Pankaj vs State Of Rajasthan

Kuldeep Mathur, J

This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.291/2021, registered at Police Station Badi Sadari District Chittorgarh, for offence under Section 8/15 of the NDPS Act.

Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. Learned counsel submitted that as per the prosecution, contraband (Poppy Husk/Straw) weighing 168 Kgs. was recovered in an abandoned condition at Ghantaghar Choraha, Badi Sadari, District Chittorgarh. During investigation, one Mubarik Hussain and Shambhu Lal informed the investigating agency that the present petitioner along with the co-accused persons brought the plastic bags containing the contraband at the place of incident in a gray coloured Brezza car bearing registration No.RJ-27-CG-3583, which was later on recovered by the SHO, Police Station Badi Sadari. The name of the petitioner as one of the occupants of the car was also disclosed from the statements of Shambu Lal.

Learned counsel for the petitioner submitted that no recovery has been effected from the conscious possession of the present petitioner. The petitioner has been implicated in the present case on the basis of the information disclosed by co-accused persons Mubarik Hussain and Shambhu Lal, to the investigating agency. Apart from the information divulged by Mubarik Hussain and Shambu Lal, there is no other evidence available on record indicating involvement of the petitioner in the commission of the alleged crime. Learned counsel further submitted that the statements of Mubarik Hussain (P.W.-1) and Shambhu Lal (P.W.-2) have been recorded before the competent criminal court wherein, they have not supported the prosecution story and have turned hostile.

Lastly, learned counsel submitted that the petitioner is in judicial custody, challan has been filed and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

Per contra, learned Public Prosecutor has opposed the bail application and vehemently submitted that there are not only call details between the petitioner and the co-accused persons but the call locations of these persons are also matching with the place of incident. He thus, prayed that since the petitioner is facing the trial for the offences under the NDPS, Act, therefore, the present bail application deserves to be rejected straightaway.

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

Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the Investigating Agency has failed to establish any link of the petitioner with the contraband which was recovered at Ghantaghar Choraha, Badi Sadari. The petitioner was implicated in the present case on the basis of the statements of Mubarik Hussain (P.W.-1) and Shambhu Lal (P.W.-2) recorded before the competent criminal court, however, both these witnesses have not supported the prosecution story during the course of their court statements and have turned hostile.

This Court also prima facie does not find any force in the arguments of learned public prosecutor that there are not only call details between the petitioner and the co-accused persons but the call locations of these persons are also matching with the place of incident.

In the opinion of this Court, the contraband was recovered from a thickly populated area and therefore, it would not be safe to infer involvement of the petitioner in the alleged crime only on the basis of his call location and call details, particularly when the contraband was not recovered from the ‘conscious possession’ or ‘constructive possession’ of the present petitioner.

This Court also prima facie finds that the petitioner does not have any criminal antecedents. The twin conditions enumerated in Section 37 of the NDPS Act are therefore duly satisfied in the present case. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner-Pankaj S/o Shivnarayan Dhakar, shall be enlarged on bail in connection with FIR No.291/2021, registered at Police Station Badi Sadari District Chittorgarh, provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to so.

It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.