Rajasthan High Court
Avinash @ Cheeku Son Of Shri ... vs State Of Rajasthan on 21 October, 2022
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 15981/2022
Ranjit S/o Darshan Singh, R/o Village Sohal Jagir Tehsil Shahkot,
PS Shahkot, District Jalandhar Punjab
(Accused Presently Confined In Central Jail Ajmer)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Ms. Sonia Gill with
Mr. Sunil Kumar Gill
For Respondent(s) : Mr. Nainaram Saran, PP
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
21/10/2022
Counsel for the petitioner submits that the petitioner has
been falsely implicated in this matter and the petitioner is in
custody since 12.06.2020.
The first bail application of the petitioner being S.B.
Criminal Miscellaneous Bail Application No.8085/2021 was
dismissed by this Court vide order dated 24.05.2021, which reads
as under:-
"1. The present bail application has
been filed under Section 439 Cr.P.C.
The petitioner has been arrested in
connection with FIR No. 103/2020
Registered at Police Station
Shrinagar District Ajmer for the
offence(s) under Section 8 & 15 of
NDPS Act.
2. Counsel for the petitioner
submits that the petitioner has been
falsely implicated in this matter.
(2 of 6) [CRLMB-15981/2022]
Counsel further submits that father
and the wife of the petitioner have
expired and the petitioner have
small kids and there is no other
person except him to look after his
children. Counsel further submits
that owner of the truck has already
been released on bail. Counsel
further submits that recovered
contraband articles have been sent
for FSL after a delay of six days.
Counsel further submits that in this
matter the Investigating agency has
not complied with the provisions of
Sections 42 & 50 of the NDPS Act.
3. Learned Public Prosecutor has
opposed the bail application and
submitted that 240 kg 'Poppy Straw'
has been recovered from the
possession of the petitioner and co-
accused person and the petitioner is
having criminal antecedents.
4. The Hon'ble Supreme Court in
the matter of State of Kerala Vs.
Rajesh Etc. reported in (2020) 12
SCC 122 has held as under:-
"20. The scheme of Section 37
reveals that the exercise of
power to grant bail is not only
subject to the limitations
contained Under Section 439
of the Code of Criminal
Procedure, but is also subject
to the limitation placed by
Section 37 which commences
with non-obstante clause. The
operative part of the said
Section is in the negative form
prescribing the enlargement of
bail to any person Accused of
commission of an offence
under the Act, unless twin
conditions are satisfied. The
first condition is that the
prosecution must be given an
opportunity to oppose the
application; and the second, is
that the Court must be
satisfied that there are
reasonable grounds for
(3 of 6) [CRLMB-15981/2022]
believing that he is not guilty
of such offence. If either of
these two conditions is not
satisfied, the ban for granting
bail operates.
21. The expression
"reasonable grounds" means
something more than prima
facie grounds. It contemplates
substantial probable causes for
believing that the Accused is
not guilty of the alleged
offence. The reasonable belief
contemplated in the provision
requires existence of such
facts and circumstances as are
sufficient in themselves to
justify satisfaction that the
Accused is not guilty of the
alleged offence. In the case on
hand, the High Court seems to
have completely overlooked
the underlying object of
Section 37 that in addition to
the limitations provided under
the Code of Criminal
Procedure, or any other law
for the time being in force,
regulating the grant of bail, its
liberal approach in the matter
of bail under the NDPS Act is
indeed uncalled for.
22. We may further like to
observe that the learned
Single Judge has failed to
record a finding mandated
Under Section 37 of the NDPS
Act which is a sine qua non for
granting bail to the Accused
under the NDPS Act.
23. The submission made by
learned Counsel for the
Respondents that in Crime No.
14/2018, the bail has been
granted to the other Accused
persons(A-1 to A-4), and no
steps have been taken by the
prosecution to challenge the
grant of post-arrest bail to the
other Accused persons, is of
no consequence for the reason
that the consideration
prevailed upon the Court to
grant bail to the other Accused
persons will not absolve the
(4 of 6) [CRLMB-15981/2022]
act of the Accused
Respondent(A-5) from the
rigour of Section 37 of the
NDPS Act.
24. The further submission of
the learned Counsel for the
Respondents that they have
been falsely implicated in
Crime No. 19/2018 for the
reason that the batchmates of
the excise official, Babu
Varghese was convicted in the
corruption case on the trap
being laid down by the
Respondent-Shajimon(A-1) is
only a conjecture of self-
defence, and no inference
could be drawn of false
implication, more so when in
Crime No. 19/2018 and
14/2018, charge-sheets have
been filed after investigation
and the matter is listed before
the learned trial Judge for
framing of the charge where
the Accused Respondents
certainly have an opportunity
to make their submissions.
25. That apart, in the
application which was filed
before the learned Single
Judge of the High Court by the
Appellant Under Section 482
Code of Criminal Procedure,
the learned Single Judge has
also prima facie accepted that
error has been committed in
granting bail to the Accused
Respondents as observed in
para 16 of the impugned
judgment as under:
On going through the orders
granted on 10.5.2019 allowing
bail applications of A1 and A3
on the one hand and 5th
Accused on the other hand in
NDPS crime Nos. 19/2018 and
14/2018 respectively, I find
that the bail was granted by
the Court after being cognizant
of the principles laid down in
Section 37 of the Act whether
it ultimately turned out to be
right or wrong. May be as
regards 3rd Accused was
(5 of 6) [CRLMB-15981/2022]
concerned, order was passed
under misconception of facts.
Likewise, the criminal
antecedents concerning the
first Accused did not fall to the
notice of this Court. What
could at the most be said of
the order passed by this Court
is that it was erroneous or it
did not involve application of
mind. But then the question
arises is whether the same
court could under law
reconsider the facts invoking
Section 482 of the Code. I am
of the opinion that the remedy
of the State lay in challenging
the orders of this Court, if it
was really aggrieved, before a
superior forum and not before
the same court. Therefore,
accepting the argument of the
learned Counsel for the
Accused, I hold that none of
the applications seeking to
recall the order of this Court is
maintainable under law.
26. In the result, the appeals
are allowed and the impugned
order passed by the High
Court releasing the
Respondents on bail is hereby
set aside. Bail bonds of the
Accused Respondents stand
cancelled and they are
directed to be taken into
custody. The trial Court is
directed to proceed and
expedite the trial.
27. Pending application(s), if
any, stand disposed of.
5. Heard counsel for the parties and perused
the record.
6. In view of the aforesaid facts and the
statutory restrictions under Section 37 of the
N.D.P.S. Act, I am not inclined to grant bail to
the petitioner.
7. Accordingly, this bail application filed by
the petitioner is dismissed."
Learned Public Prosecutor has opposed the bail application.
(6 of 6) [CRLMB-15981/2022]
Heard counsel for the parties and perused the record.
In the facts and circumstances of the present case,
considering the rejection of first bail application filed on behalf of
the petitioner vide order dated 24.05.2021, without expressing
any opinion on the merits of the case, no case is made out to
release the petitioner on bail under Section 439 Cr.P.C.
Hence, this second bail application stands dismissed.
(INDERJEET SINGH),J
AARZOO ARORA /105
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