Dismissed

Pukharaj v. State of Rajasthan

Rajasthan HC5 Jan 2024CRLMB/2433/2023

Case brief

AI extract

What is this about?

In a criminal miscellaneous bail application under Section 439 CrPC for offences under the NDPS Act, the High Court of Rajasthan at Jodhpur rejected the petitioner's claim that the seizing officer lacked authority. The court held that Section 42 compliance is for the trial court and, due to the quantity of contraband, granted bail is not permissible under Section 37 NDPS Act.

What did the court decide?

The instant bail application was dismissed.

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

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[2023:RJ-JD:45034]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous 2^nd Bail Application No. 2433/2023

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Pukharaj S/o Lumba Ram Jat, Aged About 30 Years, R/o Kagal, Police Station Pipar City, District Jodhpur. (At Present 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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For Petitioner(s)	: Mr.	G. R. Poonia Sr. Adv. assisted by
	Mr.	Ramdeen Choudhary
For Respondent(s)	: Mr.	S. S. Rajpurohit, PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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RESERVED ON	:::	25.08.2023
PRONOUNCED ON	:::	05.01.2024

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BY THE COURT:-

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The instant criminal miscellaneous bail application under section 439 CrPC has been filed by the petitioner- Pukharaj, who is in custody in connection with FIR No.205/2021 registered at P.S. Nimbahera, Chittorgarh for the offences under Sections 8/15 and 29 of NDPS Act.

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It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. He submits that the seizing officer, while undertaking proceedings for search and seizure, was not posted as S.H.O. of the concerned police station, thus, Section 42 has not been complied with. He further submits that the Seizing Officer was neither posted as SHO nor any charge of the

[2023:RJ-JD:45034]

[CRLMB-2433/2023]

(2 of 3)

concerned Police Station was given to him and it is a good case for grant of bail. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

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Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 4. Have considered the submissions made by both the parties and have perused the material available on record. It is revealing from the record that the person who conducted the search and seizure was the lawful authority competent to do so and the seizure is in conformance with the provision of Section 42 of NDPS Act. Firstly, Narulal, the seizing officer who was examined as PW-3 in the trial stated in his on-oath statement that he was having the charge of the police station Nimbahera and he received information from Suryaveer Singh DySP, CIDCB regarding suspicion of illegal transportation of contraband through the truck in question which is seized in this matter. There is not even a suggestion in the five pages long examination-in-chief that he was not posted as SHO. There is a document on record which is Roznamcha diary wherein an entry dated 23.05.2021 has been made at 04:51 a.m. as per which the seizing officer Narulal was the in-charge of the police station Nimbahera. Moreover, during the course of trial, it would be deleterious or prejudicial to the case of the prosecution if it is held that the seizing officer was not a competent authority to conduct search and seizure.

(3 of 3)

[2023:RJ-JD:45034]

[CRLMB-2433/2023]

Secondly, since the recovery pertains to a huge quantity of the contraband, the same is hit by the fetter contained under Section 37 of NDPS Act and at this stage, this court is inclined towards the view that there are no circumstances from which a presumption averse to his guilt can be drawn and from which it can be inferred that he will not commit the offence if released on bail. Therefore, bail cannot be granted to the accused petitioner on this ground as the law is very clear on this point that until the twin conditions prescribed under Section 37 of NDPS Act are fulfilled, bail should not be granted.

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This court is of the view that final adjudication of the issue of compliance with Section 42 of NDPS Act should be left to the wisdom of the learned Trial Court; had it been a case of appeal, this court would have surely interfered but seeing that the trial is underway, it is neither desirable nor prudent to interject, however, in view of the discussion made above, this court does not find it a fit case to enlarge the petitioner on bail.

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Accordingly, the instant bail application is dismissed.

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(FARJAND ALI),J

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53-Mamta/-

Pukharaj v. State of Rajasthan

Case brief

What is this about?

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Pukharaj v. State of Rajasthan

Case brief

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