Devi Lal vs Union Of India Through Ncb
2022 Latest Caselaw 10162 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Miscellaneous II Bail Application No. 1064/2022

Devi Lal S/o Babu Lal Dhakar, Aged About 52 Years, Anvalkhera, P.S. Begun Distt. Chittorgarh. (At Present Lodged In Distt. Jail, Chittorgarh).

----Petitioner Versus

Union of India Through NCB

----Respondent

For Petitioner(s) : Mr. Anand Purohit, Sr. Advocate assisted by Mr. Kailash Khilery

For Respondent(s) : Mr. M.R. Pareek, Spl. PP for UOI through NCB

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

03/08/2022

The petitioner has been arrested in FIR No.04/2019

of Police Station NCB, Jodhpur for the offence under

Section 8/29 of the NDPS Act. He has preferred this

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

Learned counsel for the petitioner has submitted that

as per the prosecution story, 6.400 kgs of opium have

been recovered from the possession of the petitioner on

10.3.2019 by a team of the Narcotic Contral Bureau,

(2 of 5) [CRLMB-1064/2022]

Jodhpur (for short 'the NCB'). Learned counsel has

submitted that in the complaint, the prosecution has

alleged that on an information, the NCB has raided the

premises, in which, the petitioner was found sitting in a

shop and 6.400 kgs of opium were recovered from his

possession. Learned counsel for the petitioner has

submitted that the allegation levelled against the

petitioner of possessing opium more than commercial

quantity is absolutely false. It is argued that the NCB has

failed to verify that the permises, where the alleged raid

was conducted, belongs to the petitioner or he is the

owner of the said premises. It is also submitted that as a

matter of fact, as per the prosecution story, 6.400 kgs of

opium were recovered from a metal box, which was lying

on an open place. Learned counsel for the petitioner

while inviting attention of this Court towards the

statement of Seizure Officer - Banshi Lal (PW-3) and IO -

Pritam Singh (PW-4) has argued that both the above-

named witnesses, in their court statement, have clearly

admitted that they have not verified that the place, from

where they have allegedly recovered opium from the

possession of the petitioner, belongs to him. It is

submitted that as a matter of fact, the prosecution has

allegedly recovered narcotic contraband from a place i.e.

(3 of 5) [CRLMB-1064/2022]

Thakurai Tiraha, whereas the petitoiner is the resident of

village Anvalkhera, which is around 10 - 15 kms away

from the place of the alleged recovery of opium. Learned

counsel has submitted that the petitioner is in custody

from last more than three years and trial against him is

still pending. It is also submitted that on the basis of the

evidence produced by the prosuction till date, it cannot

be concluded that the prosecution will be able to prove

the guilt of the petitoner before the trial court. It is, thus,

submitted that in the facts and circumstances of the

case, the petitioner may be enlarged on bail.

Per contra, learned Special Public Prosecutor has

vehemently opposed the bail application and argued that

the NCB was in receipt of a secret information on

9.3.2019 wherein name of the petitioner was clearly

mentioned and the information is that the petitioner is

going to supply 40 to 50 kgs of opium to one Bhanwar

Lal, resident of Jodhpur. As the information was reliable,

the NCB conducted raid in the presence of independent

witnesses and recovered 6.400 kgs of opium from the

possession of the petitioner. It is further argued by the

learned Special Public Prosecutor that though the Seizure

Officer as well as the IO have not verified that whether

the premises, from where, huge quantity of opium was

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recovered is owned by the petitioner or not, but this fact

itself will not vitiate the raid conducted by the NCB

wherein 6.400 kgs of opium were recovered from the

conscious possession of the petitioner. Learned Special

Public Prosecutor has submitted that as per Section 37 of

the NDPS Act, until and unless the court comes to a

conclusion that prima facie the accused person is not

guilty for commission of any offence under the NDPS Act,

bail cannot be granted to an accused person.

Heard learned counsel for the parties and perused

the material available on record.

It is not in dispute that the NCB was in receipt of a

secret information to the effect that the petitoner is going

to supply huge quantity of opium to another person.

Treating the information as reliable, the NCB had

conducted raid and in that raid, recovered 6.400 kgs of

opium allegedly from the possession of the petitioner in

the presence of independent witnesses. Though, the said

independent witnesses have not supported the

prosecuton story and turned hostile, but in their court

statement, they have admitted their signatures on the

papers while alleging that the police had forcibly took

their signatures on them.

(5 of 5) [CRLMB-1064/2022]

Be that as it may, taking into consideration the

overall facts and circumstances of the case, particularly

the fact that the NCB had recovered 6.400 kgs of opium

allegedly from the possession of the petitioner and

keeping in view the limitations prescribed under Section

37 of the NDPS Act, I am not inclined to grant bail to the

petitioner.

Hence, this second bail application is dismissed.

(VIJAY BISHNOI),J

214-msrathore/-

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