Rajasthan High Court - Jodhpur

Bhikharam vs State Of Rajasthan ... on 2 August, 2023

Bench: Farjand Ali

[2023:RJ-JD:24648]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 9387/2023

Bhikharam S/o Sonaram, Aged About 33 Years, R/o Udaniyo Ki Dhani, Sawrij, P.s. Phalodi, Dist. Jodhpur. (Presently Lodged At Central Jail, Bikaner)

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

----Respondent

For Petitioner(s) : Mr. M.L. Bishnoi For Respondent(s) : Mr. S.K. Bhati, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

02/08/2023

1. The instant second application for bail has been filed under

Section 439 Cr.P.C. on behalf of the petitioner Bhikaram, who is in

custody in relation to F.I.R. No.131/2020, Police Station Nal,

District Bikaner, for the offence under Sections 8/22 & 29 of the

NDPS Act. The first bail application of the petitioner came to be

rejected by this Court vide order dated 20.12.2022 (S.B. Criminal

Misc. Bail Application No.16099/2022) while giving liberty to the

petitioner to renew his prayer after the statement of Manoj Kumar,

Investigating Officer is recorded in the trial and now, the

statement of Shri Manoj Kumar, Investigating Officer has been

recorded by the learned trial Court on 17.07.2023. Hence, the

present bail application.

2. Briefly stated the facts of the case are that on 31.10.2020,

the police team of Police Station Nal, District Bikaner intercepted a

vehicle bearing registration number DL 6CP 0323 and upon

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search, certain quantity of medicinal drugs was found in the Car.

The Car was driven by one Chamkor Singh and Nashtar Singh @

Chhatri was sitting by his side and a person sitting on the rear

side was Harpreet Singh @ Sarbar Singh. Huge quantity of Tablet

Tramadol and Radol along with other psychotropic substances

were recovered from the Car. All these three persons were

apprehended at the spot. It is noticeable that no disclosure

statement was made by any of three persons with regard to

procurement of the seized drugs at the place of seizure.

3. Learned counsel for the petitioner submitted that during the

course of investigation, the accused apprehended from the spot

made a disclosure to the police in custody that drugs in the form

of Tablets were supplied to them by the petitioner. He further

submits that a disclosure statement was made by the co-accused

Harpreet Singh while he was in police custody which has been

taken as a piece of evidence in the form of information under

Section 27 of the Indian Evidence Act and based on it; the

petitioner was arrested. The Investigating Officer Manoj Kumar

has been examined during the trial as P.W. 1, who candidly admits

that in the information allegedly furnished under Section 27 of the

Evidence Act only the name of Bhikaram was mentioned, his

father's name or residential address were not mentioned; he also

admits that no Mobile or Sim was recovered though he states that

as per the information furnished by the co-accused Harpreet a

letter was sent by him to the Service Provider Company for

procurement of the CDR, however, he admits that uptill the

completion of investigation; no such details or call details were

received by him. He also admits that in the call data record

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there is no description regarding communication between the

petitioner and the three accused persons who were apprehended

at the spot. Admitting further, he stated that he did not know

regarding the conversation which took place between the

petitioner and the co-accused persons and no record was found in

this regard.

4. In this view of the matter, it is appearing that except the

information furnished under Section 27 of the Evidence Act by the

accused-persons to police officer during their custody with police,

there is nothing on record which could connect the petitioner

directly or indirectly with the alleged crime. The evidentiary value

of the aforesaid statement did not require to be adjudicated at this

stage and even this court itself feels to refrain from passing any

observation in this regard as the same may put an adverse impact

on the future course of the trial court however tentatively, for the

purpose of satisfaction of the embargo contained under Section

37of the NDPS Act it is deemed appropriate to accede to the

prayer of bail as he is in custody since around three years.

5. In a recent judgment passed by the Hon'ble Supreme Court

in the case titled as Mohd Muslim @ Hussain V. State (NCT OF

DELHI) the embargo of Section 37 of the NDPS Act has been

dealt with. 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 bail. What is meant by "not guilty" when all the evidence is

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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.

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

6. Prima facie the submission made by the learned counsel for

the applicant-petitioner that the applicant is not guilty of offence

and there is a serious doubt regarding genuineness of the

information received under Section 27 of the Evidence Act seems

to be worth considering and, in my view, the fetter contained

under Section 37 of NDPS Act shall not come in way of this court

while entertaining the bail plea.

7. Considering the arguments advanced by the counsel for the

parties and looking to the overall facts and circumstances of the

case, it is deem just and proper to enlarge the accused-petitioner

on bail.

8. Consequently, the second bail application is allowed. It is