decision of the bail application and would not have any impact on the trial of the case in any manner. (ANIL KUMAR UPMAN),J LALIT MOHAN /51-52