Richpal @ Richpalaram vs State Of Rajasthan
2023 Latest Caselaw 6134 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous II Bail Application No. 8310/2023

Richpal @ Richpalaram S/o Bhalluram, Aged About 30 Years, R/o Mandala Kallan Ps Phalodi Dist. Jodhpur At Present R/o At The House Of Vinod Near Pilhar Balaji Temple Mahadev Nagar Ps Banad Dist. Jodhpur (At Present Lodged At Central Jail Jodhpur)

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

----Respondent

For Petitioner(s) : Mr. Kunal Bishnoi.

For Respondent(s) : Mr. Mukhtiyar Khan, PP.

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

21/08/2023 This second application for bail under Section 439 Cr.P.C. has

been filed by the petitioner who has been arrested in connection

with F.I.R. No.457/2022 registered at Police Station Chittorgarh,

District Chittorgarh, for offences under Section 8/15 of the NDPS

Act.

As per prosecution, on 01.12.2022, at about 11:42 am, a

Creta car having registration No.RJ-09-CB-4405 was intercepted

by the police team of PS Sadar, during its routine barricading

(nakabandi) at Highway Road Dhanet, District Chittorgarh. Co-

accused Ramesh was found on the wheel of the offending vehicle

whereas co-accused Mahendra was sitting besides him. Huge

quantity of contraband (poppy husk/ straw) weighing 251 kgs.

contained in 13 sacks, was recovered from the offending vehicle.

Co-accused Ramesh and Mahendra in their disclosure statement

(2 of 7) [CRLMB-8310/2023]

recorded under Section 27 of Indian Evidence Act informed that

contraband greater than commercial quantity was procured/

purchased by them from Pankaj @ Pankash son of Ambadas

Bairagi, resident of Peepal Khunta, PS Nahargarh, District

Mandsaur M.P. The co-accused persons further informed that the

contraband was procured/ purchased by them for the present

petitioner. In other words, the contraband recovered was to be

delivered to present petitioner, resident of Mandalakala, PS

Phalodi, District Jodhpur.

The relevant portion of the disclosure statement of one of

the co-accused persons, namely Ramesh recorded under Section

27 of the Indian Evidence Act dated 12.12.2022 is reproduced

below for ready reference:-

"bl le; tSj fgjklr iqfyl vfHk;qDr jes"k firk rstkjke fo"uksbZ mez 22 lky fuoklh iqj[kkokl fpapjyh Fkkuk >aoj ftyk tks/kiqj us eu~ vkbZ-vks- dks LosPNkiwoZd lqpuk nh fd ^^esjs o esjs lkFkh egsUnz firk /kUukjke tkfr tkV mez 22 lky fuoklh /kkj.kkokl Fkkuk f[kaolj ftyk ukxkSj ds dCts "kqnk lQsn jax dh ØsVk dkj uEcj vkj-ts- 28 lh-ch- 4405 ls 02 DohaVy 51 fdyks MksMk pqjk iqfyl us idMk FkkA tks MksMk pqjk ukxkSj esa ,d gksVy ij ystkdj nsuk FkkA ml gksVy dks esa vkids lkFk pydj crkuk pkgrk gqWA"

Learned counsel for the petitioner submitted that in the

present case, no recovery has been made from the present

petitioner. Learned counsel submitted that the petitioner has been

falsely implicated in the present case solely on the basis of

disclosure statements of co-accused persons from whom alleged

recovery of contraband was effected. Learned counsel further

submitted that as per prosecution, calls had been exchanged

between the petitioner and co-accused persons in connection with

(3 of 7) [CRLMB-8310/2023]

commission of alleged crime, however, sans transcript, the same

cannot be treated as corroborative material against the accused-

petitioner.

Reliance was placed on the judgments rendered by Hon'ble

the Supreme Court in the case of Bharat Chaudhary vs. Union

of India reported in 2021 SCC OnLine SC 1235 and Hon'ble

High Court of Punjab and Haryana in the case of Vikrant Singh

vs. State of Punjab (CRM-M-39657 of 2020) and Hon'ble High

Court of Gujarat Yash Jayeshbhai Champaklal Shah vs. State

of Gujarat reported in 2022 SCC OnLine Guj 271.

Lastly, learned counsel submitted that the petitioner is in

judicial custody since 11.12.2022; challan against him has already

been filed; the trial of the case is likely to consume sufficiently

long time.

On these grounds, he implored the Court to enlarge the

petitioner on bail.

Per contra, learned Public Prosecutor opposed the bail

application and submitted that huge quantity of contraband

(poppy husk/ straw) was recovered from the possession of co-

accused persons who in their disclosure statements informed that

the contraband was procured by them as per the directives of the

present petitioner and was to be delivered to him.

Learned Public Prosecutor further submitted that mobile

phones have been recovered from the present petitioner as well as

co-accused persons. Co-accused persons have clearly stated that

fake mobile numbers generated through mobile application, along

with mobile numbers of accused persons were used to establish

(4 of 7) [CRLMB-8310/2023]

contact by them in connection with commission of alleged crime.

Learned Public Prosecutor submitted that disclosure statements

along with recovery of mobile phones, mobile chat/ calls etc. is

required to be treated as a sufficient material to establish live link

between the petitioner and co-accused persons who were found in

possession of contraband (poppy husk/ straw). It was thus,

prayed that the petitioner does not deserve to be enlarged on bail.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

From the perusal of impugned order dated 07.06.2023

passed by Special Judge, NDPS Cases No.1, Chittorgarh, this

Court finds that following criminal cases are pending trial against

present petitioner before competent criminal court:-

izFke lwpuk la[;k ØŒ lŒ varxZr /kkjk eqdnek dk izØe o Fkkuk 01 97@2010 QykSnh 341] 323] 325 HkkŒnaŒlaŒ tSj Vªk;y 02 178@2016 QykSnh 451] 323@34 HkkŒnaŒlaŒ tSj Vªk;y 03 08@2020 QykSnh 279] 304 , HkkŒnaŒlaŒ ,oa tSj Vªk;y 183] 184] 134@187 ,eoh,DV 04 412@2020 QykSnh 8@15 ,uMhih,l ,DV tSj Vªk;y

Section 37 of Narcotic Drugs and Psychotropic Substances

Act, 1985 is reproduced below for ready reference:-

"37. Offences to be cognizable and non- bailable.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless

(5 of 7) [CRLMB-8310/2023]

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]"

Hon'ble the Supreme Court in the case of State of Madhya

Pradesh vs. Kajad reported in (2001) 7 SCC 673, had observed

as under:-

"......Negation of bail is the rule and its grant an exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail, the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause

(b) of sub-section (1) of Section 37 are 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. Liberal approach in the matter of bail under the NDPS Act is uncalled for."

Similarly, Hon'ble the Supreme Court in the case of Union of

India vs. Md. Nawaz Khan reported in (2021) 10 SCC 100

considered the position of law with regard to Section 37 of NDPS

Act and held that the test which the courts are required to apply

while granting bail is that there are reasonable grounds to believe

that the accused has not committed an offence and whether he is

likely to commit any offence while on bail. Considering the

(6 of 7) [CRLMB-8310/2023]

seriousness of offences punishable under the NDPS Act and in

order to curb the menace of drug-trafficking in the country,

stringent parameters for the grant of bail under the NDPS Act

have been prescribed.

Hon'ble the Supreme Court and this Court in the a catena of

judgments was pleased to discuss the mandatory requirement of

recording satisfaction by a Court in the NDPS cases in the light of

the rigors contained in Section 37 of the NDPS Act.

Having considered the rival submissions, facts and

circumstances of the case, Section 37 of the NDPS Act, this Court

finds that while deciding a bail application, the Court on the basis

of the material available on case file, is required to satisfy itself as

to whether there are reasonable grounds for believing that the

accused is not guilty of the offences with which he has been

charged and as to whether, he is not likely to commit offence while

on bail.

Prima facie in the present case, this Court finds that apart

from the disclosure statements of co-accused persons, sufficient

corroboratory evidence in the form of mobile calls/ Whatsapp

calls/ Whatsapp chats, etc. is available on record indicating

involvement of petitioner in commission of alleged crime. The

argument raised on behalf of the petitioner that in the absence of

recording of conversation between the accused persons, the

mobile calls/ Whatsapp calls cannot be treated to be corroboratory

evidence, does not have any force as at this stage, the Court is

only required to prima facie satisfy itself with regard to reasonable

grounds for the involvement of the petitioner in commission of

(7 of 7) [CRLMB-8310/2023]

alleged crime. The call details/ mobile calls/ Whatsapp calls, in

view of the language of Section 37 of the NDPS Act, may be

sufficient to draw a presumption with regard to role played by

accused-petitioner in commission of crime under NDPS Act.

This Court further finds that the petitioner is having criminal

antecedents, even a case under NDPS Act is pending trial against

him. Therefore, it cannot be said that there is no apprehension of

the petitioner committing similar crime/ offence while on bail.

In view of aforesaid discussion, the instant application for

bail stands rejected.

(KULDEEP MATHUR),J tarun goyal

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