Allowed

Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi v. State of Rajasthan

Rajasthan HC2 May 2024CRLMB/2442/2024

Case brief

AI extract

What is this about?

Bail application allowed in NDPS case where contraband was not recovered from petitioner's conscious possession and prosecution failed to show apprehension of tampering. Parliamentary restrictions under Section 37 NDPS Act held not attracted. Registrar directed to review another order.

What did the court decide?

Petitioner to be released on bond of Rs. 1,00,000 and two sureties of Rs. 50,000 each.

Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi Vs… — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JD:19152]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 2442/2024

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Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi S/o Ramjan Khan, Aged About 35 Years, R/o Bengati Kallan, Ps Phalodi, Dist Phalodi, 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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For Petitioner(s)	: Mr. Bharat Devasee
For Respondent(s)	: Mr. Mukhtiyar Khan,PP

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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02/05/2024

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This 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.218/2023, registered at Police Station Phalodi, Jodhpur Rural, for the offences under Sections 8/21, 25 and 29 of NDPS Act.

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Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

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Learned counsel for the petitioner submitted that as per the prosecution, on 19.05.2023, the police team of Police Station Phalodi, in pursuance of a secret information, intercepted a white coloured Creta car bearing registration No. GJ-16-CB-2514 near Baiganti Kala. The driver of the offending vehicle on seeing the police team, fled away from the place of incident. Upon search of the offending vehicle, a significant quantity of contraband

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(heroine) weighing 5.420 kgs. was recovered from the offending vehicle.

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Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the present case.

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Learned counsel submitted that the contraband was not recovered from the conscious possession of the present petitioner and the petitioner was not present at the place of incident. Learned counsel submitted that the petitioner has been implicated in the present case solely on the basis of recovery of a mobile phone from the offending vehicle, which allegedly belongs to the present petitioner.

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Learned counsel further submitted that co-accused Barkatullah @ Barkat (S.B. Criminal Miscellaneous Bail Application No. 9427/2023) has already been enlarged on bail by this Court vide order dated 09.01.2024 and the other co-accused persons namely Bohar Singh @ Vikramjeet Singh and Osama S/o Alias Khan have also been enlarged on bail by the competent criminal court vide orders dated 15.04.2024. Learned counsel submitted that the case of the present petitioner is not worse than the case of above named co-accused persons who have already been enlarged on bail.

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Lastly, learned counsel submitted that the petitioner does not have any criminal antecedents; the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

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Per contra, learned Public Prosecutor has vehemently opposed the bail application. However, he was not in a position to

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refute the fact that the above named co-accused persons have already been enlarged on bail.

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Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the contraband greater than commercial quantity was not recovered from the conscious possession of the present petitioner; the petitioner does not have criminal antecedents. This Court also prima facie finds that the prosecution has not shown any apprehension of the petitioner tampering with the evidence; getting involved in any other case of similar nature or fleeing away from justice in case, he is enlarged on bail by this Court. Thus, without expressing any opinion on merits/demerits of the case, this Court is of the view that the embargo contained in Section 37 of NDPS Act is not attracted in the present case and thus, the petitioner deserves indulgence of bail in the present case.

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Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi S/o Ramjan Khan arrested in connection with F.I.R. No.218/2023, registered at Police Station Phalodi, District Jodhpur Rural, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.

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At this stage, it is to be noticed that co-accused Osama S/o Elias Khan has been enlarged on bail by the Additional Sessions

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Judge, Phalodi (Special Judge, NDPS Act Cases, Phalodi) vide order dated 15.04.2024. A perusal of the order dated 15.04.2024 indicates that co-accused- Osama S/o Elias Khan is already facing trial in two cases relating to offence under Section 8/21 of the NDPS Act. It is a settled law that no person accused of an offence under NDPS Act shall be released on bail unless twin conditions contained in Section 37 of the NDPS Act are duly satisfied. The order dated 15.04.2024 does not indicate as to how, in spite of the accused- Osama S/o Elias Khan having criminal antecedents, the learned Court below was of the opinion that twin conditions of Section 37 of NDPS Act are fulfilled in the case. The order dated 15.04.2024 thus, suffers from non-application of mind.

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In view of the aforesaid, the Registrar (Judicial) Rajasthan High Court, Jodhpur is directed to place a copy of this order before Hon’ble The Guardian Judge of Jodhpur District for perusal.

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(KULDEEP MATHUR),J

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9-himanshu/-

Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi v. State of Rajasthan

Case brief

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Mohammad Sharif @ Mohammad Shafa @ Mohammad Shafi v. State of Rajasthan

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