Nirmal Dudhani vs Uoi
2021 Latest Caselaw 7647 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Miscellaneous Bail Application No. 11899/2019

Nirmal Dudhani S/o Sh. Prakash Dudhani, Aged About 37 Years, R/o 3/49, Rajasthan Housing Board, C- Class, Pratap Nagar, Udaipur- 313001. (The Petitioner Presently Lodged In Central Jail, Udaipur)

----Petitioner Versus

Union of India through Directorate of Revenue Intelligent.

----Respondent

For Petitioner(s) : Mr. Vikas Balia, Mr. Rajendra Shahasane, Mr. V.D. Vaishnav

For Respondent(s) : Mr. B.P. Bohra for Union of India

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

18/03/2021

Heard learned counsel for the parties.

The petitioner has been arrested in FIR

No.DRI/UZU/JRU/19/INI-4/2016 dated 26.4.2017 for the

offences punishable under Sections 22(c), 23(c), 25, 25A,

27A & 29 read with Sections 2, 8 & 8A of the Narcotic

Drugs and Psychotropic Substances Act, 1985 and Rules

53A, 64A, 65A, 66 and 67 of the Narcotic Drugs and

Psychotropic Substances Rules, 1985. He has preferred

this bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that

the petitioner has falsely been implicated in this case by

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the Prosecuting Agency i.e. the Director of Revenue

Intelligence. It is argued that the entire case against the

petitioner is solely based on the confession of the

petitioner and other co-accused persons recorded by the

Prosecuting Agency under Section 67 of the NDPS Act. It

is argued that the Hon'ble Apex Court in the case of

Tofan Singh Vs. State of Tamil Nadu (Criminal

Appeal No.152/2013) decided on 29th October, 2020

has specifically held that the statement recorded under

Section 67 of the NDPS Act in front of a police officer

cannot be used as a confessional statement in the trial

for an offence under the NDPS Act. It is argued that the

official of the DRT, who has recorded the confessional

statement of the petitioner under Section 67 of the NDPS Act was a police officer and, as such, the confessional

statement made in front of him would be barred under

the provisions of Section 25 of the Evidence Act.

Learned counsel for the petitioner has further

submitted that the petitioner was the employee of main

accused Subhash Dudhani, who was the owner of factory

premises, from where, the Prosecuting Agency has

allegedly recovered huge quantity of methaqualone

tablets containing narcotic substances above commercial

quantity. It is further submitted that the petitioner was

working as a Supervisor in the said factory and was

getting salary of Rs.15,000/- per month. It is argued that

the Prosecuting Agency has failed to collect any evidence

of this effect that the petitioner was aware about

manufacturing of methaqualone tablets containing

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narcotic substances in the said factory. It is submitted

that in the absence of any such evidence available on

record, it cannot be said that the petitioner was guilty of

manufacturing or possessing the said narcotic

contraband.

Learned counsel for the petitioner has invited my

attention towards various findings recorded by the

Prosecuting Agency in the charge-sheet and argued that

from the said findings, it cannot be concluded that the

petitioner was involved in commission of crime in any

manner or was having knowledge of this effect that in the

factory premises, where he was working as a Supervisor,

methaqualone tablets containing narcotic substances are

being manufactured. It is also submitted that the petitioner is in custody from last around more than fifty

months and there is no likelihood that the trial against

him is going to be concluded early and, in such

circumstances, he is entitled to be enlarged on bail.

Per contra, Mr. B.P. Bohra appearing for Union of

India has vehemently opposed the bail application and

submitted that on 28.10.2016, when the factory premises

in question were raided, the petitioner was present there

and he provided keys of the locks put on the gates of the

rooms and go-downs of the factory and after opening the

said locks, huge quantity of methaqualone tablets

containing narcotic substances above commercial

quantity and other materials were found. It is submitted

that it is difficult to believe that the petitioner being the

In-charge of the factory was not aware about

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manufacturing of the prohibited drugs there. Mr. Bohra

has further submitted that the Prosecuting Agency has

also collected evidence of this effect that the petitioner

was also supervising the works of transporting drugs at

various places. It is also argued that the petitioner is the

nephew of main accused Subhash Dudhani and is

working with him since decades and it is clear that he

was not simply a Supervisor of the factory, but was

involved in manufacturing of the prohibited drugs along

with other co-accused persons. It is further argued that

at the time of seizure of the narcotic contraband, the

petitioner was present there and the rooms and go-

downs of the factory, from which, the methaqualone

tablets containing narcotic substances were found, were in his conscious possession as he was possessing keys of

the locks put on those rooms and go-downs. Mr.Bohra

has, therefore, submitted that involvement of the

petitioner in the commission of crime is more than clear

and as the narcotic contraband recovered in the matter is

above commercial quantity, he is not entitled to be

enlarged on bail in view of the provisions of Section 37 of

the NDPS Act.

Heard learned counsel for the parties and perused

the material available on record.

As per the charge-sheet, at the time of seizure of the

methaqualone tablets containing narcotic substances

above commercial quantity, the petitioner was very much

present there and the keys of the locks put on the rooms

and go-downs, where the narcotic contraband was

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stored, were provided by the petitioner only. The

petitioner was working in the factory since so many years

where the prohibited drugs were being manufactured and

even if it is assumed that the petitioner was working

there as a Supervisor, at this stage, it is difficult to

comprehend that he was not aware about manufacturing

of the prohibited drugs in the said factory.

Having regard to the overall facts and circumstances

of the case and in view of limitations as provided under

Section 37 of the NDPS Act, I do not find it to be a fit

case for granting bail to the petitioner.

Hence, this bail application is dismissed.

(VIJAY BISHNOI),J

1 - ms rathore

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