Rajasthan High Court - Jodhpur

Anil Suthar vs N.C.B on 9 December, 2022

Bench: Manoj Kumar Garg

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 7777/2022

Anil Suthar S/o Shri Heeralal Suthar, Aged About 47 Years, R/o Plot No. 14, Dalle Kha Ki Chakki, Police Station Devnagar, Dist. Jodhpur. (Presently Lodged At Central Jail, Jodhpur)

----Petitioner Versus N.c.b., Jodhpur.

                                                                ----Respondent


For Petitioner(s)        :     Mr. M.L. Bishnoi
For Respondent(s)        :     Mr. M.R. Pareek, Spl PP
                               Mr. Shyam Singh, I.O, NCB, Jodhpur



         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                    Order

Order Reserved on :                 01/12/2022
Date of pronouncement:              09/12/2022

The petitioner has been arrested in connection with FIR No.

VIII(IO)/NCB/JZU/2022 of Police Station NCB, Jodhpur for the

offence punishable under Section 8/15 of NDPS Act. He has

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

Counsel for the petitioner submits that recovery has been

effected from the possession of co-accused Anil Sen and nothing

has been recovered from the petitioner. The petitioner has been

implicated with the aid of Section 29 of NDPS Act. He further

argued that the call details are also with regard to conversation

between the petitioner and Baldev Singh but there is no call detail

with main accused accused Anil Kumar Sen. The vehicle in

question was allegedly driven by co-accused Baldev but nothing

has been recovered from the co-accused Baldev. The said vehicle

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was in the name of petitioner at the relevant time but he had sold

the said vehicle some time back. He thus urges that there is no

evidence whatsoever on the record of the case so as to link the

petitioner with the recovered contraband. Learned counsel for the

petitioner placed reliance on the judgment of Hon'ble Apex Court

in the case of State by (NCB) Bengaluru Vs. Pallulabid Ahmad

Arimutta & Anr reported in 2022 LiveLaw (SC) 63. Learned

counsel further submits that in view of the judgment of the

Hon'ble Supreme Court in the case of Tofan Singh Vs. State of

Tamil Nadu reported in (2021) 4 SCC 1, the confessional

statements cannot form the sole basis for implicating a person in a

case of NDPS.

Per contra, learned Public Prosecutor vehemently opposed

the bail application and submits that when the first vehicle driven

by co-accused Anil Kumar Sen was stopped by the police party

and recovery was being made, the other vehicle driven by co-

accused Baldev Singh Bishnoi rammed into the vehicle of police

patrol and tried to flee, however the vehicle stopped due to

collision. There is record of calls made between the present

petitioner and co-accused Baldev Singh. Moreover, the recovered

contraband is commercial quantity, therefore, the bail application

may be rejected.

I have considered the arguments advanced before me and

carefully gone through the record.

The contraband was recovered from the vehicle being driven

by co-accused Anil Kumar Sen and the other one by co-accused

Baldev Singh who was escorting the vehicle. Co-accused Anil

Kumar Sen in his statement under Section 67 of NDPS Act has

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stated that he is indulged in the business of poppy husk for last

about one year and he purchased the contraband from Rakesh

Kumar and Murli Dhakad who introduced him to co-accused

Baldev Singh Bishnoi and Baldev Singh Bishnoi was driving the

second vehicle. Co-accused Baldev Singh was also arrested and in

his statement under Section 67 of NDPS Act, he stated that he is

indulged in the business of poppy husk and used the vehicle of

petitioner Anil Suthar for which he used to give Rs.2500/- per trip.

He also stated that when the patrolling party tried to stop the

vehicle, he hit the vehicle and tried to run away but the vehicle

stopped. In the instant case, there is material on record in the

shape of statement of co-accused as also the statements of

witnesses recorded by the investigating agency during the

investigation of the case which shows the involvement of the

petitioner in the alleged crime. There is also call details of

conversion of present petitioner with co-accused Baldev Singh so

also the Bank record, which shows that the co-accused Baldev

Singh used to deposit money in the account of the petitioner.

Therefore, by no stretch of imagination it can be said at this stage

that there are reasonable grounds for believing that the petitioner

is not involved in the offence. Thus, the present case is not a fit

case for extending bail to the accused petitioner at this stage. So

far as the judgment relied upon by counsel for the petitioner is

concerned, in the said case, the bail applications of the accused

respondents were allowed by the High Court. The Hon'ble

Supreme Court held that the CDR details of some of the co-

accused or the allegations of tampering of evidence on the part of

one of the respondents is an aspect that will be examined at the

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stage of trial and therefore, the SLPs preferred by the NCB

seeking cancellation of the bails granted to the respective

respondents were dismissed as meritless. However, in the present

case, there is evidence against the petitioner in the form of call

details of conversation with the co-accused Baldev Singh so also

the bank record showing money received by him for use of his

vehicle by co-accused.

Hon'ble Apex Court in Union of India v Md. Nawas Khan

reported in 2021 (10) SCC 100 has held that whether the

procedure laid down under the NDPS Act is complied or not, the

same cannot be looked into at the time of grant of bail and can

only be decided at the time of trial, as the same is a question of

fact. At this point, this court cannot evaluate the evidence on

record while exercising discretion under Section 439 Cr.PC.

Thus, I am of the prima facie opinion that other than the

confession statement of the co-accused there are other materials

to connect the accused with the alleged crime, though the veracity

and acceptability of those materials are all matters to be

considered at the time of trial.

Hon'ble Apex Court recently in the Narcotics Control Bureau

v. Mohit Aggarwal reported in AIR 2022 SC 3444 held as follows:

"17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding

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that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.

18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, 'or him to have been admitted to bail. The length of the period of his custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."

Hon'ble Apex Court while considering the impact of Section

37 when deciding a bail application in Union of India v. Ram

Samujh, reported in (1999) 9 SCC 429, held as under :

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young

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victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved."