Partly allowed

Varingaram v. State of Rajasthan

Rajasthan HC9 Jul 2024CRLBC/26/2024

Case brief

AI extract

What is this about?

Bail sought under Section 439 CrPC in an NDPS case involving recovery of opium and poppy husk from a vehicle owned by the applicant's co-accused brother. The court found false implication could not be ruled out and allowed bail under Section 37 NDPS; the connected cancellation application against the brother's bail was rejected.

What the court decided

AI extract

Varingaram Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JD:27871]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 1195/2024 Varingaram S/o Udaram, Aged About 40 Years, R/o Vada Naya, Post Bhadwi, P.s. Bagoda, Dist. Sanchore, At Present House No. 38 Anand Nagar, Behind The Jayshree Petrol Pump, Kudi Bhagtasni, Jodhpur (Raj.) (Lodged In Central Jail, Jodhpur)

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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 Bail Cancellation Application No.26/2024 Varingaram S/o Udaram, Aged About 40 Years, R/o Vada Naya, Post Bhadwi, Police Station Bagoda, District Sanchore, At Present House No. 38 Anand Nagar, Behind The Jayshree Petrol Pump, Kudi Bhagtasni, Jodhpur (Raj)

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----Petitioner

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Versus

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State Of Rajasthan, Through Pp

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Himmata Ram S/o Uda Ram, Aged About 42 Years, R/o Bhadi, Bagora Police Station, District Sanchore, At Present Resident Of House No.91, Vishnu Nagar, Tanawara, Basni Police Station, District Jodhpur (Raj)

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----Respondents

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For Petitioner(s)	: Mr. Manish Shisodia, Sr. Advocate with Mr. B. RayBishnoi
For Respondent(s)	: Mr. S.K. Bhati, PP Mr. Moti Singh for complainant
Present in person(s)	: Mr. Jitendra Singh Rathore, C.I. SHO P.S. Vivek Vihar, Jodhpur
	Mr. Avdhesh Sandhu, C.I.
	SHO P.S. Karwad,Jodhpur

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JUSTICE DINESH MEHTA

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Order

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S.B. Cri Misc. Bail Appl. No. 1195/2024:-

09/07/2024

[2024:RJ-JD:27871]

[CRLMB-1195/2024]

(2 of 7)

This application for bail has been filed by the applicant under section 439 of the Cr.P.C. in connection with FIR No.315/2023 registered at Police Station Basni, District Jodhpur City, West for the offences under sections 8/15, 18 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

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Mr. Shisodia, learned senior counsel submitted that applicant has been wrongfully enroped at the instance of his brother Himmata Ram, who was having vengeance with him.

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He invited Court’s attention towards the recovery and seizure memo and contended that when the Seizure Officer had intercepted the vehicle RJ-19-UC-6229 (owned by Himmata Ram), he found four packets containing opium and one packet containing poppy husk behind the plastic cover of the driver side gate of the vehicle. He highlighted that such fact is clearly written in the recovery memo.

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He submitted that the recovery memo and information given by said Himmata Ram under Section 27 of the Indian Evidence Act clearly shows that at the first instance, Himmata Ram had withheld every information about the opium by expressing his ignorance about the ownership of the same.

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He argued that it was thereafter, that Himmata Ram (brother of the applicant) conceived any idea to falsely implicate the applicant and concocted the story of planting the opium (2.790 kgs).

[2024:RJ-JD:27871]

[CRLMB-1195/2024]

(3 of 7)

He submitted that looking to the facts that the vehicle was owned by Himmata Ram and that when the vehicle was intercepted, the same was being driven by him and even information which the police had received was that said Himmata Ram is bringing substantial quantity of contraband substance concealed in the cavity of his driver’s side gate of the vehicle, the case portrayed by the Investigating Officer and the allegation of planting the opium in question upon the applicant cannot be sustained.

¶32

He argued that applicant is being prosecuted solely on the basis of statement given by the co-accused from whose conscious possession the contraband substance (opium & poppy husk) were recovered. It was argued by learned senior counsel that if the story projected by the prosecution is accepted, then anyone can be enroped for the offence of dealing in the contraband substance. 8. Highlighting the lapses in the investigation, learned senior counsel argued that the Investigating Officer has attributed 2.790 kgs opium to be planted by the present applicant, while the case against the principal accused Himmata Ram has been clandestinely moderated by recording that small quantity of poppy husk (250 gram) was recovered from his conscious possession, so as to give him easy escape.

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Learned Public Prosecutor vehemently opposed the bail application and submitted that there is enough incriminating evidence pointing towards the involvement of the applicant in planting 2.790 Kgs opium, which can be discerned not only from the applicant’s own interrogatory note but also from the statement

[2024:RJ-JD:27871]

[CRLMB-1195/2024]

(4 of 7)

of Madha Ram who in expressed terms accepted the factum of supplying and planting opium in the vehicle of said Himmata Ram, while conniving with the applicant, as a part of the conspiracy.

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Mr. Moti Singh, learned senior counsel for the complainant submitted that a sum of Rs.50,000/- was paid by the present applicant to the said Madha Ram and the same is evident from the record and thus no indulgence be granted.

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Having heard learned counsel for the applicant and learned public prosecutor, this Court is of prima-facie opinion that maybe the present applicant - Varingaram S/o Udaram is entitled to be granted benefit of bail but the same can be done only when the bail granted to Himmata Ram is cancelled or the order dated 12.01.2024 is recalled.

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According to this Court both the accused (being real brothers) have tried to hoodwink the investigation and are taking advantage of the fact that the investigating officer was misled and made to believe the story of planting the opium.

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In response to the Court’s concern, Mr. Moti Singh, appearing for the co-accused – Himmata Ram argued that the Court is required to take into account the charge-sheet or the prosecution story, in which Investigating Officer has believed the version of Himmata Ram and has filed charge-sheet alleging present applicant (Varingaram) to have planted 2.790 kgs opium and said Himmata Ram of possessing about 250 gram of poppy husk.

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He argued that the bail once granted can be cancelled only on the ground of violation of conditions of bail or it is establish on

[2024:RJ-JD:27871]

[CRLMB-1195/2024]

(5 of 7)

record that while passing the order of granting bail to his client (Himmata Ram), any misstatement was made or any fact was concealed.

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He further argued that while considering the bail application under Section 439 of the Cr.P.C., the Court is required to take into account the facts as alleged by the prosecution and the documents or evidence which have been filed along with the charge-sheet.

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Heard learned counsel for the parties and perused the record.

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So far as the bail application of Varingaram is concerned, this Court finds substance in what has been argued by the learned senior counsel that while preparing the recovery memo, the seizure officer has not bifurcated the contraband substance and clearly reported that all five packets (four packets containing opium and one packet containing poppy husk) were found stored/ concealed in the cavity behind the plastic sheet of the driver side gate of the vehicle.

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The Seizure Officer (Jitendra Singh) and Investigating Officer (Avdhesh Sandhu) present in the Court have now changed the version for the reasons best known to them and stated that one packet was found in the designated place of the gate (where bottles etc. are kept) of the driver seat of the vehicle, whereas four packets of opium were found concealed in cavity of the driver side gate of the vehicle-behind the plastic sheet.

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It will not be out of place to reproduce the relevant part of the seizure memo :-

[2024:RJ-JD:27871]

[CRLMB-1195/2024]

(6 of 7)

Jh fgEerkjke o bldh dCtklqnk cksysjks xkM+h vkjts 19 ;wlh 6229 dh ryk”kh ysuk izkjEHk fd;k x;k rks fgEerkjke dh dCtklqnk cksysjk xkM+h vkjts 19 ;wlh 6229 dh MªkbZoj lhV dh QkVd esa cusa [kkaps esa pkj IykfLVd FkSfy;ksa esa rjy inkFkZ ,oa ,d dkys jax dh FkSyh esa ikmMjuqek inkFkZ Hkjk gqvk feyh] ftu lHkh ikapksa FkSfy;ksa dks :c: ekSrchjku ckgj fudkydj [kksydj pSd fd;k] lwa?kk] ns[kk o ij[kk rks pkj IykfLVd dh FkSfy;ksa esa vQhe ,oa ,d dkys jax dh IykfLVd FkSyh esa filk gqvk MksMk iksLRk gksuk ik;k] Jh fgEerkjke dks IykfLVd dh FkSfy;ksa esa Hkjs rjy inkFkZ o ikmMj ds laca/k esa iwNk x;k rks pkj FkSfy;ksa esa vQhe o ,d dkys jax dh FkSyh eas MksMk iksLr filk gqvk Hkjk gksuk crk;kA ftl ij Jh fgEerkjke dks vQhe o MksMk iksLr viusa dCts esa j[kdj ijhogu djusa ckcr dksbZ oS/k vuqKk i= ckcr iwNk rks ugha gksuk crk;kA

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It is also to be noted that neither at the time of inspection nor at the time of his investigation/interrogation, Himmata Ram did ever say that he was not aware about the presence of 2.790 Kgs opium. It is only one day after his arrest i.e. on 13.11.2024, said Himmata Ram came with a plea that he is suspicious that four packets of opium might have been planted by his brother (Varingaram) on account of having previous animosity.

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Having regard to what has been noticed above, this Court is of the view that since the contraband substance was recovered from the vehicle owned by Himmata Ram and the Police had specific information of his vehicle carrying contraband substance in the cavity of driver side gate and also because said Himmata Ram did not plead any ignorance about possession of 2.790 kgs opium at first available opportunity, the stand of the applicant that he is being falsely implicated and has been fixed by the Police with the connivance of his brother Himmata Ram, cannot be ruled out.

[CRLMB-1195/2024]

[2024:RJ-JD:27871]

(7 of 7)

This Court has, therefore, a reasonable belief that the applicant was not involved in dealing with the contraband substances, particularly when no recovery was made from his conscious possession.

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The mandate of section 37 of the NDPS Act is, therefore, clearly met in the instant case, for which the bail application of the present applicant deserves to be allowed.

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The bail application filed under Section 439 of the Cr.P.C. is allowed. The applicant -Varingaram S/o Udaram arrested in connection with FIR No.315/2023 registered at Police Station Basni, District Jodhpur City, West shall be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/- and two sureties of Rs.50,000/- each to the satisfaction of the trial Court. 25. Applicant shall be required to appear before that Court on all dates of hearing and as and when called upon to do so.

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S.B. Cri. Bail Cancellation Appl.No. 26/2024 :-

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In view of the discussion foregoing, SB Criminal Bail Cancellation application No.26/2024 filed by the Varingaram seeking cancellation of bail granted to Himmata Ram is rejected.

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(DINESH MEHTA),J

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369-370-Arun/-

Varingaram v. State of Rajasthan

Case brief

What is this about?

What the court decided

Varingaram v. State of Rajasthan

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

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