Subhash Chand, J
1. This is the second Bail Application on behalf of the applicant Jyotish Kumar Rai @ Jyotish Kumar Roy @ Jotish Kumar Roy @ Jotish Roy in connection with Saiko P.S. Case No. 09 of 2022, registered under Section 15(c)/25 N.D.P.S. Act, corresponding to N.D.P.S. Case No.31 of 2022, pending in the Court of Special Judge (N) Ranchi in which the prayer for bail has been renewed on the ground that the first Bail Application of the applicant was rejected in B.A. No. 8292 of 2022 vide order dated 14.10.2022 by this Bench.
It is also further submitted that while arguing this first Bail Application of the applicant, this legal position could not be brought in the knowledge of the Court that the sampling of the contraband was sent belated in utter violation of the provisions of the Central Government Notification of the year 1989.
It is also further submitted that similarly situated co-accused Jitendra Kumar Saw @ Jitendra Kumar Sah was granted bail by this Bench in B.A. No. 8459 of 2022 vide order dated 07.12.2022 and his Bail Application was allowed by this Bench on this very ground that the sampling was sent belated to the Forensic Science Laboratory in utter violation of provisions of Central Government Notification of the year 1989. This legal position can be raised at any time and on this ground the prayer for bail of the present applicant has been renewed.
Learned Spl. P.P. vehemently opposed the contention made by the learned Counsel for the applicant and contended that the Central Government Notification of the year 1989 is no more in existence after coming into Rules which came into force on 23rd December, 2022 and in the Rules no specific period has been mentioned that the sampling should be sent within such time limit, therefore, the delay of 16 days cannot be accepted as a new ground for renewal of the bail.
The first Bail Application of the applicant Jyotish Kumar Rai @ Jyotish Kumar Roy @ Jotish Kumar Roy @ Jotish Roy was rejected by this Court on 14.10.2022 in B.A.No. 8292 of 2022 and the ground of rejection of bail is that the recovered contraband was of commercial quantity and the sampling of the same was also taken from each bag and were sent to S.F.S.L.
The case of the present applicant is also identical to that of co-accused Jitendra Kumar Saw @ Jitendra Kumar Sah who was granted bail in B.A.No. 8459 of 2022 by this Bench on 07.12.2022. In this Bail Application also the ground of representative sampling, commercial quantity was also taken into consideration. The bail was granted to the co-accused Jitendra Kumar Saw @ Jitendra Kumar Sah on this ground that the sampling was sent delayed in utter violation of the provisions of Central Government Notification of the year 1989.
So far as the Central Government Notification of the year 1989 is concerned in which there was provisions that the sampling should be sent without any delay. After coming into the Rules which came into force on 23.12.2022 which is prospective, the provisions of Central Government Notification will apply in the present case. Moreover, admittedly in the Rules also which came into force on 23.12.2022 there is provisions that the sampling should be sent without any delay as soon as possible. Therefore, the intent of the legislature in the Notification and Rules as well was that the sampling of the contraband should be sent without any delay as soon as possible. In the present case the contraband was recovered on 02.04.2022. The sampling was taken on 18.04.2022 and the same was sent to S.F.S.L. on 23.05.2022 as such there is a delay of 21 days which is also against the provisions of the Central Government Notification of the year 1989 and also Rules which came into force on 23rd December, 2022.
In view of the above, the ground for the renewal of the prayer of bail is found sufficient.
Accordingly, second Bail Application of the applicant is hereby allowed. Let the applicant be released on bail on furnishing bail bond of Rs.40,000/-(Rupees Forty Thousand) with two sureties of the like amount to the satisfaction of the court concerned in aforesaid case subject to the following conditions:-
i. The applicant will co-operate in the investigation, inquiry and trial and will not absent himself on the date fixed by the learned trial court without any reasonable cause;
ii. The applicant will not threaten the witness or tamper any evidence;
iii. One of the surety must be the close relative of the applicant; and
iv. In breach of any of the conditions, the learned trial court would be at liberty to cancel the bail of the applicant without any further reference to this Court.
