Rajasthan High Court
Shailen Chandra Rai Son Of Sharat ... vs State Of Rajasthan on 13 January, 2023
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous III Bail Application No. 17418/2021
Shailen Chandra Rai Son Of Sharat Chandra Rai, Aged About 36
Years, R/o Dakshin Ambari, P.S. Pundi Badi, Dist. Kooch Bihar,
West Bengal. Presently R/o Paani Ke Pyau Ke Paas, Jhalana Kachi
Basti, P.S. Malviya Nagar, Dist. Jaipur. (Presently Confined At
Central Jail Jaipur).
----Applicant
Versus
State Of Rajasthan, through P.P.
----Respondent
Connected With
S.B. Criminal Miscellaneous II Bail Application No. 1872/2022
Lal Chand Bairwa S/o Late Shri Shiv Narayan Bairwa, Aged
About 34 Years, R/o Shikariyon Ki Dhani Agra Railway Line Goner
Railway Crossing Behind Power House Kho Nagoriyan Jaipur Raj.
(At Present Accused Confined In Central Jail Jaipur).
----Applicant
Versus
State Of Rajasthan, through PP
----Respondent
For Applicant(s) : Mr. Mohit Sharma &
Mr. Nirmal Kumar Sharma
in CRLMB No.17418/2021
Mr. Rajendra Singh Tanwar
in CRLMB No.1872/2022
For State : Mr. Mangal Singh Saini, P.P.
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
13/01/2023
1. Applicants have filed these third and second bail applications
under Section 439 of Cr.P.C.
2. F.I.R. No.415/2020 was registered at Police Station Chaksu,
(2 of 3) [CRLMB-17418/2021]
Jaipur City (South) for offence under Section 8/20 of Narcotic
Drugs and Psychotropic Substances Act, 1985.
3. It is contended by counsel for the accused-applicant-Shailen
Chandra Rai in Criminal Misc. Third Bail Application
No.17418/2021 that applicant-Shailen Chandra Rai has remained
in custody for a period of 2 years and 3 months. Out of 17
witnesses, only 4 witnesses have been examined. It is also
contended that independent witness has turned hostile. From the
recovery memo, it is revealed that only leaves and stems were
seized. There was no seizure of any fruiting tops of the Cannabis
plant, thus the material that was seized, would not fall within the
definition of Ganja. It is further contended that applicant is not
having any criminal antecedents.
4. Counsel for the applicants have placed reliance on various
judgments passed by the Hon'ble Apex Court in the case of
"Mukesh vs. The State of Rajasthan" (Criminal Appeal
No.824/2021, arising out of SLP (Crl.) No.4089/2021), "Amit
Singh Moni vs. State of Himachal Pradesh" (Criminal Appeal
No.668/2020, arising out SLP (Criminal) No.3813/2020) and
"Sanjeet Kumar Singh @ Munna Kumar Singh vs. State of
Chhattisgarh" (Criminal Appeal No.871/2021).
5. It is contended by counsel for the applicant-Shailen Chandra
Rai that recovery was made from three bags and separate sample
was not drawn from each bag. Recovery was made after sunset
and the necessary formalities under the NDPS Act were not
followed by the Seizure Officer.
6. It is contended by counsel for the accused-applicant-Lal
Chand Bairwa in Criminal Miscellaneous Second Bail Application
(3 of 3) [CRLMB-17418/2021]
No. 1872/2022 that applicant-Lal Chand Bairwa was only an auto
driver. He was not having any conscious possession of the
recovered articles.
7. Learned Public Prosecutor has opposed these bail
applications.
8. I have considered the contentions.
9. Taking note of the fact that independent witness has turned
hostile; in the recovery memo itself, it is mentioned that leaves
and stems were recovered and there is no mention of any fruiting
tops; also taking note of the fact that applicants have remained in
custody for a period of 2 years and 3 months, out of 17 witnesses,
only 4 witnesses have been examined; applicants are not having
any criminal antecedents and trial is bound to take time, hence, I
deem it proper to allow these bail applications.
7. These third and second bail applications are accordingly
allowed and it is directed that accused-applicants shall be released
on bail provided they furnish a personal bond in the sum of
Rs.1,00,000/- (Rupees One Lac Only) together with two sureties
in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each to
the satisfaction of the learned Trial court with the stipulation that
they shall appear before that Court and any Court to which the
matter is transferred, on all subsequent dates of hearing as and
when called upon to do so.
8. Copy of this order be placed in the connected file.
(PANKAJ BHANDARI),J
AMIT/1-2
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