Rajasthan High Court - Jodhpur
Bhimgar vs State Of Rajasthan on 15 December, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous III Bail Application No. 15098/2022
Bhimgar S/o Shri Danghar, Aged About 28 Years, R/o Leelsar,
Chouhtan Police Station, District Barmer.
(Lodged In District Jail, Pali)
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioner : Mr. B. Ray Bishnoi
For Respondent : Mr. Arun Kumar, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 12/12/2022
Pronounced on 15/12/2022
1. This criminal misc. third bail application under Section 439
Cr.P.C. has been preferred with the following prayer:
"It is, therefore, most respectfully and humbly prayed that
this bail application may kindly be allowed and the petitioner
may kindly be ordered to be release on bail."
2. The petitioner has been arrested in connection with FIR
No.154/2020 registered at Police Station Marwar Junction, District
Pali for the offences under Sections 8/15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "the
Act of 1985").
3. The first Bail Application, being S.B. Criminal Miscellaneous
Bail Application No.12108/2020, preferred on behalf of the present
petitioner, was dismissed as not pressed vide order dated
06.11.2020 passed by this Court, with liberty to file a fresh bail
application after filing of the charge-sheet; while the second bail
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application preferred on behalf of the present petitioner, being
S.B. Criminal Miscellaneous Second Bail Application No.
2799/2021 was dismissed, as withdrawn at that stage, vide order
dated 20.01.2022 passed by this Court.
4. Brief facts of this case, as placed before this Court by
learned counsel for the petitioner, are that on 17.06.2020, Shri
Gopal Vishnoi, S.H.O. Marwar Police Station, District Pali received
an information regarding certain contraband, and on the same
day, the said S.H.O., along with a police team blocked the road at
the border of Panchetiya; and at about 6:10 p.m., a vehicle
bearing registration no. GJ-02-BD-6179 broke the blockade, whilst
being driven towards Banta; whereupon the police team chased
the said vehicle, and for the purpose of avoiding interception by
the police team, the said vehicle also hit the police vehicle, but
after due efforts, the police team surrounded the offending vehicle
and caught its driver.
4.1 Upon being asked about the identity, the accused (driver)
introduced himself as Rekhagar and the other person sitting with
him in the vehicle, introduced himself as Bhimgar (present
accused-petitioner). Thereafter, upon complying with the
necessary provisions of law, the police team carried out the search
of the said vehicle, being a 'Swift Car' and found a total of 103 kg
of poppy straw (Doda Post); the contraband was accordingly
seized by the concerned police authorities. Thereafter, the accused
were arrested, and the impugned FIR was registered against
them.
4.2 Upon investigation, the concerned police authorities filed the
charge-sheet against both the accused, whereupon the learned
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Court below framed charges under Sections 8/15 & 25 of the Act
of 1985 against the accused. Upon commencement of trial,
statements of six witnesses were recorded.
5. Learned counsel for the petitioner submitted that the
accused-petitioner has been falsely implicated; on the sole
premise that he was sitting alongwith the driver of the offending
vehicle (Swift Car), and that the co-accused-driver has not
disclosed anything which could point toward the fact that the
accused-petitioner was having the knowledge of the presence of
contraband in the said vehicle.
6. Learned counsel for the petitioner further submitted that the
testimony of P.W.6-Gopal Vishnoi clearly reveals the contradiction
in cross-examination, and the statement also shows non-
compliance of the mandatory provision of law contained in Section
50 of the Act of 1985.
7. Learned counsel for the petitioner also submits that the
impugned order, passed by the learned Court below, also did not
make any mention about any previous criminal antecedent(s)
against the accused-petitioner, pertaining to offences under the
Act of 1985.
8. Learned counsel for the petitioner placed reliance on the
judgment rendered by the Hon'ble Apex Court in the case of
Sanjeev & Anr. Vs. State of Himachal Pradesh (Criminal
Appeal No. 870 of 2016) decided on 09.03.2022; further
reliance was also placed on the judgments rendered by Co-
ordinate Benches of this Hon'ble Court in the cases of Kalu Ram
v. State of Rajasthan (S.B. Criminal Misc. Bail Application
No. 6775/2021), decided on 24.06.2021; Aasulal v. Union of
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India (S.B. Criminal Misc. Bail Application 7066/2021),
decided on 01.09.2021; Sumerram v. State (S.B. Criminal
Misc. Bail Application No. 10398/2020), decided on
09.12.2020; Sahil Kumar v. State of Rajasthan (S.B. Criminal
Misc. Bail Application No. 3938/2021), decided on 19.09.2022
and; Chunni Lal Vs. State of Rajasthan (S.B. Criminal Appeal
No. 283 of 1990), decided on 02.12.2022.
9. On other hand, learned Public Prosecutor opposed the
submissions made on behalf of the accused-petitioner and
submitted that the accused-petitioner was found to be in a
possession of a commercial quantity of contraband, without any
valid license or permission, and therefore, the learned Court below
has rightly passed the impugned order whereby the bail
application of the accused-petitioner was dismissed, after taking
into due consideration the overall facts and circumstances of the
case, and the evidences placed on record. Thus, as per the
learned Public Prosecutor, the present third bail application ought
not to be entertained by this Court.
10. Heard learned counsel for both parties as well as perused the
record of the case, alongwith the judgments cited at the Bar.
11. This Court observes that the concerned police authorities
recovered the contraband in question, being of a commercial
quantity, from the accused-petitioner, and that there is not a
single fact on record before this Court, which could show the non-
involvement of the accused-petitioner, in the crime in question.
12. This Court further observes after due investigation, the
concerned police authorities found the involvement of the
accused-petitioner in the crime in question, and thus, the learned
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Court below proceeded to frame the charges against the present
accused-petitioner and other accused persons.
13. This Court also observes that the statement rendered by
P.W.6-Gopal Bishnoi, the Seizure Officer in his cross-examination
stated that the contraband in question, of a commercial quantity,
was recovered from the vehicle, wherein the present petitioner
was sitting alongwith the driver (co-accused).
14. This Court further observes that the judgments cited at the
Bar, on behalf of the petitioner, do not render any assistance to
the case of the accused-petitioner.
15. This Court, having regard to the overall facts and
circumstances of the case, especially the recovery of the
commercial quantity of the contraband in question, and the fact
that a direct role has been attributed to the accused-petitioner, in
regard to the crime in question, is not inclined to grant him bail, at
this stage.
16. Consequently, the present third bail application is dismissed.
Needless to say, the observations made hereinabove, at this
stage, shall not prejudice the case of the present petitioner, on
merits, during trial.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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