Rajasthan High Court

Dhanraj @ Dhannalal S/O Madanlal vs State Of Rajasthan (2024:Rj-Jp:35575) on 23 August, 2024

Author: Ganesh Ram Meena

Bench: Ganesh Ram Meena

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 3050/2024

Dhanraj @ Dhannalal S/o Madanlal, Aged About 35 Years, R/o
Sekund, Police Station Sarthal District Baran Raj.


(Accused Presently Confined At Sub Jail Chhabra District Baran).
                                                                   ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent

For Petitioner(s) : Mr. Bhim Singh Meena For Respondent(s) : Mr. Devi Singh PP

HON'BLE MR. JUSTICE GANESH RAM MEENA

Order

23/08/2024

1. This bail application has been filed by the accused

petitioner under section 439 CrPC in connection with FIR No.

0021/2024 dated 29.01.2024 registered at Police Station

Sarthal District Baran for the offences punishable under

sections 8/15 and 8/25 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'the Act of

1985').

2. The FIR No. 0021/2024 was registered with the

facts that a secret information was received by one Mr.

Gambheer Singh, SHO, Police Station Sarthal, District Baran

on 29.01.2024 in regard to taking contraband Doda Chura by

the accused petitioner in a Swift Dzire Car bearing number

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RJ-01-CE518. Search of the vehicle was made and from the

possession of the accused petitioner 57.980kg. 'Doda Chura'

was recovered and seized. He (accused petitioner) was asked

about the licence but he told that he is not having any such

licence for the same thereafter the petitioner was arrested.

3. Counsel appearing for the accused petitioner

submits that the accused petitioner has falsely been

implicated in this case as he has nothing to do with the

alleged incident. Counsel submits that the provisions of

section 52A of the Act of 1985 have not been followed

properly and as a result whereof, the entire alleged recovery

is vitiated. Counsel also submits that neither any recovery

has been made from the possession of the petitioner nor

further any recovery has to be made from him. Counsel

further submitted that the charge-sheet in the case has since

been filed. Counsel also submitted that the accused petitioner

is in judicial custody since 29.01.2024 as he has remained in

judicial custody for sufficient period. Counsel also submits

that it is the first offence of the accused petitioner. Counsel

submits that the at the time of alleged recovery, no

independent witnesses were called and the recovery of

alleged contraband is doubtful. Counsel submits that the trial

of the case is likely to take considerable time, hence the

accused petitioner may be released on bail.

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4. Learned Public Prosecutor appearing for State

vehemently opposed the bail application and submits that

there is recovery of contraband from the possession of the

petitioner which is more than the commercial quantity. He

further submitted that the provision of section 37 of the Act

of 1985 clearly speaks that no person accused of an offence

punishable for the offences involving commercial quantity

may not be released on bail because at this stage it cannot

be said 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.

5. Considered the submissions made by the learned

counsel appearing for the accused petitioner as well as

learned Public Prosecutor and also perused the challan

papers.

6. It is a fact on record that Narcotic Drugs 'Doda

Chura' has been recovered from the possession of the

accused petitioner and the quantity of such substances is

more than the commercial quantity as notified by the

Government.

7. The provision of section 37 of the Act of 1985

clearly speaks that prima facie from whose possession

contraband more than commercial quantity is found, is guilty

of committing offence under the provisions of the Act of

1985.

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8. Bare reading of provision of section 37 of the Act of

1985 speaks that it is for the accused to show that he is not

guilty of such offence. Normally, a person from whose

possession some contraband more than the commercial

quantity is found, cannot say that he is not guilty of an

offence, but in exceptional circumstances when he could

show that either he has been falsely implicated or he could

show that he was authorized to possess the same, then it can

be believed that he is not guilty of such an offence. In the

present case, the counsel appearing for the petitioner has not

raised any such argument which could convince the Court

that there are reasonable grounds for believing that he is not

guilty of such an offence. The only submission made by the

counsel for the accused petitioner is in regard to non-

compliance of provisions of section 52A of the Act of 1985.

9. This Court in the case of Shakti Gurjar Vs. State

& Anr. (S.B. Criminal Misc. Bail Application

No.13814/2023) decided on 30.07.2024 after

considering the law laid down by the Hon'ble Apex Court and

various other Courts has observed in paras 27 to 31 as

under:-

"27. This Court has to go by the provisions of statutory law because any order of the Court without considering the provisions of the law in force or contrary to the same is said to be per-

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incurrium and this Court would like to restrain itself from passing such order.

28. In the present case there is recovery of contraband weighing more than the commercial quantity as notified and also there are five other criminal cases pending against the petitioner. There are no reasons for satisfaction of this Court so as to believe that the accused petitioner is not guilty of offences under the provisions of the Act of 1985 and that he is not likely to commit any offence while on bail as he is already facing five other criminal cases.

29. Drug abuse has taken its toll in almost all the districts of Rajasthan. The addicts primarily belong to youth age. The high rate of drug consumption is leading to issues like illegal trade, drug trafficking, and smuggling. The problem of drug addiction has a significant bearing on drug trafficking which has become a significant challenge for governments and social reformers. The NCB reports that the main internal factor for drug trafficking in India is the illicit cultivation of opium, poppy and cannabis. Also, the diversion from licit opium sources to illegal opium production is a major concern. In the trends of 2020, Rajasthan is among the 3 major states, along with Uttar Pradesh and Madhya Pradesh, from where the opium is trafficked to other parts of the country.

Young Indians addicted to drugs are spoiling their lives. Drug addiction is the worst kind of addiction and it causes numerous mental and physical ailments and such youth go often into

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depression. In order to cope up with stress and depression, they try to consume more drugs and keep spiraling around and are never able to leave this addiction. They lose their sense of control and become vulnerable and many of them commit suicide or get involved in different kinds of criminal activities.

Drug abuse has a direct impact on social and economic aspect of the nation. The impact of drug is realized in workplace, family and the society. It results in violence at home and gang wars in cities, increase crimes and even stresses the public health system and we find young mass addicted to drugs which leads to unsafe life. Addiction not only breaks the family harmony but also puts high economic burden on the society. The economic impact due to Drug abuse is immeasurable.

According to UNDCP report, the economic effects of drug abuse can be measured in two forms, i.e. cost of government drug enforcement policies and the lost human productivity such as lost wages and decreased production that results from illness and premature deaths related to drug abuse. There are many hidden costs relating to disturbance in social life, wastage of young energy.

One can notice apparent rapid changes in societal alignment owing to the reduced family and community cohesiveness, increased unemployment and underemployment, economic and social marginalization and increased crime as a direct result of the problem of drug abuse. Youth forms the basic unit of the society. The harmony of the

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society depends on its younger members. When the members of society become drug abusers then it disturbs the entire societal harmony. Every society suffers due to even a single drug abuser. It affects the life style and also financial condition of the society concerned.

It is a common practice in the rural areas for the farmers to leave their tools and machineries lying in the fields unsupervised. The drug addicts often end up resorting to the commission of offences like stealing of tools, equipments and machineries of the farmers of their safe and regular farming style. Thus, it develops a strong correlation between addiction and an increased risk of commission of offences.

When drug problems in a community are perceived as serious, people must face unpleasant alternatives. The can accept the reality of drugs in their neighbourhood, adapting to a situation that they cannot hope to change immediately; they can change their lifestyle to reduce the threat of drug dealing and violence in their localities; they can change the environment by some form of community action either with or without the support of the police. Many of these alternatives are not available to persons living in poverty or with limited means. Thus, with fewer choices, the poor pay a greater personal price for drug problems than others.

One aspect of this connection between drugs and crime is temporal causation; that is involvement in property crime generally precedes the addiction career. After addiction occurs,

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property crime increases and narcotic use is further increased. Drugs and crime cannot be considered separately, in isolation from each other, especially if they emerge from a common set of circumstances. It is a well accepted fact that drug use is a strong correlate of being booked for a criminal offence, but age is the more important correlate of criminal involvement and poverty an even more important predictor of property crime.

30. It can thus very precisely be concluded that what is alluring for one can be daunting for the others. The addicts are, therefore, an added burden to the law-abiding population.

31. Having considered the material available on the record in the form of charge-sheet and the pendency of five other criminal cases against the petitioner, in the opinion of this Court it cannot be said at this stage that the accused petitioner is not guilty of the offences involving commercial quantity of the contraband and that he is not likely to commit any offence while on bail."

10. As regards the submissions made by the counsel

for the accused petitioner that there is violation of provision

of Section 52A of the Act of 1985, this Court after considering

the various judgments has observed in the case of Shakti

Gurjar (supra) in para 16 as under:-

"16. Since no satisfaction of the Court has been recorded as required under section 37(b)(ii) of the Act of 1985, the aforesaid orders/judgments cannot be followed to grant relief to the petitioner. The judgments passed in the case of Boota Singh

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(supra), Raju Munim (supra) and Roy V.D. (surpa) are the cases where there is non-compliance of certain provisions of the Act of 1985 and the right of an accused was considered at the stage of the trial/appeal. The non-compliance of any of the provisions of the Act of 1985 can only be scrutinized only on the basis of the evidence to be led before the trial court i.e. the evidence of the material witnesses who are connected with the compliance of such provisions. Until and unless those witnesses who are connected with compliance of such provisions are got examined by the trial court only then it can be considered and scrutinized whether the compliance of any such provision has been made or not or if same has not been made then what were the reasons or causes which led to such non-compliance because some reasons or causes may be very material to be considered by the trial court or the appellate court."

11. Having regard to the submissions made by the

counsel for the accused petitioner and so also the learned

Public Prosecutor and the law laid down by this Court in the

case of Shakti Gurjar (supra), and also the material fact

that there is a recovery of Narcotic Drugs and Psychotropic

Substances more than the commercial quantity from the

possession of the accused petitioner, at this stage it cannot

be said that the petitioner is not guilty and therefore, in view

of the provisions of section 37 of the Act of 1985, this Court

is not inclined to enlarge the accused petitioner on bail.

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12. Accordingly, the bail application filed by the accused