Rajasthan High Court - Jodhpur

Mangi Lal vs State Of Rajasthan ... on 13 April, 2023

Bench: Farjand Ali

[2023/RJJD/010234]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Miscellaneous 2nd Bail Application No. 3364/2023

Mangi Lal S/o Jeetmal, Aged About 35 Years, R/o Fatehpura Ps Bhadesar Dist. Chittorgarh Raj. (Presently Lodged In Dist. Jail Chittorgarh)

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

----Respondent

For Petitioner(s) : Mr. Neeraj Kumar Gurjar

For Respondent(s) : Mr. Gaurav Singh, PP

HON'BLE MR. JUSTICE FARJAND ALI Order

13/04/2023

1. The instant bail application has been filed by the petitioner

Mangi Lal S/o Jeetmal under Section 439 Cr.P.C against the order

impugned dated passed by learned court below in connection with

FIR No.101/2018 registered at Police Station Bhadesar, District

Chittorgarh for the offences under Sections 8/15 of NDPS Act.

2. Learned counsel for the petitioner submits that a false case

has been foisted against the petitioner. He has nothing to do with

the alleged offences and no useful purpose would be served by

keeping him behind the bars. It is the admitted case of the

prosecution that neither the petitioner was found present at the

crime scene nor any incriminating material or contraband was

recovered from his possession. There is not an iota of evidence to

show or suggest the complicity of the petitioner in commission of

the crime. He has been made accused only on the basis of the

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information received under Section 42 of NDPS Act, however,

neither he has right, title, interest or possession over the property

from which the contraband was recovered nor is there anything on

record from which involvement of the present petitioner can be

presumed, therefore, the fetter contained under Section 37 of the

NDPS Act does not come in way of releasing the petitioners on

bail.

3. Per contra, learned Public Prosecutor opposes the bail

application on the ground that the recovered contraband weighed

151 kilograms in total and that is way above the commercial

quantity demarcated for poppy husk and therefore, in view of the

bar contained under Section 37 of NDPS Act, no case of bail is

made out.

4. Heard. Perused the material available on record.

5. As per the story of the prosecution, certain quantity of poppy

husk was recovered from a bara ('an open land for leashing

animals'). As per the story set out by the Seizing Officer of the

present case, the bara belongs to present petitioner. The Sarpanch

of gram Akola, Panchayat Samiti Bhadesar, District Chittorgarh

affirmed the fact that according to the record, no patta has been

issued in regard to the bara in question. No document whatsoever

has been collected to establish the fact that the bara belongs to

the present petitioner. Admittedly when the alleged recovery was

made, no one was found present at the spot and the contraband

was lying in an abandoned condition. The petitioner was not

present at the spot.

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6. As per the statements of witnesses Uday lal, Nathu Lal,

Bhajja and Ramlal, the said bara does not belong to the petitioner

and no one is using the same since a long time. It is an open and

abandoned place which does not have any boundary or gates and

is accessible to all. These statements lead to the safe inference

that there was no exclusive entry/exit for anyone and the place

was uninhabited, thus, anybody could have accessed the place at

any time.

7. Recovery has been effected from a place for which no oral or

documentary evidence regarding ownership or possession of the

petitioner has been furnished and as such the contraband was not

recovered from the exclusive and conscious possession of the

petitioner and he was not present at the spot at the time of

recovery. Then, in such circumstances the liability for recovery of

contraband from an abandoned place cannot be fastened upon the

petitioner. To foist a case against the accused, it is imperative

upon the prosecution to show that the said accused was having

exclusive and conscious possession of the bara when the

contraband was recovered. It is now well-settled law that even the

initial burden lies upon the prosecution to establish the charges

against the accused since on the basis of the said charges his

liberty is being infringed and one can only be deprived from the

said right only in accordance with the procedure established by

law and the procedure of law is well settled that there should be

some evidence, either oral or documentary, to show the

involvement of accused in the commission of crime.

[2023/RJJD/010234] (4 of 6) [CRLMB-3364/2023]

8. In the case of Om Prakash vs. State of Rajasthan

reported in (2009) 10 SCC 632, Hon'ble the Apex Court has held

as under:

"7. A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is uncertain. As a matter of fact PW.3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further required to show the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his brothers, their children and their parents were living therein. Admittedly, there is no evidence as to the appellants exclusive possession."

9. In a recent ruling titled Mohd Muslim @ Hussain V. State

(NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of

2023 order dated 28.03.2023, Hon'ble the Supreme Court has

discussed Section 37 of the NDPS Act in detail and has allowed the

accused in that matter to be released on bail while holding that

the impediment contained under Section 37 is not a bar to grant

of bail in cases where there is undue delay in conclusion of trial.

The paragraph of the afore-said judgment relevant to the present

matter is reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on

[2023/RJJD/010234] (5 of 6) [CRLMB-3364/2023]

bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws

- be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the

[2023/RJJD/010234] (6 of 6) [CRLMB-3364/2023]

bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."

10. Considering the arguments advanced by the counsel for the

parties and looking to the overall facts and circumstances of the

case, more particularly the facts that the bar contained under

Section 37 of the NDPS Act is not attracted in this case and there

seems to be no reasonable ground to believe that the bara

belongs to the present petitioner, this court deems it just and

proper to enlarge the accused-petitioner on bail.

11. It is to be made clear, in unambiguous terms, that the effect

of this order is limited to the justifiable disposal of the present bail

application and shall not influence the learned trial judge in

reaching a conclusion at the culmination of the trial.

12. Accordingly, the second bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner

Mangi Lal S/o Jeetmal 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.