Rajasthan High Court - Jodhpur
Hitesh Giri vs State Of Rajasthan on 13 January, 2023
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous II Bail Application No. 10487/2022
Suraj Giri S/o Lal Giri, Aged About 39 Years, B/c Goswami R/o
Sezpuriya Nai Abadi Ps Mandsaur Dist. Mandsaur M.p. (Lodged
In Dist. Jail Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
Connected With
S.B. Criminal Miscellaneous III Bail Application No. 10488/2022
Hitesh Giri S/o Dayal Giri, Aged About 27 Years, B/c Goswami R/
o Rozpuriya Nai Abadi Ps Mandsaur Dist. Mandsaur M.p. (Lodged
In Dist. Jail Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Petitioners : Mr. Vijay Raj Bishnoi
For Respondents : Mr. A.R. Choudhary PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reserved on 12/01/2023
Pronounced on 13/01/2023
1. These criminal misc. bail applications under Section 439
Cr.P.C. seeking release of the petitioners herein on bail.
2. The petitioners have been arrested in connection with FIR
No.369/2020 registered at Police Station Nimbahera Sadar, District
Chittorgarh for the offences under Sections 8/15, 8/25 & 8/29 of
the NDPS Act, 1985.
(2 of 6) [CRLMB-10487/2022]
3. The first bail application preferred on behalf of the present
petitioner-Siraj Giri & Hitesh Giri, bearing S.B. Criminal
Miscellaneous Bail Application No. 2406/2021 & 2405/2021,
respectively, were dismissed as not pressed, at that stage, by this
Court vide order dated 22.04.2021.
3.1 The second bail application preferred on behalf of petitioner-
Hitesh Giri, bearing S.B. Criminal Miscellaneous Bail Application
No. 7462/2021 was dismissed as not pressed by this Court vide
order dated 04.09.2021, with liberty to approach this Court after
recording of the statement of the Seizure Officer, before the
learned Court below.
4. Learned counsel for the petitioner submitted that the
statement of the concerned Seizure Officer, namely, Anil Saran
(PW-3) has been recorded before the learned Court below; in his
statement, he has not supported the version of the prosecution.
4.1 Learned counsel further submitted that in light of the same,
fresh bail applications were moved on behalf of the present
petitioners before the learned Court below, both of which came to
be dismissed vide the impugned orders dated 07.07.2022; hence,
the present bail applications have been preferred on behalf of the
petitioners.
5. Learned counsel for the petitioners also submitted that there
is no material available on record to connect the present
petitioners with the alleged crime in question.
6. Learned counsel for the petitioners further submitted that
the similarly situated co-accused, namely, Anil Puri has already
been enlarged on bail by a coordinate Bench of this Hon'ble Court
vide order dated 07.06.2021 passed in S.B. Criminal Misc. Bail
Application No.7463/2021; the said order reads as under:
(3 of 6) [CRLMB-10487/2022]
"The instant bail application has been filed under
Section 439 Cr.P.C. on behalf of the petitioner, who is
in custody in relation to F.I.R. No.369/2020, Police
Station Sadar Nimbahera, District Chittorgarh, for the
offences under Sections 457 and 380 IPC. Heard
learned counsel for the petitioner and learned Public
Prosecutor. Perused the challan papers.
The officer in charge of P.S. Sadar, Nimbahera
conducted Nakabandi on 4.11.2020 and stopped a
Bolero Vehicle No.MP04.CK.2835 in which, two
persons namely Soorajgiri and Hiteshgiri were present.
It is stated that when the search was undertaken, 148
Kgs. of contraband poppy straw was recovered from
therein. Both these accused persons were arrested. As
per the material available on record, when the accused
from whose possession, the contraband was recovered
i.e. Hiteshgiri and Soorajgiri were interrogated under
Section 27 of the Evidence Act on 08.11.2020, they
did not name the petitioner as the supplier of the
contraband. However, when they were again
interrogated on 10.11.2020, they divulged that the
poppy straw in question had been procured from the
petitioner.
A perusal of the challan papers and the
conclusion drawn in the charge-sheet indicates that
neither any mobile phone was recovered from the
petitioner nor any call details pertaining to the
petitioner, have been collected by the Investigating
Officer during investigation. Thus, the only evidence as
against the petitioner remains in the form of the
interrogation notes of the co-accused recorded by the
Police Officer during investigation. The evidentiary
value of such interrogation notes is questionable. As
per the order rejecting bail, two previous cases are
registered against the petitioner but neither involve
the offence under the NDPS Act.
(4 of 6) [CRLMB-10487/2022]
In this background and having regard to the
facts and circumstances as available on record, I am
of the view that the conditions of Section 37 of the
NDPS Act are satisfied and hence, the petitioner
deserves indulgence of bail.
Consequently, the bail application is allowed. It is
ordered that the accused-petitioner namely Anil Puri
S/o Mangupuri Goswami arrested in connection with
F.I.R. No.369/2020, Police Station Sadar Nimbahera,
District Chittorgarh shall be released on bail; provided
he furnishes a personal bond of Rs.50,000/- and two
surety bonds of Rs.25,000/- each to the satisfaction of
the learned trial court with the stipulation to appear
before that Court on all dates of hearing and as and
when called upon to do so."
7. In support of the petitioners' case, learned counsel for the
petitioners placed reliance on the following judgments/orders:
(a) Union of India Vs. Bal Mukund & Ors. (Criminal Appeal
No.1397/2007, decided by the Hon'ble Supreme Court on
31.03.2009);
(b) Dinesh Kumar Vs. State of Rajasthan (S.B. Criminal
Misc. Bail Application No.578/2018, decided by a
coordinate Bench of this Hon'ble Court on 04.05.2018);
(c) Jagdish Vs. State of Rajasthan (S.B. Criminal Misc. Bail
Application No.5428/2021, decided by a coordinate Bench
of this Hon'ble Court on 06.05.2021);
(d) Dinesh @ Rinku Vs. State of Rajasthan (S.B. Criminal
Misc. Bail Application No.3342/2020, decided by a
coordinate Bench of this Hon'ble Court on 07.09.2020); and
(e) Shanker Lal Vs. State of Rajasthan (S.B. Criminal Misc.
Bail Application No.5510/2021, decided by a coordinate
Bench of this Hon'ble Court on 03.05.2021).
(5 of 6) [CRLMB-10487/2022]
8. Learned Public Prosecutor however, opposed the aforesaid
submissions made on behalf of the petitioner, on the ground,
amongst others, of a clear distinction between the case of the
present petitioners and that of the co-accused, who has been
granted bail vide the aforementioned order.
9. Heard learned counsel for the parties as well as perused the
record of the case, alongwith the judgments cited at the Bar.
10. With regard to the factual matrix of the instant case, this
Court makes the following observations:
10.1 The case of co-accused Anil Puri, who has been granted bail
vide the aforementioned order dated 07.06.2021, stood on a
different footing from that of the present petitioners, as is clearly
evident from a bare perusal of the said order itself.
10.2 The alleged recovery is of 148 kgs of poppy straw (doda
post), which is quite more than the commercial quantity, as
prescribed under the law, and thus, the same attracts the rigors
contained in Section 37 of the NDPS Act.
10.3 The learned Court below vide the impugned orders has duly
taken into consideration the factual matrix of the case at hand as
well as the statement of the Seizure Officer, namely, Anil Saran
(PW-3), while dismissing the bail applications preferred on behalf
of the present petitioners.
10.4 This Court further observes that the statement of the
concerned Seizure Officer, which is on record, clearly reveals that
he has supported the prosecution version, and the same clearly
makes out a prima facie case against the present petitioners.
10.5 Though the learned counsel for the petitioners placed heavy
reliance upon the judgment of Union of India Vs. Bal Mukund
(supra), this Court finds that the said judgment does not apply to
(6 of 6) [CRLMB-10487/2022]
the present case. Other judgments cited on behalf of the
petitioners also do not render any assistance to their case.
11. Having regard to the overall facts and circumstances of the
case, as also the contraband in question being more than the
commercial quantity and the statement of the concerned Seizure
Officer, this Court is not inclined to grant bail to the present
petitioners, at this stage.
12. Consequently, the present bail applications are dismissed.
(DR.PUSHPENDRA SINGH BHATI), J.
56-SKant/-
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