Bhagirath vs State Of Rajasthan ...
2023 Latest Caselaw 8586 Raj

[2023:RJ-JD:35253]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 12921/2023

Bhagirath S/o Pappa Ram Bishnoi, Aged About 36 Years, R/o Nearby Dhotarowalo Ki Dhani Jhanwar Ps Dist. Jodhpur Lodged In Dist. Jail Chittorgarh

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

----Respondent

For Petitioner(s) : Mr. Vijay Raj Bishnoi For Respondent(s) : Mr. M.S. Bhati, PP

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

16/10/2023

The instant bail application has been filed by the petitioner

under Section 439 Cr.P.C in connection with FIR No.112/2018 of

Police Station Nimbahera Sadar, District Chittorgarh, for the

offence under Section 8/15 of NDPS Act.

Learned counsel for the petitioner submitted that contraband

greater than commercial quantity was recovered from the

concious possession of co-accused-Shivpal. Learned counsel

submitted that co-accused-Shivpal in his disclosure statements

recorded under Section 27 of the Indian Evidence Act stated that

the contraband recovered from him was to be delivered to the

present petitioner. Learned counsel urged that co-accused-

Shivpal has already been enlarged on bail by a co-ordinate Bench

of this Court vide order dated 09.07.2019, in S.B. Criminal Misc.

Bail Application No.6350/2019.

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For ready reference, order dated 09.07.2019 is reproduced

hereinbelow:-

"Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

The petitioner has been arrested in connection with FIR No.112/2018 of Police Station Sadar, Nimbahera for the offence punishable under Section 8/15 NDPS. He has preferred this bail application under Section 439 Cr.P.C. Learned counsel for the petitioner has submitted that it is clear from the statements of Sanjay Sharma (PW-3), the then S.H.O., Police Station Nimbahera, Distt. Chittorgarh that 9 bags containing poppy husk were seized by the police and the Seizure Officer first took 200 gms of poppy husk from each bag then he mixed the said poppy husk weighing 1 kg and 800 grams on a tarpaulin and thereafter took two samples of 500 gms each from that mixture. Thus, it is clear that the Seizure Officer did not collect separate samples from each bag. It is also submitted that the I.O. has not stated that the test by the U.N. Kit was carried out on each bag before taking small quantity of poppy husk for samples.

Learned counsel for the petitioner while placing reliance on the decision of this Court rendered in the case of Netram Vs. State of Rajasthan, reported in 2014(1) Cr.L.R. (Raj.) 163 has argued that this Court has held that if the samples from each bag containing poppy husk/ poppy straw have not been collected and test by U.N. Kit has not been conducted on each bag and if the Seizure Officer has taken out some quantity of narcotic drug from each bag and after mixing the same has taken out some portion for sample, then, the same is not in conformity with the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No.1.7 and, as such, it cannot be said that the narcotic contraband recovered in the matter is of commercial quantity or above. It is, thus, prayed that the petitioner may kindly be enlarged on bail. Learned Public Prosecutor has opposed the bail application.

Having considered the overall facts and circumstances of the case and substantial grounds taken in this bail application and taking into consideration the judgment passed by this Court in Netram's case (supra) and taking into consideration the fact that trial of the case is likely to take time, this Court is inclined to grant bail to the petitioner.

Accordingly, this bail application filed under Sec.439 Cr.P.C. is allowed and it is directed that petitioner Shivpal s/o Ranveer Singh shall be released on bail in connection with FIR No.112/2018 of Police Station Sadar Nimbahera,

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provided he executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial."

Learned counsel for the petitioner submitted that in view of

the fact that contraband was not recovered from the conscious

possession of the present petitioner and co-accused-Shivpal from

whose conscious possession contraband was recovered has

already been enlarged on bail.

Lastly, learned counsel for the petitioner submitted that the

case of the present petitioner is not distinguishable from that of

the co-accused-Shivpal who has already been enlarged on bail by

this Court and therefore, no fruitful purpose would be served by

keeping the petitioner behind the bars. Learned counsel thus,

prayed that the petitioner may be enlarged on bail.

Per contra, learned Public Prosecutor vehemently opposed

the bail application and submitted that the petitioner has been

arrested in connection with alleged offences on 29.09.2023

through production warrant only. Learned Public Prosecutor

submitted that looking to the seriousness of the accusations, the

petitioner does not deserves to be enlarged on bail. However, he

was not in position to dispute the fact that aforementioned co-

accused has already been enlarged on bail.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

Having considered the rival submissions, facts and

circumstances of the case so also the fact that aforementioned co-

accused has already been enlarged on bail by a co-ordinate Bench

of this Court from whose conscious possession contraband was

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recovered and looking to the possibility that the trial may take

long time to conclude, without expressing any opinion on

merits/demerits of the case, this Court is inclined to enlarge the

petitioner on bail.

Accordingly, the present bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner-

Bhagirath S/o Pappa Ram Bishnoi shall be enlarged on bail in

connection with FIR No.112/2018 of Police Station Nimbahera

Sadar, District Chittorgarh, provided he furnishes a personal bond

in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each

to the satisfaction of the learned trial Judge for his appearance

before the court concerned on all the dates of hearing as and

when called upon to do so.

(KULDEEP MATHUR),J 97-KshamaD/-

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