Rajasthan High Court - Jodhpur

Udai Lal vs State Of Rajasthan on 20 October, 2022

Bench: Manoj Kumar Garg

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous II Bail Application No. 11022/2022

Udai Lal S/o Sh. Magni Ram Menariya, Aged About 31 Years, Jawda, Nimbahera Sadar P.s., Nimbahera, Dist. Chittorgarh. (Lodged In Dist. Jail, Chittorgarh).

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


For Petitioner(s)          :     Mr. B. Ray Bishnoi
For Respondent(s)          :     Mr. A.R. Choudhary, PP
                                 Mr. Tulsi Ram, CI
                                 SHO, Police Station Nibahera Sadar



         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                     Order

Order Reserved on :                  11/10/2022
Date of pronouncement:                20/10/2022

The petitioner has been arrested in connection with FIR No.

156/2021 of Police Station Sadar, Distt. Chittorgarh for the offence

punishable under Sections 8/15 & 8/29 NDPS Act. He has

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

Counsel for the petitioner submits that the first bail

application was not pressed with liberty to file fresh bail

application after recording of statement of Investigating officer and

seizure officer. Counsel submits that now the seizure officer has

been examined before the Court as PW/1 and in his statement,

there are material contradictions and omissions. He submits that

at the time of recovery, the petitioner was not present and he has

been implicated only on the basis of call details, CDR and

(2 of 5) [CRLMB-11022/2022]

certificate under Section 65B of the Act. It is argued that PW/1

seizure officer in his cross-examination clearly mentions that he

had obtained the Whatsapp call log but he did not obtain the

certificate under Section 65B from the service provider. 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 Surinder Kumar Khanna Vs.

Intelligence officer reported in 2018(3) R.Cr.D. 188 (SC) so also

order passed by co-ordinate Bench of this Court in S.B. Criminal

Misc. Bail Application No. 4709/2021 decided on 07.04.2021, S.B.

Criminal Misc. Bail Application No. 1615/2020 decided on

24.02.2020, S.B. Criminal Misc. Bail Application No. 3845/2021

decided on 19.05.2021, S.B. Criminal Misc. Bail Application No.

10347/2020 decided on 21.09.2020, S.B. Criminal Misc. Bail

Application No. 5028/2021 decided on 23.07.2020 and this Court

in S.B. Criminal Misc. Bail Application No. 1052/2018 decided on

24.01.2018, S.B. Criminal Misc. Bail Application No. 1459/2018

decided on 05.05.2018 and S.B. Criminal Misc. Bail Application No.

3327/2018 decided on 16.04.2018.

Per contra, learned Public Prosecutor vehemently opposed

the bail application and submitted that Mohan lal is the main

accused who was arrested on the spot and he had purchased the

contraband from the present petitioner. There are records of voice

calls made to each other on Whatsapp through their mobile.

Moreover, the recovered contraband is commercial quantity,

therefore, the bail application may be rejected.

Heard learned counsel for the parties and perused the

material available on record.

(3 of 5) [CRLMB-11022/2022]

From the examination of challan papers and material on

record, it is revealed that the contraband was recovered from the

main accused Mohan lal who in his statement has stated that he

had purchased the contraband from the present petitioner. The co-

accused Mohan lal had saved the number of petitioner as Hukma

Ram and both the accused had called each other on whatsapp. The

Investigating officer has also obtained certificate under Section

65B of Evidence Act. It has also come on record that location of

both the accused was found in the village of the petitioner. Since

the recovered contraband is commercial quantity, therefore,

Section 37 of the Act is also attracted in this case. So far as the

orders cited by counsel for the petitioner are concerned, in those

cases, there were no concrete evidence with regard to call details

whereas, in the present case, there is prima facie evidence of

whatsapp voice call between the petitioner and co-accused to

connect him with the crime.

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. It was

further held that whether the accused were traveling along with

the co-accused, CDR analysis of the mobile phones which show

regular touch with the other accused, etc are relevant

considerations at the time of consideration of bail application.

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

confession statement of the co-accused there are other materials

(4 of 5) [CRLMB-11022/2022]

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 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."

(5 of 5) [CRLMB-11022/2022]

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 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."

No case for bail is made out for enlarging the petitioner on

bail. Accordingly, the bail application is hereby rejected. However,

the trial court is directed to expedite the trial.