Allowed

Unkar Lal @ Onkar v. State

Rajasthan HC4 Oct 2021CRLMB/10274/2021

Case brief

AI extract

What is this about?

The High Court allowed four bail applications filed under Section 439 Cr.P.C. by accused individuals in cerebral narcotics cases. The court held that since the charge-sheet had not classified recovered leaves and seeds as 'Ganja' under the NDPS Act, the bail provisions applicable to larger quantities under Section 37 were not satisfied. Consequently, bail was granted subject to furnishing a person

What did the court decide?

Release of all four petitioners on bail upon furnishing a personal bond of Rs. 1,00,000/- and two surety bonds of Rs. 50,000/- each.

Unkar Lal @ Onkar Vs State — Narcotics (NDPS) | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR.

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...

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S.B. Criminal Misc. Bail Application No. 12894/2021

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Bhagchand S/o Dhanna Khatik, Aged About 25 Years, R/o Gadri Khera Thala, P.S. Raipur, Dist. Bhilwara.

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(Presently Lodged At Dist. Jail, Chittorgarh).

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----Petitioner

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Versus

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State of Rajasthan through PP

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----Respondent

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Connected With

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S.B. Criminal Misc. Bail Application No. 10274/2021

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Unkar Lal @ Onkar S/o Sh. Heera Lal Gurjar, Aged About 29 Years, R/o Mahastiyon Ki Maadari, P.S. Kankroli, Dist. Rajsamand

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(Raj.).

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(Presently Lodged In District Jail, Chittorgarh).

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----Petitioner

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Versus

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State of Rajasthan through PP

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----Respondent

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S.B. Criminal Misc. Bail Application No. 11245/2021

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Shiv Lal S/o Kishan Lal Lohar, Aged About 32 Years, R/o Potala,

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P.S. Gangapur, Dist. Bhilwara.

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(At Present Lodged At District Jail, Chittorgarh).

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----Petitioner

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Versus

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State of Rajasthan through PP

----Respondent

(2 of 5)

[CRLMB-12894/2021]

S.B. Criminal Misc. Bail Application No. 11246/2021

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Mukesh Kumar S/o Shambhu Lal Lohar, Aged About 23 Years,

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R/o Sindhey Aparment, Mary Adganv Link Road, Rajmata Mangal Office, Gayatri Nagar, P.S. Mehsarul, Dist. Nashik (Maharashtra) At Present Residing At Sahada, P.S. Gangapur, Dist. Bhilwara. (At Present Lodged At District Jail, Chittorgarh).

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----Petitioner

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Versus

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State of Rajasthan through PP

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----Respondent

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For Petitioner(s)	: Mr. Umesh Kant Vyas.
	Mr. Jagatveer Singh Deora.
	Mr. Ravinder Kumar Charan.
For Respondent(s)	: Mr. Arun Kumar,PP.

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HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

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Order

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04/10/2021

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The present bail applications have been filed under Section 439 Cr.P.C. on behalf of the petitioners, who are in judicial custody in connection with F.I.R. No.536/2020, Police Station Nimbahera, District Chittorgarh, registered for the offences punishable under Sections 8/20 & 8/29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

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Heard learned counsel for the petitioners as well as learned Public Prosecutor. Perused the material available on record.

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Learned counsel for the petitioners stated that as per definition of Ganja mentioned in Section 2 of the NDPS Act and in the present case, as per page number 12 internal page number 4 of the First Information Report (FIR), leaves and seeds were also

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(3 of 5) [CRLMB-12894/2021]

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recovered in 50 plastic bags which were not come within the definition of Ganja and this quantity would not be related from the recovered contraband; that the charge-sheet has been filed in regard to accused persons, namely, Bhagchand (Bail No. 12894/2021), Shivlal (Bail No. 11245/2021) and Mukesh Kumar (Bail No. 11246/2021); and that trial will take time, therefore, benefit of bail may be granted to the accused-petitioners. Learned counsel for the petitioners has referred to and relied upon an order passed by the co-ordinate Bench of this Court whereby, benefit of bail has been granted by observing that, on a plain reading of the definition as provided in Section 2(g) of the N.D.P.S. Act, it is clear that these three parts of the plant do not conform to the description of Ganja.

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Per contra, learned Public Prosecutor has opposed the bail application of the accused-petitioners and stated that this the stage of considering the prayer of the accused for granting the benefit of bail and the arguments as advanced on behalf of the learned counsel for the accused-petitioners cannot be considered at this stage of bail and the same can be raised at the time of framing of charges before the learned Trial Court. However, learned Public Prosecutor stated that the charge-sheet in regard to accused Onkar Lal @ Onkar (Bail No. 10274/2021) has not been filed. Learned Public Prosecutor further stated that in the present case, total 104 kgs. 750 gram including plastic bags were recovered from the accused-petitioners, therefore, looking to the huge quantity of contraband recovered in the present case, benefit of bail may not be granted to the accused-petitioners. Learned Public Prosecutor also stated that the FSL Report is awaited in the

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(4 of 5)

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[CRLMB-12894/2021]

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matter. He further stated that the restrictions as contained under Section 37 of the NDPS Act are clearly attracted in this case.

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In reply, learned counsel for the petitioners stated that as per the prosecution, the accused Unkar Lal @ Onkar in regard to which, charge-sheet is yet to be filed, was the proposed buyer of the contraband in question.

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For ready reference, the definition as provided in Section 2 of the NDPS Act is reproduced herein as under:-

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“ 2. Definitions .- In this Act, unless the context

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otherwise requires,-

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(iii) “cannabis (hemp) means-

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(b) ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and”

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Having regard to the facts and circumstances of the case, particularly looking to the observations as made by the coordinate Bench of this Court in the order dated 15.05.2017 (S.B. Criminal Misc. Bail No. 3904/2017 titled as “Ramesh Kumar S/o Shri Jagaram Vs. State of Rajasthan), as referred to by the learned counsel for the petitioners and keeping in mind the definition provided in Section 2 of the NDPS Act; that till the filing of the charge-sheet, it was not specified by the prosecution that the leaves and seeds cannot be termed as Ganja; that benefit of bail cannot be declined to the accused-petitioners in absence of classification of the contraband recovered in this case, even when the charge-sheet has been filed by the prosecution; that this Court is of the opinion that the conditions of Section 37 of the NDPS Act

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(5 of 5)

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[CRLMB-12894/2021]

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are satisfied in this case; and that trial will take sufficiently long time, therefore, without expressing any opinion on the merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioners deserve to be accepted.

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Consequently, all the four bail applications are allowed. It is ordered that the petitioners, (1) Bhagchand S/o Dhanna Khatik (Bail No. 12894/2021), (2) Unkar Lal @ Onkar S/o Heera Lal Gurjar (Bail No. 10274/2021), (3) Shiv Lal S/o Kishan Lal Lohar (Bail No. 11245/2021) and (4) Mukesh Kumar S/o Shambhu Lal Lohar (Bail No. 11246/2021), all the four arrested in connection with F.I.R. No.536/2020, Police Station Nimbahera, District Chittorgarh, shall be released on bail, if not wanted in any other case, provided each of them furnishes a personal bond of Rs. 1,00,000/- (Rupees One Lac only) with two sound and solvent surety bonds of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the 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.

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(DEVENDRA KACHHAWAHA),J

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19-22-Mohan/-

Unkar Lal @ Onkar v. State

Case brief

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Unkar Lal @ Onkar v. State

Case brief

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