Mangilal S/o Sh. Pokarram @APPELLANT@Hash State Of Rajasthan

Under-trial for offence punishable under Section 8 read with Sections 18 & 25 of the NDPS Act in Sessions Case No.69/2017, pending before Special

Judge, NDPS Cases, Jodhpur, accused-petitioner has made this third attempt for seeking bail. The aforementioned sessions case is outcome of FIR

No.6/2017, registered at Police Station Dangiyawas, District Jodhpur.

First bail application bearing No.7495/2017 on behalf of accused-petitioner was dismissed on 07.09.2017 by a detailed order. Yet again an attempt was

made by petitioner for seeking bail, but sans any material change in the circumstances, same was dismissed on 21.03.2018. Arguing on this third bail

application, it is submitted by learned Senior Counsel that after rejection of second bail application there is substantial change in the circumstances.

Elaborating his submissions in this behalf, it is contended by learned Senior Counsel that during trial six witnesses including the Seizure Officer have

been examined. While relying on testimony of Seizure Officer PW5 Suresh Choudhary, it is submitted by learned counsel that admittedly mobile

location of the incumbent at the time of recovery of contraband was not nearby Kakelao but at least 35 kms away from it. Learned Senior Counsel,

therefore, strenuously urged that it is a clear case of false recovery. Learned Senior Counsel, while laying emphasis on the disclosure of PW5 during

cross-examination that his phone location from 11:35 am to 05:15 pm was at a different place and not at the place of recovery of the contraband,

further submits that in the wake of such admission, recovery and seizure of contraband is in serious jeopardy. Learned Senior Counsel has also relied

upon the statements of Constable PW6 Madanlal, who accompanied the raid party. Taking a dig at the statements of PW6, learned Senior Counsel

would urge that at the time of alleged recovery of contraband mobile location of said witness was also not within nearby area of Kakelao. He,

therefore, urged that a cumulative reading of the statements of both these witnesses is sufficient to indicate falsity in the recovery proceedings.

Mr. Bora, learned Senior Counsel, has also argued that mobile location of these witnesses is also fortified from the call details obtained from the

service provider which was summoned by the Court while granting indulgence to the petitioner on his application under Section 91 Cr.P.C. Learned

Senior Counsel, in order to substantiate his argument about distance of mobile location of both the witnesses, i.e., PW5 & PW6, has also laid emphasis

on the statements of PW4 Omprakash, wherein he has candidly admitted the mobile phone location of these two witnesses 25 kms away from the

place of recovery as about 25 kms. Learned Senior Counsel has also urged that notice under Section 50 of the NDPS Act given to the accused-

petitioner is also infirm. Lastly, learned Senior Counsel submits that so far during trial only six witnesses are examined and completion of trial is likely

to take considerable time, therefore, keeping in view a very vital fact that petitioner is in custody since 04.02.2017, he may be released on bail. In

support of his arguments, learned Senior Counsel has placed reliance on the order passed by this Court in case of Deshraj Singh & Anr. Vs. State of

Rajasthan [2012(3) Cr.L.R. (Raj.) 1233] and bail order dated 16.04.2013 passed in case of Deshraj Singh Vs. State of Rajasthan in S.B. Criminal

Misc. (II) Bail Application No.129/2012.

Per contra, learned Public Prosecutor has vehemently opposed the third bail application. It is submitted by learned Public Prosecutor that undeniably

opium milk weighing 21 kg was recovered from the Dhani of accused-petitioner, therefore, he is not entitled for bail. Learned Public Prosecutor

further submits that considering the huge quantity of opium milk, which is umpteen times higher than commercial quantity, rigor of Section 37 is clearly

attracted.

I have bestowed my considerations to the arguments advanced at Bar and also made sincere endeavor to analyze substantial change in the

circumstances canvassed by learned Senior Counsel, besides examining the order passed in Deshraj Singh & Anr. (supra).

While it is true, that it is a case wherein the contraband recovered is 21 kg opium milk, which is much higher than commercial quantity but then the

evidence which is tendered by the prosecution to substantiate recovery has many pitfalls and shortcomings. Although, it may not be possible for the

Court to fully concur with the arguments of learned Senior Counsel that it is a case of false recovery but then a meaningful consideration of the

statements of three witnesses, i.e., PW4 to PW6, has obviously created a grave suspicion in the mind of the Court about recovery of contraband. The

NDPS Act, being a Special Act, which is enacted to curb devastating menace of drug trafficking, provides stringent punishments and therefore the

Legislature has provided many safeguards to the accused persons against their false implications. Therefore, it is necessary for the prosecution to

strictly adhere to the mandatory provisions and further ensure fair procedure during investigation free from any doubt or suspicion. The mobile location

of Seizure Officer and the Constable accompanying him at the time of recovery proceedings was at a distance of 25 kms to 35 kms from the place of

recovery, which in the backdrop of facts and circumstances of the case, cannot be completely eschewed. Thus, reliance can be sufficiently placed on

the order passed by the Court in Deshraj & Anr. (supra) for toning down rigor envisaged under Section 37 of the NDPS Act.

It is an admitted fact that as per version of PW5 Seizure Officer himself, his mobile location was at a different location from 11:35 am to 05:15 pm and

not at the place of recovery is yet another significant fact, which cannot be ignored by the Court for recording its satisfaction about compliance of

Section 37b(ii) of the NDPS Act.

In view of the foregoing discussion, while refraining to make any comment on merits of the case, I feel persuaded to accept this third bail application.

Accordingly, this third bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Mangilal S/o Sh. Pokarram,

arrested in connection with F.I.R. No.6/2017 of Police Station Dangiyawas, District Jodhpur, may be released on bail; provided he furnishes a

personal bond of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of learned trial Court with the stipulation to appear before that

Court on all dates of hearing and as and when called upon to do so.