Sandeep vs State Of Rajasthan
2021 Latest Caselaw 17575 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

.....

S.B. Criminal Misc. Bail Application No. 10472/2021.

(Second Bail)

Sandeep S/o Hanuman Ram, aged about 23 years, resident of

Ward No. 5, Godu, Police Station Bajju, District Bikaner.

(Presently lodged at Sub Jail, Anoopgarh, Dist. Sri Ganganagar)

----Petitioner Versus State of Rajasthan through PP

----Respondent

For Petitioner(s) : Mr. Ram Niwas.

For Respondent(s)        :     Mr. Javed Gouri, PP.



      HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                    Order

24/11/2021

The present second bail application has been filed under

Section 439 Cr.P.C. on behalf of the accused-petitioner, who is in

judicial custody in connection with the First Information Report

(FIR) No. 103/2019, Police Station Ramsinghpur, registered for the

offences punishable under Sections 8/15 & 25 of the NDPS Act.

Learned counsel for the petitioner stated that at the time of

rejection of first bail application (No. 5744/2021) by this Court on

03.05.2021, liberty was granted to the accused-petitioner to move

fresh bail application. Learned counsel stated that no independent

witness was made/procured by the Seizure Officer; that the

(2 of 4) [CRLMB-10472/2021]

Motbir witnesses were of police persons; that the site plan was not

prepared by the Seizure Officer; that the accused-petitioner is

behind the bars since 2 & ½ years; that earlier no other case has

been registered against the accused-petitioner; that the

contraband in question was recovered from two persons and if the

recovered quantity would be divided into two parts, it would come

to the non-commercial quantity. In support of his contentions,

learned counsel for the petitioner has referred to and relied upon

the judgments passed by this Court as well as by the co-ordinate

Bench(s) of this Court . Lastly, it has been prayed by the learned

counsel for the petitioner that the benefit of bail may be granted

to the accused-petitioner.

Per contra, learned Public Prosecutor has vehemently and

fervently opposed the present second bail application of the

accused-petitioner and stated that the seizure proceedings were

conducted at a place where no independent witness was available,

therefore, the Seizure Officer had not made/procured any

independent witness in this case. Learned Pubic Prosecutor also

stated that in the present total 100 kgs. of poppy husk was

recovered from the accused persons. Learned Public Prosecutor

further stated that no question was put to the Seizure Officer in

regard to preparation of map. Learned Public Prosecutor stated

that the Seizure Officer has admitted that it was informed by both

the accused persons that the contraband in question belongs to

both the accused. He lastly urges that the provisions of Section 37

of the NDPS are clearly attracted in this case. Learned Public

Prosecutor prays that considering the overall circumstances of the

case, benefit of bail may not be granted to the accused-petitioner.

(3 of 4) [CRLMB-10472/2021]

In reply, learned counsel for the petitioner, while drawing the

attention of the Court towards page number 68, stated that the

Seizure Officer (Shri Satpal Singh S/o Bhag Singh) has admitted

during the course of cross-examination that, ^^;g dguk lgh gS fd QnZ izn"kZ ih1 dk uD"kk ekSdk eSaus ugha cuk;k uk gh vkbZ vks us esjs lkeus cuk;k A^^

Having regard to the facts and circumstances of this case,

particularly to the fact that after passing of the above judgments,

as cited by the learned counsel for the petitioner, a different view

was taken by the Punjab & Haryana High Court to the effect that

at the stage of bail application, the recovered quantity of the

contraband cannot be bifurcated without recording the statement

of the Seizure Officer and/or Investigating Officer. As stated by the

learned counsel for the accused-petitioner and having regard to

the statement of the Seizure Officer that there was a joint

possession of both the accused persons over the contraband in

question, therefore, it can be held that the contraband in question

was found from the dickey of the car and for this reason also, it

cannot be held that the accused persons have separate possession

over the contraband in question at the time of seizure.

Simply because, independent witnesses are belonging to the

police party, it cannot be held that their statement can be

disbelieved on that ground alone, especially when the contraband

in question was recovered from an place where, no independent

witness was available.

(4 of 4) [CRLMB-10472/2021]

Undoubtedly, the recovered quantity of the contraband in

question is of commercial quantity, if not divided into two parts

and as per the statement of the Seizure Officer, it can be held that

the contraband was in joint possession of both the accused

persons, therefore, without expressing any opinion on the merits

or demerits of the case, I do not found it to be a fit case for

granting the benefit of bail to the accused-petitioner. In the

opinion of this Court, in the present matter, the restrictions

contained under Section 37 of the NDPS are absolutely operate

against the accused-petitioner.

Accordingly and in view of the discussion foregoing, the

second bail application filed under Section 439 Cr.P.C. on behalf of

the accused-petitioner, Sandeep S/o Hanuman Ram, is

dismissed.

(DEVENDRA KACHHAWAHA),J 99-Mohan/-

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