Second bail application under Section 439 Cr.P.C. by an accused arrested with 160 kg poppy husk and a country-made pistol. The court found compliance arguments unconvincing, held the Section 37 twin conditions unsatisfied, and rejected bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2024:RJ-JD:22559]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Miscellaneous II Bail Application No. 1400/2024
Bishnaram @ Vishnu S/o Patram, Aged About 21 Years, R/o Jambha Ki Dhani, P.s. Jambha Dist. Jodhpur (Raj.). (Lodged In Central Jail, Bikaner).
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
| For Petitioner(s) | : Mr. |
Mangi Lal Bishnoi |
|---|---|---|
| For Respondent(s) | : Mr. |
Vikram Sharma,PP |
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
20/05/2024
This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.77/2022, registered at Police Station Chattargarh, District Bikaner, for the offences under Sections 8/15 and 29 of NDPS Act and 3/25(1-B)(a) of Arms Act.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
As per the prosecution’s story, at about 10:00 pm., on 11.06.2022, Harpal Singh, SHO Police Station Dantor, having additional charge of SHO, Police Station Chhatargarh, acting upon the information supplied by an informant reached along with his team near K.M. Minor, Indra Gandhi Canal and spotted one Scorpio vehicle bearing registration No. RJ-43-UA-0594. On seeing the police party, one of the persons sitting near driver’s seat of the
[2024:RJ-JD:22559]
[CRLMB-1400/2024]
(2 of 4)
vehicle ran away from the place of incident. The person sitting on the wheel of the vehicle disclosed his name as Bishnaram @ Vishnu i.e. the present petitioner. The person who ran away from the place of incident was apprehended by the police team later on. The vehicle was searched after following the necessary procedure provided under NDPS Act and contraband (poppy husk/straw) weighing 160 kgs. was recovered from 8 sacks/bags, each containing 20 kgs. of poppy husk/straw. One country made pistol and two live cartridges were also recovered during the personal search of the present petitioner, from the right pocket of his trousers.
Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the present case. Learned counsel submitted that the statements of the Seizure OfficerHarpal Singh (PW.1) have already been recorded before the competent criminal court on 15.01.2024. Drawing attention of the Court towards the statements of the Seizure Officer, learned counsel submitted that in the present case, due compliance of the mandatory provisions of NDPS Act have not been made by the Seizure Officer. The Seizure Officer was not even holding the charge for the post of SHO, Police Station Chhatargarh and therefore, he was not competent to undertake the recovery proceedings.
Learned counsel further submitted that petitioner was only a driver of the offending vehicle and he was not aware about the alleged contraband being loaded in the aforesaid vehicle by its owner.
[2024:RJ-JD:22559]
[CRLMB-1400/2024]
(3 of 4)
Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody since 11.06.2022 and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.
Per Contra, Learned Public Prosecutor has vehemently opposed the bail application.
Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that in the present case, a significant quantity of contraband and one country made pistol and two live cartridges have been recovered by the police party and therefore, this Court is not inclined to accept the argument of the learned counsel for the petitioner that the petitioner was not aware about the contents of the consignment being carried in the aforesaid vehicle; the challan papers and statements of Seizure Officer (PW.1) recorded before criminal competent court clearly show that at the time of recovery, Seizure Officer was having an additional charge of the post of SHO, Police Station Chhatargarh. It is a settled law that an accused of NDPS offence cannot claim an absolute right to bail solely on the basis of the non-compliance of the provisions of NDPS Act. This is for the reason that non-compliance of the provisions depend on the specific circumstances and evidence available in each case. Therefore, it is within the sole domain of the learned trial Court to access the same during the course of trial.
In the present case, the provision contained under Section 37 of NDPS Act which provides inter-alia that no person accused of an offence involving contraband seized in/above commercial
[2024:RJ-JD:22559]
[CRLMB-1400/2024]
(4 of 4)
quantity shall be released on bail unless the twin conditions are duly satisfied namely, firstly, the Public Prosecutor has been given an opportunity to oppose the bail application; and secondly, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail, are fulfilled. Thus, in view of the aforesaid discussion, this Court is not inclined to enlarge the petitioner on bail.
Consequently, the second bail application under Section 439 Cr.P.C. is rejected.
(KULDEEP MATHUR),J
41-himanshu/-
1 issue framed by the court
Whether the petitioner, accused in a commercial-quantity NDPS offence, satisfied the twin conditions under Section 37 NDPS Act for release on bail.
4 provisions across 3 enactments
Bishnaram @ Vishnu
State of Rajasthan, Through PP
Kuldeep Mathur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
