Rajasthan High Court
Dhanesh Chand S/O Shri Bolaram vs Union Of India on 22 February, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 3982/2022
Dhanesh Chand S/o Shri Bolaram, Aged About 35 Years, R/o
Village Barso, District Bharatpur (Rajasthan) (Presently Confined
In Central Jail Jaipur)
----Petitioner
Versus
Union Of India, Through NCB.
----Respondent
Connected With
S.B. Criminal Miscellaneous 3rd Bail Application No. 13699/2023
Kameshwar Singh S/o Mohan Singh, Aged About 50 Years, R/o
Jagheena Char Thok Koda Patti, Tehsil And District Bharatpur
(Raj.) (At Present Confined In Central Jail, Jaipur)
----Petitioner
Versus
Union Of India (D.r.i.), Through Standing Counsel
----Respondent
For Petitioner(s) : Mr. Kapil Bhardwaj through VC
Mr. Shantnu Bansal through VC
For Respondent(s) : Mr. Kanshuk Jain, Spl. PP though VC
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
22/02/2024
1. Heard the parties.
2. These Criminal Misc. Bail Applications have been brought
under Section 439 of Cr.P.C., in connection with Criminal
Complaint No.DRI/JRU/19/INT-43/2021 registered with Police
Station Thana DRI Regional UNIT, Jaipur, for offences under
Sections 8/20, 8/25, 8/29 of the NDPS Act.
(2 of 4) [CRLMB-3982/2022]
3. Huge quantity of Ganja was allegedly recovered from the
house of petitioner Kameshwar Singh. Another petitioner Dhanesh
Chand was also found there. Hence, both were apprehended.
4. Learned counsel for the petitioners submits that allegation
against Dhanesh and two other co-accused was that they had
brought Ganja from Vishakhapatnam. Other Co-accused have
already been allowed bail by this Court. The two witnesses of
seizure have turned hostile during trial. Moreover, one of the
seizure witnesses Naresh Kumar Meena has been examined as
PW-1. The deposition of Naresh Kumar Meena reveals that
samples were taken out of 21 bags on 27.09.2021 without
ensuring presence of the Magistrate as required under Section 52
(A) of the NDPS Act. As such the factum of search and seizure
suffers from non-compliance of mandate of law.
5. Learned counsel for the State-respondent has drawn
attention of the Court towards charge-sheet, which shows that the
samples were taken out in presence of the Magistrate on
26.10.2021.
6. The aforesaid facts itself create a doubt as to which of the
two version of the prosecution is acceptable.
7. Learned counsel for the State vehemently opposed the
prayer on the ground that case of the petitioners is distinguishable
from other co-accused, who were allowed bail as they were not
present at the place of recovery, nor anything was recovered from
their possession. Rather huge quantity of Ganja was recovered
from the house of Kameshwar Singh and petitioner Dhanesh
Chand was also present there. He contends that bar under Section
(3 of 4) [CRLMB-3982/2022]
37 of the NDPS Act is attracted in the facts and circumstances of
this case and unless the Court is satisfied on the basis of material
available on record that the accused petitioners would not commit
crime in future or that their involvement in the crime is doubtful,
the bail should not be granted.
8. Learned counsel next contends that this is the third bail
application of Kameshwar Singh, two other applications were
already rejected and at the time of rejection, different judgments
of the Hon'ble Supreme Court and of this Court were taken note
of. This argument that the search and seizure as well as act of
sampling is vitiated due to non-compliance of the law was also
there at the earlier occasion, hence there is no change in
circumstance of the case, to re-consider the prayer for bail.
9. Petitioner - Kameshwar Singh is in jail since 23.09.2021. The
change in circumstance is that prosecution witnesses have been
examined during trial and the statements of the witnesses PW-1
and PW-2 reveals that while taking samples for forensic
examination, services of the Magistrate was not taken. Moreover,
these witnesses have stated the date of taking out the samples,
which is different from that of the subsequent report by Magistrate
which is part of the charge-sheet.
10. Since there is non-compliance of mandate of law in the
matter of seizure and considering that the witnesses have not
supported the allegation of search and seizure, there is no need
for further detention of the petitioners.
11. Hence let the accused-petitioners above-named be released
on bail in the aforesaid FIR, if they are not wanted in any other
(4 of 4) [CRLMB-3982/2022]
case, provided that they furnish bail bond of Rs.25,000/- with two
sureties of like amount to the satisfaction of the learned trial court
with following conditions:-
(i) the petitioners shall fully co-operate in the trial, failing
which, the trial judge would be at liberty to cancel the bail bonds
of the petitioners.
(ii) the petitioners shall not leave the Country without permission
of the trial Court otherwise it would amount to disobedience of the
order of this Court and would be a ground for cancellation of bail.
(iii) the petitioners shall not tamper with the evidence.
12. Accordingly, these bail applications stands allowed.
(BIRENDRA KUMAR),J
1-2-Nitin/jaipur/-
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