The High Court allowed the fourth bail application of the accused facing NDPS charges. Relying on the lack of recovery of contraband and failure of the prosecution witness to identify the accused at the scene, the court exercised discretion under Section 439 Cr.P.C.
Release on bail with a personal bond of Rs. 1,00,000 and two surety bonds of Rs. 50,000 each.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc. Bail No. 8137/2018
Ramesh Godara S/o Late Bhinya Ram, aged about 24 years, B/c Bishnoi, R/o Ravar Ki Dhani, Tehsil Bilara, Dist. Jodhpur. (At present lodged in Central Jail, Jodhpur)
----Petitioner
Versus
State of Rajasthan through PP
----Respondent
For Petitioner(s) For Respondent(s)
: Mr. Kailash Khilery : Mr. Rajesh Bhati, PP.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
04/09/2018
Accused-petitioner facing trial for offence under Section 8/15 of the NDPS Act in Sessions Case No.19/2018, pending before Special Judge, NDPS Cases, Jodhpur, has laid this fourth bail application under Section 439 Cr.P.C. Charges slapped against the petitioner are founded on FIR No.353/2016, registered at Police Station Bilara, District Jodhpur.
First bail application laid on behalf of petitioner was dismissed as not pressed on 13th of November, 2017 followed by second on 9th of May, 2018 and third on 18th of July, 2018.
Arguing on the fourth bail application, it is submitted by learned counsel that after rejection of third bail application, there is substantial change in the circumstances. Elaborating his submission in this behalf, learned counsel would contend that in fact prosecution case is that petitioner with his other accomplices fled away from the scene of occurrence and, at that point of time,
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he was seen and identified by Constable Hemant Rajpurohit, but, during his deposition before the Court, he has very candidly stated that he did not identify petitioner at the scene of occurrence. Learned counsel further submits that solitary evidence to connect the petitioner with the alleged offence is statement of P.W.3 Hemant Rajpurohit and a cumulative reading of his statements makes it abundantly clear that his presence at the scene of occurrence is seriously doubtful. Learned counsel has also contended that there is no recovery of the contraband from conscious possession of the petitioner. Lastly, learned counsel submits that there is no other criminal antecedent of the petitioner and completion of trial in the matter is likely to take considerable time. With these arguments, learned counsel has contended that fourth bail application of the petitioner may be allowed and he may be released on bail.
Per contra, learned Public Prosecutor has opposed the bail application. It is also submitted by learned Public Prosecutor that the quantum of contraband recovered in the matter is umpteen higher than commercial quantity, therefore, Section 37 of the NDPS Act is clearly attracted.
I have bestowed my consideration to the arguments advanced at Bar and perused the statement of P.W.3.
Having regard to the facts and circumstances of the case and taking into account a very vital fact that there is no recovery of contraband from the conscious possession of petitioner and he has not been identified by P.W.3, I feel persuaded to tone down the rigor of Section 37 of the NDPS Act.
Accordingly, by relying on material change in the circumstance, this fourth bail application under Section 439 Cr.P.C.
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[CRLMB-8137/2018]
is allowed and it is ordered that accused-petitioner, Ramesh Godara S/o Late Shri Bhinya Ram, arrested in connection with F.I.R. No.353/2016, Police Station Bilara, District Jodhpur, may be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- with two surety bonds of Rs.50,000/- each 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
a.asopa/-271
1 issue framed by the court
Whether the accused should be released on bail despite the strict provisions of Section 37 of the NDPS Act due to material changes in circumstances.
2 provisions across 2 enactments
Ramesh Godara
State of Rajasthan
P.K. Lohra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
