Jitendra Sharma vs Union Of India
2023 Latest Caselaw 6135 Raj

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
  S.B. Criminal Miscellaneous Bail Application No. 16671/2021



Ramawatar S/o Ram Pyara Jat, Aged About 41 Years, Kundera,
P.s. Kotwali Sawai Madhopur, Dist. Sawai Madhopur. (At Present
Lodged In Dist. Jail, Chittorgarh).


                                                                    ----Petitioner
                                      Versus
The Union Of India, Through PP
                                                                  ----Respondent
                                  Connected With

      S.B. Criminal Miscellaneous Bail Application No. 464/2022

Ram Prakash S/o Sh. Bhanwar Lal Jat, Aged About 30 Years,
Naradana, P.s. Mundwa, Teh. Jayal, Dist. Nagaur. (Lodged In
Dist. Jail, Chittorgarh).
                                                                    ----Petitioner
                                      Versus
State, Through PP
                                                                  ----Respondent
   S.B. Criminal Miscellaneous Bail Application No. 7833/2023

Jitendra Sharma S/o Omprakash Sharma, Aged About 28 Years,
R/o    Kundera      Police       Station   Kundera        Dist.   Swaimadhopur.
( Lodged In Distt. Jail, Chittorgarh)

                                                                    ----Petitioner
                                      Versus

Union Of India, Union Of India

                                                                  ----Respondent


For Petitioner(s)            :     Mr. Anand Purohit, Sr. Advocate with
                                   Mr. Mayank Roy.
                                   Mr. Bhagirath Ray Bishnoi.
For Respondent(s)            :     Mr. M.R. Pareek, Spl. PP for NCB.




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            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                     ORDER

21/08/2023 These applications for bail under Section 439 Cr.P.C. have

been filed by the petitioners who have been arrested in connection

with F.I.R. No.07/2021 registered at Police Station NCB, Jodhpur,

for the offences punishable under Sections 8/20 and 8/29 of the

NDPS Act.

As per prosecution, on 25.05.2021, competent authority of

Narcotics Control Bureau, received an information that three

persons namely, Hazrat Ali, Badrudin and Gaina Ram are

transporting 5-6 quintals of cannabis (ganja) in a truck bearing

No.RJ-19-GE-3078. The contraband loaded in the aforementioned

truck was to be delivered to petitioners- Ramawatar and Ram

Prakash at Sawai Madhopur. On receiving aforsaid information, the

offending vehicle was intercepted at Ochadi Toll Plaza, Chittorgarh

by the officials of NCB. During search of the offending vehicle,

contraband (cannabis/ ganja) weighing 564 kgs 590 grams was

recovered from 21 plastic bags. As per prosecution, the recovered

contraband was loaded in the offending vehicle by petitioner-

Jitendra Sharma.

Learned counsel for the petitioners submitted that the

petitioners have been falsely implicated in the present case.

Learned counsel submitted that the petitioner have been

implicated in the present case solely on the basis of the

confessional statements of co-accused persons under Section 67

of the NDPS Act. Learned counsel submitted that apart from the

confessional statements of co-accused persons, there is no other

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direct/ corroboratory evidence available on record, indicating

involvement of the petitioners in the commission of alleged crime.

Reliance was placed on the judgment of Hon'ble the Supreme

Court in the case of Tofan Singh vs. State of Tamil Nadu

reported in (2021) 4 SCC 1.

It was further submitted that the petitioners are in judicial

custody and the trial of the case will take sufficiently long time,

therefore, the benefit of bail may be granted to the accused-

petitioners.

Per contra, learned Public Prosecutor appearing for NCB

vehemently opposed the bail applications. Learned Public

Prosecutor submitted that truck bearing No. RJ-19-GE-3078 was

intercepted by the officials of NCB on receiving a specific

information. Learned Public Prosecutor submitted that co-accused

Badrudin, Hajrat Ali and Gaina Ram were found sitting in the

offending truck, which was loaded with contraband greater than

the commercial quantity.

Learned Public Prosecutor submitted that apart from the

confessional statements of co-accused persons recorded under

Section 67 of the NDPS Act, there are certain call details between

the accused persons and the petitioners, available on record

indicating their involvement in the commission of crime. To

substantiate this contention, attention of the Court was drawn

towards the charge sheet/complaint submitted by the

investigating agency before competent criminal court, wherein in

detail, the analysis with regard to call details between the accused

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persons has been made and the petitioners have been found guilty

of offences under NDPS Act.

On these grounds, learned Public Prosecutor submitted that

keeping in view the embargo contained in Section 37 of the NDPS

Act, the petitioners do not deserve to be enlarged on bail.

Heard learned counsel for the petitioners and learned Public

Prosecutor. Perused the material available on record.

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

(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:-

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"......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

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 a catena of

judgments were 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 facts and circumstances of this case, this

Court prima facie finds that contraband above commercial quantity

was recovered from the offending vehicle. This Court prima facie

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also finds that apart from the statements of co-accused persons,

sufficient corroboratory evidence indicating involvement of present

petitioners in the commission of crime is available on record.

In the prima facie opinion of this Court, the mandate of

Section 37 would be applicable in the present case and therefore,

the petitioners are not entitled to be enlarged on bail.

In the result, instant applications for bail are hereby

rejected.

(KULDEEP MATHUR),J tarun goyal

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