Naresh vs State Of Rajasthan
2021 Latest Caselaw 2836 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 13303/2020

Naresh S/o Shri Bheru Lal, Aged About 32 Years, Agoriyam, Tehsil Bhindar, District Udaipur. (Lodged In District Jail Pratapgarh And Presently Enlarged On Interim Bail).

                                                                     ----Petitioner
                                   Versus
State Of Rajasthan, Through P.P
                                                                 ----Respondent


For Petitioner(s)        :     Mr. B. Ray Bishnoi
For Respondent(s)        :     Mr. Farzand Ali, AAG-cum-GA
                               Mr. Mukesh Trivedi, PP



           HON'BLE MR. JUSTICE SANDEEP MEHTA

                         Judgment / Order

02/02/2021

The instant bail application has been filed under Section 439

Cr.P.C. on behalf of the petitioner, who is in custody in relation to

F.I.R. No.210/2019, Police Station Dhariyavad, District Pratapgarh

for offences under Sections 8/15, 8/25 & 8/29 of the NDPS Act.

Learned counsel Shri Bishnoi vehemently and fervently urges

that the petitioner and the co-accused Dharamchand were

travelling in the same car (No.RJ 27 CG 5141) from which the

contraband poppy-straw was recovered. He urges that the

application for bail filed on behalf of Dharamchand has been

accepted by this Court and the case of the present petitioner is on

the same footing. Shri Bishnoi further urges that the Investigating

Officer did not ensure compliance of mandatory provision of

Section 42 of the NDPS Act and hence, the search and seizure are

vitiated and accordingly, the petitioner deserves indulgence of bail.

(2 of 4) [CRLMB-13303/2020]

Per contra, learned Public Prosecutor points out that a total

of 135.4 Kgs of poppy-straw which weighs well above the

commercial quantity was concealed in the car being driven by the

petitioner and Dharamchand was also present therein. He urges

that a misstatement of fact was made before this Court while

arguing the bail application of Dharamchand inasmuch as it was

portrayed that only 42 Kgs. of poppy-straw was recovered from

the said accused whereas the gross 135.4 Kgs. of poppy-straw

was recovered from the car in which both the accused were

present. He urges that contraband was recovered as a bulk

concealed in the car in question, the conscious possession of the

whole quantity has to be attributed to both the accused present in

the vehicle by virtue of Section 35 of the NDPS Act. He further

submits that an application for cancellation of bail has already

been moved by the State in the case of Dharamchand. He thus,

urges that the petitioner does not deserve indulgence of bail in

this case as the conditions under Section 37 of the NDPS Act are

not satisfied.

I have given my thoughtful consideration to the submissions

advanced at Bar and have through the material available on

record.

Suffice it to state that total of 135.4 kgs. of Poppy-straw

packed in seven gunny bags was recovered from the car (No.RJ

127 CG 5141) in which the petitioner and the co-accused

Dharamchand were found present. As the contraband poppy-straw

was found as a bulk, conscious possession of the whole quantity

can be attributed to both occupants of the vehicle by virtue of

Section 35 of the NDPS Act. The bail application of co-accused

Dharamchand was accepted by Co-ordinate Bench of this Court

(3 of 4) [CRLMB-13303/2020]

based on the argument of the defence counsel that only 42 Kgs. of

contraband poppy-straw was recovered from the said accused.

However, the factual position is otherwise as is evident from bare

perusal of the challan papers. Hon'ble the Supreme Court has held

in the following Cases

(i) State of Kerala & Ors. vs. Rajesh & Ors., reported in AIR

2020 SC 721,

(ii) Union of India vs. Ratan Malik, reported in (2009)2 SCC

624,

(iii) Narcotics Control Bureau vs. Kishan Lal & Ors.,

reported in AIR 1991 SC 558,

(iv) Union of India vs. Shiv Shanker Kesari reported in

(2007)7 SCC 798, and

(v) Intelligence Officer, Narcotics C. Bueau vs. Sambhu

Sonkar & Ors., Control reported in AIR 2001 SC 830.

that while considering the bail application of accused in a

case involving recovery of commercial quantity of narcotic drugs

and psychotropic substances, recording of satisfaction of Section

37 of the NDPS Act is mandatory. Regarding the contention of

learned counsel Shri Bishnoi that the mandatory provision of

Section 42 was not complied with while conducting search and

seizure, suffice it to say that as the recovery was made from a

vehicle in transit, the provisions of Section 43 would apply and not

Section 42 of the NDPS Act. Hence, no prejudice is caused to the

petitioner by the so-called non-compliance of Section 42 of the

NDPS Act. In the present case, I am duly satisfied that no such

satisfaction as warranted by Section 37 of the NDPS Act can be

recorded in favour of the petitioner.

                                                                            (4 of 4)                     [CRLMB-13303/2020]




                                         In view       of   the     foregoing         discussion,       the   instant   bail

application is dismissed as being devoid of merit.

(SANDEEP MEHTA),J 7-Sudhir Asopa/-

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