Rajasthan High Court
Mahendra Kumar Yadav S/O Shri ... vs State Of Rajasthan on 30 July, 2021
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 7585/2021
Mahendra Kumar Yadav S/o Shri Mangal Chand Yadav, Aged
About 28 Years, R/o Ward No. 19 Dhani Kaninwalon Ki Divrala Sri
Madhopur Dist. Sikar Raj. (At Present Confined In Central Jail
Jaipur)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Ms. Madhumita Das
For Respondent(s) : Mr. S.S. Ola, PP
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
30/07/2021
Heard counsel for the parties.
Counsel for the petitioner submits that the petitioner has
been falsely implicated in this matter. Counsel further submits that
the petitioner is not named in the FIR. Counsel further submits
that the petitioner is involved in this case only on account that he
is the registered owner of the vehicle. Counsel further submits
that he has sold the vehicle by agreement to sale (Annex.4) to co-
accused Shyam Sunder. Counsel further submits that no other
case under the NDPS Act is pending against the petitioner.
Learned Public Prosecutor has opposed the bail application
and submitted that contraband article which has been recovered
from the possession of co-accused person is of commercial
quantity. Learned Public Prosecutor further submits that the
petitioner and co-accused are real brothers.
(2 of 4) [CRLMB-7585/2021]
In view of the Section 37 of the NDPS Act, this bail
application deserves to be dismissed.
Counsel relied upon the judgment passed by the Hon'ble
Supreme Court in the matter of State of Kerala Vs. Rajesh Etc.
reported in (2020) 12 SCC 122 has held as under:-
"20. The scheme of Section 37 reveals that the
exercise of power to grant bail is not only subject to
the limitations contained Under Section 439 of the
Code of Criminal Procedure, but is also subject to the
limitation placed by Section 37 which commences
with non-obstante clause. The operative part of the
said Section is in the negative form prescribing the
enlargement of bail to any person Accused of
commission of an offence under the Act, unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose
the application; and the second, is that the Court
must be satisfied that there are reasonable grounds
for believing that he is not guilty of such offence. If
either of these two conditions is not satisfied, the
ban for granting bail operates.
21. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for
believing that the Accused is not guilty of the alleged
offence. The reasonable belief contemplated in the
provision requires existence of such facts and
circumstances as are sufficient in themselves to
justify satisfaction that the Accused is not guilty of
the alleged offence. In the case on hand, the High
Court seems to have completely overlooked the
underlying object of Section 37 that in addition to the
limitations provided under the Code of Criminal
Procedure, or any other law for the time being in
force, regulating the grant of bail, its liberal approach
in the matter of bail under the NDPS Act is indeed
uncalled for.
22. We may further like to observe that the learned
Single Judge has failed to record a finding mandated
Under Section 37 of the NDPS Act which is a sine qua
non for granting bail to the Accused under the NDPS
Act.
23. The submission made by learned Counsel for the
Respondents that in Crime No. 14/2018, the bail has
been granted to the other Accused persons(A-1 to A-
4), and no steps have been taken by the prosecution
to challenge the grant of post-arrest bail to the other
Accused persons, is of no consequence for the reason
that the consideration prevailed upon the Court to
(3 of 4) [CRLMB-7585/2021]
grant bail to the other Accused persons will not
absolve the act of the Accused Respondent(A-5) from
the rigour of Section 37 of the NDPS Act.
24. The further submission of the learned Counsel for
the Respondents that they have been falsely
implicated in Crime No. 19/2018 for the reason that
the batchmates of the excise official, Babu Varghese
was convicted in the corruption case on the trap
being laid down by the Respondent-Shajimon(A-1) is
only a conjecture of self-defence, and no inference
could be drawn of false implication, more so when in
Crime No. 19/2018 and 14/2018, charge-sheets have
been filed after investigation and the matter is listed
before the learned trial Judge for framing of the
charge where the Accused Respondents certainly
have an opportunity to make their submissions.
25. That apart, in the application which was filed
before the learned Single Judge of the High Court by
the Appellant Under Section 482 Code of Criminal
Procedure, the learned Single Judge has also prima
facie accepted that error has been committed in
granting bail to the Accused Respondents as
observed in para 16 of the impugned judgment as
under:
On going through the orders granted on
10.5.2019 allowing bail applications of A1 and
A3 on the one hand and 5th Accused on the
other hand in NDPS crime Nos. 19/2018 and
14/2018 respectively, I find that the bail was
granted by the Court after being cognizant of
the principles laid down in Section 37 of the
Act whether it ultimately turned out to be
right or wrong. May be as regards 3rd
Accused was concerned, order was passed
under misconception of facts. Likewise, the
criminal antecedents concerning the first
Accused did not fall to the notice of this
Court. What could at the most be said of the
order passed by this Court is that it was
erroneous or it did not involve application of
mind. But then the question arises is whether
the same court could under law reconsider
the facts invoking Section 482 of the Code. I
am of the opinion that the remedy of the
State lay in challenging the orders of this
Court, if it was really aggrieved, before a
superior forum and not before the same
court. Therefore, accepting the argument of
the learned Counsel for the Accused, I hold
that none of the applications seeking to recall
the order of this Court is maintainable under
law.
26. In the result, the appeals are allowed and the
impugned order passed by the High Court releasing
the Respondents on bail is hereby set aside. Bail
(4 of 4) [CRLMB-7585/2021]
bonds of the Accused Respondents stand cancelled
and they are directed to be taken into custody. The
trial Court is directed to proceed and expedite the
trial.
27. Pending application(s), if any, stand disposed of."
In the facts and circumstances of the present case and
looking to the seriousness of the offence(s) alleged against the
petitioner and considering the Section 37 of the NDPS Act, without
expressing any opinion on the merits of the case, no case is made
out to release the petitioner on bail under Section 439 Cr.P.C.
Hence, this bail application stands dismissed.
(INDERJEET SINGH),J
CHARU SONI /251
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