Rajasthan High Court – Jodhpur
Devilal vs State Of Rajasthan (2026:Rj-Jd:20082) on 20 April, 2026
[2026:RJ-JD:20082]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3474/2026
Devilal S/o Kishna Ram, Aged About 21 Years, R/o Ravli Nadi
Nagar, Police Station Rgt, District Barmer ,rajasthan (Lodged In
Sub Jail, Sanchore)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Bhagirath Bishnoi
For Respondent(s) : Mr. Pawan Bhati, PP
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
20/04/2026
The instant second application for bail under Section 483 of
BNSS (439 of Cr.P.C.) has been filed by the petitioner who has
been arrested in the present matter. The requisite details of the
matter are tabulated herein below:
S. No. Particulars of the case
1. FIR Number 276/2024
2. Police Station Sanchore
3. District Sanchore
4. Offences alleged in the FIR S. 8, 22, 29 NDPS Act
5. Offences added, if any S. 25 NDPS Act
The 1st application filed on behalf of petitioner i.e S.B Criminal
Misc. Bail Application No. 4000/2025 was dismissed as not
pressed vide order dated 24.11.2025 passed by this court,
however, with the liberty to the petitioner to file fresh bail
application after recording of the statement of Seizure Officer-
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Ganga Prasad. After rejection of first bail application, the
statement of Seizure Officer- Ganga Prasad has been recorded as
PW-3. Hence, this second application for bail has been preferred.
Learned counsel for the petitioner submits that the petitioner
has been falsely implicated in the present case. It is contended
that although a recovery of 105 grams of narcotic contraband-
Mephedrone (M.D.) is allegedly effected from the petitioner, the
mandatory provisions of the NDPS Act have not been complied
with which vitiates the recovery. It is further submitted that there
are material contradictions in the prosecution case, particularly in
the cross-examination of the seizing officer, who has admitted
mandatory non-compliance of Section 42 of the NDPS Act and
absence of independent witnesses. The relevant portion of
statement of PW-3- Ganga Prasad is reproduced hereinbelow:
“जिरह द्वारा वकील श्री नंदपालसिंह मुलजिम देवीलाल :- हम थाने से कितने
बजे रवाने हुये थे, समय याद नहीं है। कार्यवाही के बाद रात को करीबन 2 एएम
बजे थाने गये थे। हमारे पास सरकारी वाहन था। यह कहना सही है कि चालक ने
लॉगबुक भी भरी थी। यह कहना सही है कि मुखबिर की सूचना थाने में नहीं
मिली थी। हमें गश्त के दौरान धानता गांव में मुखबिर की सूचना मिली थी।
मुखबिर ने मुझे टेलीफोनिक सूचना से उक्त्त मादक पदार्थ बाबत सूचना दी थी।
मुखबिर का फोन 08.45 बजे के आसपास आया था। हम जब रेड देने गये तब
मुखबिर धानता से बरामदगीस्थल तक साथ था। मैं मैन मुखबिर से आज दिन तक
नहीं मिला। यह कहना सही है कि मुझे मुखबिर की सूचना वाया पुलिसकर्मी के
मिली थी। यह कहना सही है कि मुखबिर ने जिस पुलिसकर्मी को उक्त मादक
पदार्थ बाबत सूचना दी उस पुलिसकर्मी ने मुखबिर सूचना को धारा 42(2)
एनडीपीएस एक्ट के तहत फर्द के रूप में अभिलिखित नहीं किया। यह कहना
सही है कि मुखबिर ने सीधे मुझे सूचना नहीं दी थी। यह कहना सही है कि मुख्य
मुखबिर की कोई सूचना इस प्रत्रावली में नहीं है।”
It is further submitted that the alleged recovery of contraband
was stated to be affected on 22.06.2024 whereas samples were
sent for the FSL on 15.07.2024, after an inordinate and unjustified
delay of 23 days. He has also submitted that Clause 1.13 of
Standing Order No.1/1988 dated 15.03.1988, mandates that
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samples drawn ought to have been sent for FSL examination
within 72 hours from recovery.
It is also argued that co-accused Ramesh Kumar has already
been enlarged on bail by this Court in S.B. Criminal Misc. Bail
Application No. 8871/2024 and the case of the present petitioner
is on similar footing than that of the co-accused Ramesh Kumar. It
is further submitted that the charge-sheet has already been filed,
the petitioner is a young boy of 21 years old who is in custody
since 23.06.2024 (1 year, 9 months and 28 days). It is further
submitted that out of total 15 prosecution witnesses, only 4
witnesses have been examined so far and the trial is likely to take
considerable time to conclude.
In support of his contention, learned counsel for the petitioner
placed reliance on the judgment rendered by the Hon’ble Supreme
Court in Rabi Prakash Vs. State of Orisa (Leave to Appeal
(Criminal) No.4169/2023 and Mohd Muslim @ Hussain Vs.
State (NCT of Delhi) in Special Leave Petition (Crl.)
No(s).915 of 2023.
Learned counsel has further placed reliance on the judgment of
Honb’le Supreme Court in the case of Balwinder Singh Vs. State
of Punjab & Anr. (Special Leave to Appeal (Crl.)
No.8523/2024), in which, while granting bail it has been
observed as under:
“9. The incident in the present case occurred on 25.06.2020 and the
petitioner was arrested soon thereafter on 26.06.2020. By now, 6 co
accused have been granted bail. As the prosecution wishes to examine
17 more witnesses, the trial is unlikely to conclude on a near date.
10. Considering the above and to avoid the situation of the trial process
itself being the punishment particularly when there is presumption of
innocence under the Indian jurisprudence, we deem it appropriate to(Uploaded on 30/04/2026 at 10:41:29 AM)
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accordingly. Appropriate bail conditions be imposed by the learned
trial court.”
Learned counsel for the petitioner has also placed reliance on
the judgment passed by a Co-ordinate Bench of this Court in
Avtar Singh Vs. State Of Rajasthan [S.B. Criminal
Miscellaneous Bail Application No. 13483/2024], decided on
22.05.2025, wherein, while allowing the bail application, it was
observed as under:
“7. In Rabi Prakash Vs. State of Odisha passed in Special leave to
Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court has again
passed an order dated 13th July, 2023 dealing this issue and has held
that the provisional liberty(bail) overrides the prescribed impediment
in the statute under Section 37 of the NDPS Act as liberty directly hits
one of the most precious fundamental rights envisaged in the
Constitution, that is, the right to life and personal liberty contained in
Article 21.
8. Considering the overall facts and circumstances of the case and the
fact that petitioner is behind the bars for around more than two years
thus, looking to the fact that there is high probability that the trial may
take long time to conclude and given the flagrant non-compliance with
these mandatory provisions, this Court finds that the continued
detention of the petitioner is not justified thus it is deemed suitable to
grant the benefit of bail to the petitioner.
9. It is nigh well settled law that at a pre-conviction stage; bail is a rule
and denial from the same should be an exception. The purpose behind
keeping an accused behind the bars during trial would be to secure his
presence on the day of conviction so that he may receive the sentence
as would be awarded to him. Otherwise, it is the rule of Crimnal
Jurisprudence that he shall be presumed innocent until the guilt is
proved.”
Furthermore, to support his contention on non-compliance,
learned counsel for the petitioner has placed reliance on the
judgment rendered in Rambabu v. State of Rajasthan (SLP
(Crl.) No. 5648/2025 and SLP (Crl.) No. 5732/2025),
decided on 13.08.2025, wherein relief was granted considering the
delay and lack of substantive evidence. Learned counsel for the
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petitioner further placed relied upon the judgment rendered by the
Hon’ble Supreme Court in Wajid Ali @ Tinku Vs. State of
Rajasthan (Special Leave to Appeal No.7049/2025) decided on
09.02.2026
Per contra, learned Public Prosecutor has opposed the bail
application and submits that a commercial quantity of contraband
i.e. 105 grams of Mephedrone has been recovered from the
conscious possession of the petitioner. It is further submitted that
the petitioner has as many as 12 cases, including 2 cases under
the NDPS Act. However, he is not in a position to dispute the fact
that the samples were sent for FSL examination after a delay of
23 days.
In response, learned counsel for the petitioner submits that in
the two cases registered against the petitioner under the NDPS
Act, he has already been enlarged on bail, and the quantity
involved therein was below commercial quantity. It is further
submitted that, in FIR No. 100/2022 registered at Police Station
RGT, Barmer, the allegations against the petitioner, as reflected
from the contents of the FIR, are limited to the sale of arms to the
co-accused. Learned counsel also submits that the other criminal
antecedents of the petitioner relate to offences under the Arms
Act except one, which are triable by the Court of Magistrate.
Having heard and considered the rival submissions, facts and
circumstances of the case as well as perused the material
available on record, at the stage of considering a bail plea pending
trial, this Court is not expected to record any definite opinion or
make firm observations regarding discrepancies or legal defects in
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the prosecution case, as doing so may seriously prejudice the
prosecution’s case. At the same time, the Court cannot ignore
non-compliance with mandatory provisions including Clause 1.13
of Standing Order No.1/1988 dated 15.03.1988 which mandates
that samples drawn ought to have been sent for FSL examination
within 72 hours from recovery and the fact that the accused has
remained incarcerated since 23.06.2024 i.e. 1 year, 9 months and
28 days as on today.
The Hon’ble Apex Court in the case of Mohd. Muslim @
Hussain (Supra), observed that, while deciding a bail application
under Section 439 Cr.P.C., the Court may not be able to form a
definite opinion that the accused is not guilty of the alleged
offence; however, for the limited purpose of just disposal of the
bail application, it may form a tentative view that the material on
record is insufficient to attract the embargo under Section 37 of
the NDPS Act.
Accordingly, this Court has examined the facts of the case
and the manner in which the proceedings were conducted. If the
surrounding circumstances are inconsistent with the statutory
requirements, the personal liberty of an individual cannot be
curtailed by keeping him in custody for an indefinite period
pending trial.
The Hon’ble Apex Court in the case of Abhimanue Etc. Etc.
vs. State of Kerala passed in SLP (CRIMINAL) NOS.5814-
5816 OF 2025, while relying upon the decision in Ayub Khan vs.
State of Rajasthan has held that criminal antecedents by
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themselves does not constitute a ground for denial of bail. The
Hon’ble Court has held that:
“23. Our attention was also invited to the status report “led by the
State, to indicate the various criminal antecedents of the appellants.
Suffice it to say, however, that such antecedents by themselves cannot
constitute a ground for denial of bail. In this context, a useful
reference may be made to the decision of a coordinate Bench of this
Court in Ayub Khan v. State of Rajasthan (2024 SCC OnLine SC
3763) of which one of us (Augustine George Masih, J.) was a
member. The relevant paragraph therefrom is extracted below:
“10. The presence of the antecedents of the accused is only
one of the several considerations for deciding the prayer for
bail made by him. In a given case, if the accused makes out
a strong prima facie case, depending upon the fact situation
and period of incarceration, the presence of antecedents
may not be a ground to deny bail. There may be a case
where a Court can grant bail only on the grounds of long
incarceration. The presence of antecedents may not be
relevant in such a case. In a given case, the Court may grant
default bail. Again, the antecedents of the accused are
irrelevant in such a case. Thus, depending upon the peculiar
facts, the Court can grant bail notwithstanding the existence
of the antecedents. ……… .””
Thus, in the peculiar facts and circumstances of the case, in
absence of sufficient incriminating material available on record,
this Court is of the view that the embargo under Section 37 of the
NDPS Act would not stand in the way of granting bail.
Furthermore, considering that the challan has already been filed;
only four witnesses have been examined out of 15 and that the
trial of the case will take sufficient long time to conclude; 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 483
of BNSS (439 Cr.P.C.) is allowed. It is ordered that the accused-
petitioner as named in the cause title, arrested in connection with
the above mentioned FIR, shall be released on bail, if not wanted
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in any other case, provided applicant 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 their appearance before that
court on each & every date of hearing and whenever called upon
to do so till completion of the trial.
In case, the petitioner remains absent on any date of
hearing or makes an attempt to delay the trial by seeking
unnecessary adjournments, it shall be taken as a misuse of
concession of bail granted to him by this Court. The prosecution,
in such a situation, shall be at liberty to move an application
seeking cancellation of bail granted to the petitioner today by this
Court.
It is also made clear that the observations made hereinabove
are only for the purpose of deciding the present bail application
and shall not affect the merits of the case during trial.
(MUKESH RAJPUROHIT),J
62-AbhishekS/-
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