Rajasthan High Court - Jodhpur
Vimal Kumar Bairva vs State Of Rajasthan (2024:Rj-Jd:9846) on 26 February, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JD:9846]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 8054/2023
Vimal Kumar Bairva S/o Bhanwar Lal, Aged About 23 Years,
Chandakheri, P.s Begun Dist. Chittorgarh. (At Present Lodged In
Dist. Jail, Churu).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 8434/2023
Surendra Bhati S/o Shri Ratan Singh Bhati, Aged About 30 Years,
R/o Kareda, Police Station Kareda, Presently Residing At Behind
Bsl Meal, Vivekanand Nagar, Police Station Pratap Nagar, District
Bhilwara. (Presently Lodged In Churu Jail)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Vijay Raj Mr. Anil Gupta
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
26/02/2024
1. Both these bail applications have been filed under Section
439 Cr.P.C. on behalf of the petitioners Vimal Kumar Bairva and
Surendra Singh Bhati, who are in custody in connection with FIR
No.65/2021 registered at the Police Station Sadar, District Churu
for the offence under Sections 8/18, 25 & 29 of the NDPS Act.
Their bail applications have been rejected by the learned trial
Court by the orders dated 16.12.2021 and 19.06.2023.
[2024:RJ-JD:9846] (2 of 4) [CRLMB-8054/2023]
2. Heard learned counsel for the petitioners, learned Public
Prosecutor for the State and perused the case diary and other
material available on record.
3. It is the case of the prosecution that on 15.06.2021, the
police team of Police Station Sadar, District Churu intercepted a
vehicle which was being driven by one Surendra Singh Bhati and
the another man was sitting by the driver side disclosed his name
to be Vimal Kumar Bairva. Upon having suspicion and doubt
regarding commission of crime, the police officer, after compliance
of the provision of law made a search and seizure of the vehicle
and were found 7.5 kg poppy juice from it. The accused were
arrested and after conducting usual investigation, charge-sheet
has been submitted against them in the Court concerned.
4. Having possession of opium more than 2.5 Kg comes within
the category of commercial quantity and the recovery in this case
is 7.5 Kg, which is very high than to the demarcated quantity. The
discrepancy with regard to time mentioned in the different memos
cannot be appreciated at this stage, as doing so, would mean
meticulous examination of the evidence during the trial, which is
supposed to be made by the trial Court after taking the entire
evidence on record. An explanation has been sought from the
Seizing Officer with regard to anomaly and the Sub-Inspector
Amit Kumar submitted an affidavit deposing therein that the time
mentioned on the 'Parcha Kayami' and Seizure memo was the first
point of time when he reached at the spot and the entire memos
were prepared on the time as mentioned in the respective memos
which is evident from the recital made in the Seizure memo and
[2024:RJ-JD:9846] (3 of 4) [CRLMB-8054/2023]
'Parcha Kayami'. This Court has pondered over the issue and finds
that the memo of seizure reflects mentioning of initial time only
which continued to 3.10 p.m. and culminated upon finishing all the
work. The entire story right from the inception has been
incorporated in the 'Parcha Kayami' report including reaching of
the police at the spot, giving notices to the witnesses and the
accused, conducting search and seizure and preparation of the
memos. Prima facie, it appears that the defence is unnecessarily
giving insistence on a minor defect regarding mentioning of the
time, however, this Court is not giving any final opinion on this
issue as the same has been left to the wisdom of the learned trial
Court.
5. Now coming to the legal issue that 7.5 Kg opium has
allegedly been recovered from the conscious possession of the
petitioners. There is an embargo of Section 37 of the NDPS Act
as per which unless there are reasonable grounds to believe that
the accused has not committed the offence, the Court should not
incline to grant bail.
6. At this juncture, it is felt appropriate to reproduce the
excerpt of the recent judgment passed by the Hon'ble Supreme
Court in the case of State by the Inspector of Police Vs. B. Ramu
arising out of SLP(Crl.) No.8137/20222. Paras No. 11 & 12 are
reproduced herein below:-
11. In case of recovery of such a huge quantity of
narcotic substance, the Courts should be slow in
granting even regular bail to the accused what to talk
of anticipatory bail more so when the accused is
alleged to be having criminal antecedents.
[2024:RJ-JD:9846] (4 of 4) [CRLMB-8054/2023]
12. For entertaining a prayer for bail in a case
involving recovery of commercial quantity of narcotic
drug or psychotropic substance, the Court would
have to mandatorily record the satisfaction in terms
of the rider contained in Section 37 of the NDPS Act.
7. Prima facie, this Court is of the opinion that the petitioner
was involved in commission of crime and, therefore, in view of the
fetter contained under Section 37 of the NDPS Act, I do not feel it
appropriate to allow the bail petition.
8. Accordingly, the bail applications under Section 439 Cr.PC.
filed on behalf of petitioners are hereby rejected.
(FARJAND ALI),J
6-Mamta/-
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