Second bail petition allowed challenging Section 37 NDPS Act applicability after major infirmities in search and seizure process under the Act are noticed before Special Judge NDPS cases at Chittorgarh.
Petitioner released on bail with personal bond of Rs. 1,00,000/- and two surety bonds of like amount including one local surety.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc. Bail No. 6922/2018
Raju @ Rajendra @ Rajkumar S/o Jagdish Dhakad, aged about 29 Years, R/o Kanjara, P.S. Manasa, Dist. Neemuch (M.P.). (At Present Lodged At District Jail, Chittorgarh)
----Petitioner
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) : Mr. R.K. Charan. For Respondent(s) : Mr. Arjun Singh, PP.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
06/12/2018
Accused-petitioner has laid this second bail application while facing trial for offence under Sections 8 read with Section 15, 25 and 29 of the NDPS Act in Sessions Case No.47/2016 pending before Special Judge, NDPS Cases No.1, Chittorgarh. The said case is founded on FIR No.70/2016 registered at Police Station Begu, District Chittorgarh.
First bail application on behalf of the petitioner was dismissed as not pressed on 28th of August, 2017.
Arguing on the second bail application, it is submitted by learned counsel Mr. R.K. Charan that after rejection of first bail application, there is substantial change in the circumstances. It is argued by learned counsel that in the instant case SubInspector, who was not posted SHO of the concerned Police
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[CRLMB-6922/2018]
Station carried out the search and seizure, whereas on the crucial day SHO of the concerned Police Station was Bhawani Singh. Learned counsel has further submitted that this factual aspect is clearly discernible from the statement of P.W. 2 Bhawani Singh himself and the statement of P.W.7 Shankar Lal. While referring to the statements of Shankar Lal recorded during cross-examination, it is submitted by Mr. Charan that he has very candidly admitted that posted SHO of the concerned Police Station was Bhawani Singh and he was subordinate to him. Learned counsel has further submitted that during search and seizure though petitioner was subjected to personal search but Section 50 of the NDPS Act was flagrantly violated inasmuch as third option was also furnished besides options of gazetted officer and the magistrate. While relying on these patent infirmities, during investigation, which have come to fore during trial, learned counsel would contend that in that background it would not be appropriate to invoke rigor of Section 37 of the NDPS Act while considering bail plea of the petitioner. It is also submitted that there is no other criminal antecedent of the petitioner. It is further submitted by learned counsel that these are the material change in the circumstances which require favourable consideration of bail plea of the petitioner.
Per contra, learned Public Prosecutor has vehemently opposed the bail application. It is submitted by learned Public Prosecutor that looking to the recovery of huge quantity of contraband which is umpteen times higher than the commercial quantity, Section 37 of the NDPS is clearly attracted.
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[CRLMB-6922/2018]
I have bestowed my consideration to the arguments advanced at Bar and has noticed the arguments concerning violation of Sections 42 and 50 of the NDPS Act canvassed by learned counsel for the petitioner more particularly in the backdrop of evidence which has come to fore during trial.
Having regard to the facts and circumstances, while refraining to make any comment on merits of the case, I feel persuaded to tone down Section 37 of the Act for favourable disposition of bail application of the petitioner.
Consequently, this second bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Raju @ Rajendra @ Rajkumar S/o Jagdish Dhakad, arrested in connection with FIR No.70/2016, registered at Police Station Begu, District Chittorgarh, may be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- with two surety bonds of like amount, including one local surety, to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.
(P.K. LOHRA),J
109-a.asopa/-
3 issues framed by the court
Whether bail can be granted under Section 439 Cr.P.C. despite the attraction of Section 37 NDPS Act due to alleged procedural infirmities in search and seizure.
Whether the flagrant violation of Section 50 NDPS Act warrants toning down the rigorous provisions of Section 37 NDPS Act considering bail plea.
Whether there is a substantial change in circumstances to reconsider the earlier dismissal of the bail application.
3 provisions across 2 enactments
Raju @ Rajendra @ Rajkumar S/o Jagdish Dhakad
State of Rajasthan through PP
P. K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
