The Rajasthan High Court held that the non-production of material even after passing of the order of the Trial Court amounts to the contempt of order.

The Jodhpur Bench of the Court held thus in a batch of criminal miscellaneous bail applications filed under Section 439 of the Criminal Procedure Code (CrPC).

A Single Bench of Justice Farjand Ali observed, “A serious dent has indeed been put on the genesis and genuineness of the story set out by the prosecution in the charge sheet. The accused are languishing in jail. They are crying for justice and seeking help of the Court of law to provide assistance to explain them that they are innocent. At this juncture, this Court feels that non-production of material even after passing of the order of the trial Court amounts to contempt of the order of the trial Court which has never been purged rather the order has been defied brazenly.”

The Bench added that when the question comes to the liberty of an individual which is otherwise guaranteed by the Constitution, the High Court being the Constitutional Court, is supposed to and expected to protect the fundamental right of an accused.

Advocate Ashok Khilery represented the petitioner while PP Mukhtiyar Khan represented the respondent.

Factual Background -

Vide an order, the first bail application filed on behalf of the petitioner accused was dismissed as withdrawn but a liberty was given to him to renew his prayer for bail after the statement of Investigating Officer was recorded. Then the statement of Investigating Officer was recorded, and hence, an instant bail application was filed. In 2022, the police team intercepted two vehicles i.e. SWIFT Car and a BOLERO Pickup.

The Bolero pickup was driven by the accused Sunil and the accused Sunny Sharma @ Sanju was sitting by his side. The driver of the Car was Prakash and the other persons sitting in the car were Bhupendra and Bablu. It was alleged that 76 Kg poppy husk was recovered from these vehicles and all three petitioners/accused were arrested for the accusation of having contraband with them without having any license. Hence, they approached the High Court.

The High Court in view of the facts and circumstances of the case noted, “Article 21 of the Constitution Of India provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law” This fundamental right is available to every person, be as a citizen or a foreigner. Needless to say that it is available to an accused also.”

Furthermore, the Court took note of the fact that besides the falsity of allegations; serious question of non-compliance of Sections 42 & 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) have been raised and that the samples which were taken at the spot from the alleged recovered contraband were marked as A,B,C & D and the same were sent to the FSL for detection of Morphine or its derivative.

“Admittedly, no samples were collected or sent in the presence of the Magistrate after making inventory before him. … In this instant matter too, the alleged contraband was seized on 22.12.2022 and no inventory as provided under Section 52-A of NDPS Act was prepared after the seizure of the contraband and no samples drawn in the presence of magistrate were sent for scientific investigation, thus, the requisite compliance of Section 52-A of NDPS Act has not been made”, it said.

The Court, therefore, concluded that it is a fit case for grant of bail to the accused petitioners.

Accordingly, the High Court allowed the applications and granted bail to the accused persons.

Cause Title- Sunil S/o Shri Jeta Ram v. State of Rajasthan (Neutral Citation: 2024:RJ-JD:14890)


Petitioner: Advocates Ashok Khilery, Rajendra Singh Rathore, Vinod Kumar Sharma, and Dilip Kumar Sharma.

Respondent: PP Mukhtiyar Khan

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