Rajasthan High Court - Jodhpur
Ncb vs Rajesh Kumar on 8 April, 2021
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Bail Cancellation Application No. 23/2019
Narcotics Control Bureau 18-E, Chopasani Housing Board,
Jodhpur.
----Petitioner
Versus
Rajesh Kumar S/o Vishwa Nath Prasad, R/o Village And Post
Musela, Teh. Mohanpur, Dist. Gaya, Bihar
----Respondent
For Petitioner(s) : Mr. M.P. Pareek, Spl. PP
For Respondent(s) : Mr. B.R. Bishnoi
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order
08/04/2021
Heard learned Special Public Prosecutor for Narcotics Control
Bureau and learned counsel for the respondent-accused.
The instant application for cancellation of bail has been
preferred by the Narcotics Control Bureau, Jodhpur for assailing
the order dated 08.02.2019 passed by the Special Judge, NDPS
Act Cases, Jodhpur in Criminal Misc. Application No.69/2019
whereby, the bail application of the respondent-accused under
Section 439 Cr.P.C. was accepted.
Learned Special Public Prosecutor Shri M.P. Pareek submits
that ex-facie the order impugned is illegal on the face of the
record because contraband opium which was recovered from the
three accused persons namely Avinash Kumar and Yogendra
Kumar weighed 5 Kg 750 gms., which was well above the
commercial quantity. All the three accused persons are residents
of Bihar. They failed to offer any explanation for being found in
(2 of 3) [CRLBC-23/2019]
possession of the contraband opium. He points out that two bail
applications preferred by the accused Yogendra Kumar and five
bail applications preferred by the accused Avinash Kumar have
been rejected by this Court. He drew the Court's attention to the
Supreme Court judgment in the case of State of Kerala Etc. Vs.
Rajesh Etc. reported in AIR 2020 SC 721 wherein the Hon'ble
Apex Court considered the concept of bail under the NDPS Act and
held that before granting bail to the accused for an offence under
the NDPS Act, where the recovered quantity is commercial, it is
essential for the Court seized of the matter to record a satisfaction
in terms of Section 37 of the NDPS Act. He urges that the
impugned order dated 08.02.2019, does not indicate any such
satisfaction recorded by the trial Court and hence, the same
cannot be sustained.
Learned counsel Shri B.R. Bishnoi, representing the
respondent-accused vehemently and fervently contended that the
accused is suffering from 75% disability and is not even in a
position to walk without assistance. He thus urges that it is totally
impossible to believe the story of prosecution that all the three
accused were found carrying the single bag containing 5kg
750gms opium through a stair case which was just 28 feets 6
inches wide. He thus urges that ex-facie the entire story of the
prosecution is false and fabricated. However, Shri Bishnoi is not in
a position to dispute the fact that the recovered contraband was
well above the commercial quantity.
Law is well settled that in cases where the weight of the
contraband narcotic drug is more than commercial quantity, the
Court considering the bail of the accused would definitely be
(3 of 3) [CRLBC-23/2019]
under an obligation to record the satisfaction under Section 37 of
the NDPS Act which reads as below:-
Section 37 of The Narcotic Drugs and Psychotropic
Substances Act, 1985
37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for 2[offences
under section 19 or section 24 or section 27A and also for
offences involving commercial quantity] shall be released on
bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for
believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of
sub-section(1) are in addition to the limitations under the
Code of Criminal Procedure, 1973 (2 of 1974) or any other law
for the time being in force, on granting of bail.
However, the order impugned is totally silent on this aspect.
Thus, the controversy at hand is squarely covered by the ratio of
Hon'ble Supreme Court judgment (State of Kerala Vs. Rajesh)
supra relied upon by Shri Pareek. Hence, the impugned order
cannot be sustained, quashed and set aside. The bail bonds of the
respondent-accused are cancelled. He shall surrender before the
trial court within next thirty days. Needless to say that after
surrendering, the accused shall at liberty to file a fresh regular bail
application, which shall be considered and decided as per law.
The application for cancellation of bail is allowed in these
terms.
(SANDEEP MEHTA),J
128-Mamta/-
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