Ganshyam vs State Of Rajasthan

Dr. Pushpendra Singh Bhati, J

This criminal misc. third bail application under Section 439 Cr.P.C. has been preferred claiming the following relief:

“It is, therefore, most respectfully and humbly prayed that this bail application may kindly be allowed and the petitioner may kindly be ordered to be release on bail.”

The petitioner has been arrested in connection with FIR No.122/2020 registered at Police Station Padukallan, District Merta for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’).

The bone of contention in the present case is the recovery of contraband (poppy straw) weighing 288 kgs 230 gms from a truck bearing registration No.MH 18 BG 2289, being driven by present petitioner Ghanshyam, accompanied by co-accused Suresh and one Bhura Ram; the said Bhura Ram managed to escape from the spot. During the course of investigation, one Ramniwas was also implicated in this case, on the basis of information of the co-accused.

The first bail application of the petitioner bearing S.B. Criminal Miscellaneous Bail Application No. 8648/2020, was dismissed as not pressed, by this Court vide order dated 05.11.2020, with liberty to file fresh bail application, after filing of the charge-sheet. The second bail application of the petitioner, bearing S.B. Criminal Misc. II Bail Application No.1364/2021 was also dismissed, as not pressed, by this Court vide order dated 17.03.2021, with liberty to file fresh bail application, after recording of the statement of the seizure officer.

Learned counsel for the petitioner submitted that the charge-sheet has been filed against the petitioner for the offence under Section 8/15 of the NDPS Act, and the statement of the concerned seizure officer has also been recorded, wherein nothing has been deposed, which could, in any way, connect the present petitioner with the alleged crime in question.

5.1. Learned counsel further submitted that in the present case, the investigating agency has not duly complied with the provisions of Section 42, 50 & 55 of the NDPS Act, and therefore, on count of such non-compliance of the provisions of law, the petitioner is entitled for grant of bail.

5.2. Learned counsel also submitted that co-accused Ramniwas, who was taken into custody, in pursuance of the same FIR, had already been granted indulgence of bail by a Coordinate Bench of this Hon’ble Court vide order dated 02.09.2021 passed in S.B. Criminal Misc. Bail Application No.7155/2021, and the case of the present petitioner is not different from that of the said co-accused. 5.3. Learned counsel also submitted that no recovery is to be made from the present petitioner, charge-sheet has already been filed and the petitioner is in custody since the date of arrest i.e. 04.07.2020, and that, he has been falsely implicated in this case, on the sole ground of his being the driver of the vehicle (truck) in question, and therefore, the petitioner is entitled for grant of bail.

Learned Public Prosecutor however, opposed the aforesaid submissions made on behalf of the petitioner, while submitting that the contraband in question, as recovered in the present case, is quite more than the commercial quantity.

6.1. As regards, the grant of bail to co-accused Ramniwas, learned Public Prosecutor submits that while grant him bail, the Coordinate Bench of this Hon’ble Court categorically noticed that the said co-accused was implicated in this case primarily on the confessional statement/interrogation note of the co-accused persons, admissibility whereof is seriously questionable.

6.1.1. It was also submitted that the contraband was not recovered from the possession of co-accused Ramniwas, and that, as against him, the case was under Section 8/29 of the NDPS Act; whereas, the case as against the present petitioner is under Section 8/15 of the NDPS Act. Thus, as per learned Public Prosecutor, the case of the present petitioner is clearly distinguishable from that of co-accused Ramniwas, who has been enlarged on bail. Hence, as per learned Public Prosecutor, the present petitioner does not deserve to be enlarged on bail.

Heard learned counsel for the parties as well as perused the record of the case.

This Court observes that there is nothing on record to prove that the contraband in question, much more than the commercial quantity, was not recovered from the petitioner. From the record, it also transpired that the case of the present petitioner is clearly distinguishable from that of co-accused Ramniwas, who has been enlarged on bail by this Hon’ble Court.

Thus, looking into the nature of offence in question and having regard to the overall facts and circumstances of the case, as also the contraband in question recovered from the petitioner being more than the commercial quantity, as also looking into the stage of the case against the present petitioner before the learned Trial Court, this Court is not inclined to grant bail to the present petitioner at this stage.

Consequently, the present third bail application is dismissed.