Rajasthan High Court
Budharam Jat S/O Shri Jairoop Ram ... vs Uoi, Ncb on 16 July, 2021
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 4744/2021
Budharam Jat S/o Shri Jairoop Ram Jat, Aged About 50 Years,
R/o Village Post Chirdhani, Teshil And Police Station Pipad City,
District Jodhpur (Raj) (Presently Lodged At Central Jail, Jaipur).
----Petitioner
Versus
U.O.I., NCB, through Its Public Prosecutor.
----Respondent
For Petitioner(s) : Mr. Sneh Deep Khyaliya
For Respondent(s) : Mr. Tej Praksh Sharma, Spl. PP, NCB
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order
16/07/2021
The present bail application has been filed under Section 439
Cr.P.C. on behalf of the petitioner, who is in judicial custody in
connection with F.I.R. No.VIII(10)18/NCB/JZU/2019, registered at
Police Station NCB, District Jodhpur, registered for the offences
punishable under Sections 8/18, 8/29 of NDPS Act.
Heard learned counsel for the petitioner and learned Special
Public Prosecutor. Perused the material available on record.
Learned counsel for the petitioner stated that accused-
petitioner was arrested on on 20.08.2020; seizure proceeding was
conducted on 16.12.2019; alleged 40 kgs 610 gms opium was
recovered from accused - Sampatram; statements recorded under
Section 67 of the NDPS Act, Sampatram named Ramdeen Khokhar
thereafter, statement of Ramdeen Khokhar was recorded on
30.07.2020 under Section 67 of the NDPS Act, he named accused-
petitioner and Sonaram and stated that from recovered quantity,
(2 of 3) [CRLMB-14375/2020]
10 kgs opium was supplied by the petitioner - Budharam Jat and
15 kgs by Sonaram. Learned counsel for the petitioner stated that
the said statement is totally false, while placing photo copy of the
death certificate of Sonaram for the Court's perusal, because
Sonaram expired on 06.07.2019 and it is wrong that recovered
opium was given to Sonaram's wife. Learned counsel further
stated that initially, complaint was filed against the Sonaram,
Ramdeen, Kishanlal (vehicle owner); only on the basis of
statements of co-accused, petitioner has wrongly been implicated
in this case later on. Learned counsel for the petitioner relied upon
the judgment passed in the case of Tofan Singh Vs. State of Tamil
Nadu reported in AIR 2020 SC 5592 and stated that as per the
law laid down by the Hon'ble Apex Court in Tofan Singh's case,
statement recorded under Section 67 of the NDPS Act cannot be
relied upon. Lastly, learned counsel for the petitioner prayed that
benefit of bail may be granted to the accused-petitioner.
Per contra, learned Special Public Prosecutor fervently and
vehemently opposed the bail application of the accused-petitioner
and stated that in total 40kgs 610gms opium recovered; as per
department, out of these recovered contraband, 10 kgs. belongs
to the accused-petitioner which is also a commercial quantity.
Learned Special Public Prosecutor further stated that it is wrong to
say that there is no evidence except to the statements of co-
accused; call detail report has also been obtained by Intelligence
Officer (Seizure Officer); as per that call detail report, accused-
petitioner was regularly in contact with the co-accused since
contraband was proceeded from Tinsukia (Assam). He lastly, urges
that Section 37 of the NDPS Act is clearly attracted in this case.
(3 of 3) [CRLMB-14375/2020]
In reply of the arguments of learned Special Public
Prosecutor, learned counsel for the petitioner stated that only call
details of three calls are available and in that call detail report,
one is of 27th November, second is of 3 rd December and third is of
7th December. Learned counsel for the petitioner also supplied
copy of the bail order passed in bail application No.7379/2021
dated 09.06.2021 (Gopiram Vs. State of Rajasthan).
Having regard to the facts and circumstances of this case,
particularly to the facts that in the case referred to relied upon by
learned counsel for the petitioner, in that case, there was no other
evidence except to the statements given under Section 27 of the
Evidence Act against the accused-petitioner, therefore, benefit of
bail was granted to the accused-petitioner in the said case; that
for the present case, it is also pertinent to mention here that apart
from the statement of co-accused, call detail report is also
procured and produced by the Intelligence Officer (Seizure Officer)
and recovered quantity is commercial quantity; and this Court is
also of the view that the recovered contraband weighs above
commercial quantity, the restrictions contained in Section 37 of
the NDPS Act operate against the accused-petitioner, therefore,
without expressing any opinion on merit/demerit of this case, I do
not find it to be a fit case to enlarge the accused-petitioner on bail
under Section 439 Cr.P.C.
Accordingly, the bail application preferred by the petitioner-
Budharam Jat S/o Shri Jairoop Ram Jat under Section 439 Cr.P.C.
is rejected.
(DEVENDRA KACHHAWAHA),J
Arvind/2
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