Deva Ram vs State Of Rajasthan

Rajendra Prakash Soni, J

The present bail application filed under Section 439 of the Criminal Procedure of Code is for grant of regular bail. The accused was arrested on 30.03.2021 and has, since then, in custody in connection with crime registered pursuant to First Information Report No.46/2021 P.S. Dangiawas, District Jodhpur in respect of offence(s) punishable under Section(s) 8/15 of the Narcotic Drugs and Psychotropic Substances Act (for short "the Act").

I have appreciated the submissions advanced by the learned counsel and learned Public Prosecutor and have gone through the evidence available on record.

I may briefly refer to the relevant aspects of the case of prosecution as emerging from the FIR. As per the FIR, an information was received that petitioner Devaram and co-accused Ashok Sau were indulged in illicit trade and transportation of contraband drugs and they were about to transport a consignment of poppy straw on kud-Ramnagar road by a motor-cycle. The information was taken down in writing and raid party under the leadership of SHO Kanhaiyalal was formed. It is alleged that on 30.03.2021 at about 10:55 a.m., the police party reached Hingonia to Salwat where a car bearing registration No. RJ-14-UH-1881 was intercepted. On inquiry, the person sitting on the driving seat disclosed his name to be Devaram.

After completing due formalities, the police team proceeded to search the said vehicle which resulted into recovery of 293.750 Kgms poppy straw. A mobile phone was also found in the car about which Devaram narrated that Ashok Sau has forgotten his phone in the car in a hurry. After investigation, the petitioner has been charge-sheeted. He is in custody since last 27 months and has approached this Court by way of bail application preferred under Section 439 of the Cr.P.C.

During the trial, statement of Seizure Officer PW-1 Kanhaiyalal has been recorded.

Learned counsel for the petitioner vehemently urged that there is no evidence worth credence on record to connect the petitioner with the alleged crime. He contends that statement of Seizure Officer has already been recorded during the trial. Alleged 293.750 kgms of poppy straw was recovered and samples were taken out but the testimony of Seizure Officer creates serious doubts upon recovery proceedings as well as sampling, therefore, the FSL report based on such sampling cannot be read in evidence against the petitioner. It is further argued that in the statement of Seizure Officer, it has come on record that mandatory provisions contained in Section(s) 42 and 50 of the Act have not been complied with during the alleged recovery.

It is further argued that the process of taking out samples of poppy straw from all the 13 bags recovered, sealing thereof after taking out samples, the weight contained in bags, the remaining weight contained in bags deposited with Malkhana and weight of samples sent to the FSL is very much interesting and prima facie doubtful, which goes to the root of the case. It is further argued that entire process of sampling has drastically prejudiced the petitioner.

As per the learned counsel for the petitioner, the contraband was found in total 13 bags as per following weights:-

No. of bags

Weights

1

21.200

2

21.200

3

24.000

4

21.200

5

21.100

6

23.100

7

24.100

8

22.100

9

21.100

10

21.150

11

21.100

12

21.100

13

31.300

Total

293.750

It is the admitted case of the prosecution that one sample of 500 gms and another sample of 500 gms i.e. total 01 kg of poppy straw was drawn from each bag. Thus, out of total 293.750 kgms poppy straw, total 13 kg should have been reduced from all the bags and only 280.750 kgms poppy straw could have been stored in the Malkhana. It is further argued that the charge-sheet goes on to reveal that entire recovered 293.750 kgms poppy straw has been deposited in the Malkhana, as if, any sample was not taken from it. Each bag of poppy straw deposited in the Malkhana even bears the same weight as it was at the time of seizure. Then, the question arises from which contraband 26 samples weighing 13 kgms were taken out. In this light, he further argued that the FSL report cannot be read against the petitioner as it is not proved to be in the context of the contraband recovered from the accused. On the basis of this fact alone, the accused has available to him, substantial ground so as to challenge the prosecution case.

It is further argued that the statement of Seizure Officer has already been recorded and trial of the case would take its sufficient time to complete. The co-accused Ashok and Manohar Lal have already been enlarged on bail by a co-ordinate Bench of this Court vide order dated 27. 03.2023. The petitioner, who is in custody since 30.03.2021 too deserves the same indulgence.

Per contra, learned Public Prosecutor has vehemently opposed the submissions advanced by learned counsel for the petitioner and contended that there is ample material available on record to connect the petitioner with the huge quantity of poppy straw recovered in the case at hand. He, thus, craves rejection of the petitioner’s bail application urging that the restrictions of Section 37 of the Act shall operate against the petitioner.

Having considered the arguments addressed by learned counsel for the parties and particularly the weight of contraband deposited and non-compliance of mandatory provisions of Act, this Court is of a prima facie view that the conditions of Section 37 of the NDPS Act are duly satisfied qua the petitioner. The co-accused Ashok and Manohar Lal have already been enlarged on bail.

In this background and having regard to the entirety of the facts and circumstances of the case, I am inclined to grant indulgence of bail to the petitioner. Without commenting any further on the merits of the case and the fact that the trial is likely to take its own consideration time; that no useful purpose would be served by keeping the petitioner in detention for an indefinite period.

Keeping in view the totality of the facts and circumstances of the case, present bail application is allowed and the petitioner Deva Ram S/o Sh. Bhikha Ram is ordered to be released on bail subject to his furnishing bail/surety bonds of sufficient amount to the satisfaction of trial court in connection with the F.I.R. No.46/2021 P.S. Dangiawas, District Jodhpur with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future.