Om Prakash vs State Of Rajasthan
2022 Latest Caselaw 15006 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

...

S.B. Criminal Misc. Bail Application No. 16162/2022.

Om Prakash S/o Sh. Gola Ram, Aged About 49 Years, Darol Ki

Dhani, Hemnagar, Joliyali, Jhanwar P.S., Dist. Jodhpur.

(Lodged In Dist. Jail, Pali).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Ashok Kumar Khilery. For Respondent(s) : Mr. Vikram Sharma, PP.

HON'BLE MR. JUSTICE FARJAND ALI

Order

20/12/2022

1. The instant bail applications has been filed under Section 439

Cr.P.C. on behalf of accused-petitioner Om Prakash S/o Gola Ram.

The petitioner has been arrested in connection with FIR No.

122/2022 registered at Police Station Rohat, District Pali for the

offence under Section 8/17, 8/18 & 8/29 of the NDPS Act.

2. Learned counsel for the petitioner submits that petitioner has

nothing to do with the alleged offences. As per the story of the

prosecution, 4.100 kilograms of contraband opium milk was

recovered from the possession of accused persons Vishal son of

Kishore and Vishal son of Pramendra. Name of the petitioner does

not find place in the seizure memo, parcha kayami report and

(2 of 3) [CRLMB-16162/2022]

other memos prepared on the spot. He has been made accused

simply on the basis of suspicion which cannot be taken as proof.

He further submits that if at the time of effecting the recovery, the

principal accused would have disclosed regarding the complicity of

the petitioner then it would have been a different situation

because instantaneous and spontaneous disclosure regarding

alleged transaction may come within the premise of doctrine of res

gestae but no such evidence came to light except confession,

nothing has been recovered or discovered, therefore, the contents

of the said information cannot be taken into evidence as the same

is beyond the arena of Section 27 of the NDPS Act. He strongly

places reliance upon the judgment passed by Privy Council in the

case of Pulukuri Kottaya & Others Vs. Emperor (AIR 1947 PC

67) and thus, submits that since nothing is recovered or

discovered, the said confession cannot be taken as an admissible

piece of evidence. He further submits that the trial is likely to take

long time to conclude. No fruitful purpose would be served by

keeping the accused-petitioner behind the bars till disposal of the

case. He further asserts that in view of absence of any legally

admissible evidence to corroborate the allegation, the embargo

contained contained under Section 37 of NDPS Act would not be

attracted.

3. Per contra, learned Public Prosecutor has vehemently

opposed the bail application.

4. Heard. Considering the arguments advanced by the counsel

for the parties, more specifically the argument regarding non-

application of the fetter contained in Section 37 of NDPS Act and

(3 of 3) [CRLMB-16162/2022]

looking to the overall facts and circumstances of the case, this

court deems it just and proper to enlarge the accused-petitioner

on bail.

5. Accordingly, the bail application under Section 439 Cr.P.C. is

allowed and it is ordered that the accused-petitioner named above

shall be enlarged on bail provided he furnishes a personal bond in

the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to

the satisfaction of the learned trial Judge for his appearance

before the court concerned on all the dates of hearing as and

when called upon to do so.

(FARJAND ALI),J 340-Mohan/-

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