Dinesh Kumar vs State
2021 Latest Caselaw 9847 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. Criminal Misc. Bail Application No. 5624/2021.

(Second Bail)

Dinesh Kumar S/o Shri Lakharam Dhakar, Aged About 28 Years,

Niwasi- Tumdiya, Ps Gangrar, Distt. Chittorgarh (Raj.) .

(Presently Lodged In Distt. Jail, Hanumangarh)

----Petitioner Versus State of Rajasthan through PP

----Respondent

For Petitioner(s) : Mr. Sunil Bishnoi through VC. For Respondent(s) : Mr. Mukhtiyar Khan, PP.

Mr. Naresh Kumar Gera, Police Inspector, Station House Officer (SHO), Police Station, Hanumangarh Junction.

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

28/06/2021

The present second 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. 466/2019, Police Station

Hanumangarh Junction, registered for the offence under Section

8/18 of the NDPS Act.

Heard learned counsel for the petitioner appearing through

video conferencing as well as learned Public Prosecutor, present-

in-person. Perused the material available on record.

(2 of 4) [CRLMB-5624/2021]

Learned Public Prosecutor stated that in compliance of the

Court's earlier order dated 21.06.2021, Mr. Naresh Kumar Gera,

Police Inspector, Station House Officer (SHO), Police Station,

Hanumangarh Junction is present-in-person before the Court.

Learned counsel for the petitioner stated that at the time of

rejection of first bail application (No.549/2021, decided on

12.02.2021), liberty was granted to the accused-petitioner to file

fresh bail application after filing of the challan; challan has now

been filed, hence this second bail application. Learned counsel

stated that Mobile Number 7976701047 belongs to the accused-

petitioner; that as per tower location, presence of that mobile was

shown at Bhilwara; that Mobile Number 9928175324 has not

been belonged to the accused-petitioner and the same has not

been used by the accused-petitioner; that there is no evidence

which shows that the questioned number has been used by the

accused-petitioner; that as per tower location, the presence of the

phone number has been shown at Hanumagarh; that except the

statement of the co-accused, there is no evidence against the

accused-petitioner which is sufficient for constitution of the

offence punishable under Section 8/29 of the NDPS Act; that the

trial will take time. With these submissions, learned counsel for

the petitioner prayed that the benefit of bail may be granted to

the accused-petitioner by accepting his second bail application.

Per contra, learned Public Prosecutor has fervently and

vehemently opposed the second bail application of the accused-

petitioner and stated that during statement recorded under

(3 of 4) [CRLMB-5624/2021]

Section 67 of the NDPS Act, the accused-petitioner has admitted

this fact that Mobile Number 9928175324 has been used by him.

Learned Public Prosecutor also stated that both the mobile

numbers have been used by the accused-petitioner; that since in

the present matter, one year has been passed, therefore, the

requisite Certificate under Section 65-B of the Evidence Act could

not be procured by the concerned Investigating Officer,

therefore, benefit of bail may not be granted to the accused-

petitioner.

In reply, learned counsel for the petitioner stated that the

Police has no power to record the statement of the accused under

the provisions of Section 67 of the NDPS Act.

Having regard to the totality of the facts and circumstances

of the present case, particularly the facts that there is no

independent evidence which shows that the Mobile Number

9928175324 has also been used by the accused-petitioner

except the statement of the accused-petitioner recorded under

Section 67 of the NDPS Act which can be said to be sufficient for

constitution of the offence under NDPS Act against the accused-

petitioner; that this has been supported by Hon'ble the Supreme

Court in its judgment rendered in the case of Toofan Singh Vs.

State of Tamilnadu, reported in AIR 2020 SC 5592; that the

mandatory certificate required under Section 65-B of the Evidence

Act has also not been procured by the concerned Investigating

Officer; that the trial will take sufficiently long time, therefore,

without expressing any opinion on the merits/demerits of the

(4 of 4) [CRLMB-5624/2021]

case, this Court is of the opinion that the second bail application

filed by the petitioner deserves to be accepted.

Consequently, the present second bail application is allowed.

It is ordered that the petitioner, Dinesh Kumar S/o Shri

Lakharam Dhakar, arrested in connection with 466/2019, Police

Station Hanumangarh Junction, shall be released on bail, if not

wanted in any other case; provided he furnishes a personal bond

of Rs.1,00,000/- with two sound and solvent sureties of

Rs.50,000/- each to the satisfaction of the learned trial court with

the stipulation to appear before that Court on all dates of hearing

and as and when called upon to do so.

(DEVENDRA KACHHAWAHA),J

4-Mohan/-

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