Rajasthan High Court
Malay Ghosh Son Of Shri Milan Ghosh vs Directorate Of Revenue Intelligence ... on 6 March, 2024
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2024:RJ-JP:11533] (1 of 4) [CRLMB-15873/2022]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 15873/2022
Malay Ghosh Son Of Shri Milan Ghosh, Aged About 44 Years,
Resident Of Bongav, North 24 Pargna West Bangal (Presently
Confined In Central Jail Jaipur)
----Petitioner
Versus
Directorate Of Revenue Intelligence, Through Standing Counsel
----Respondent
For Petitioner(s) : Mr. Mohit Sharma with
Mr. Nirmal Kumar
For Respondent(s) : Mr. Kinshuk Jain, Senior Standing
Counsel with
Mr. Jay Upadhayay
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Order
06/03/2024
1. The instant bail application has been filed under Section 439
Cr.P.C. on behalf of accused-petitioner Malay Ghosh S/o Shri Milan
Ghosh. The accused-petitioner has been arrested in connection
with FIR No.DRI C. No.DRI/DZU/JRU/Int-06/2022 registered at DRI
Regional Unit, Jaipur for the offence(s) under Sections 8CA, 22C
and 8/29 of NDPS Act.
2. Learned counsel for the accused-petitioner submits that the
accused-petitioner has been falsely implicated in the case. The
accused-petitioner is facing trial since last two years. He further
submits that the recovery of contraband article containing
commercial quantity of 1492 gram heroin is totally false. He
submits that recovery of the said contraband article was effected
[2024:RJ-JP:11533] (2 of 4) [CRLMB-15873/2022]
from the train and there was no specific information that accused-
petitioner was carrying the contraband article in the train. As per
the prosecution story, the Director of Revenue Intelligence
(hereinafter referred as "DRI") received the information that in
train No.22997, JLWC-SGNR Express in coach No.D2 at berth
No.98, accused-petitioner Malay Ghosh is carrying
contraband/narcotic substances and thereafter, coach No.D2 at
berth No.98 of train No.22997 was searched at Railway Station,
Kota but no recovery was effected from coach No.D2 at berth
No.98. He further submits that in absence of any specific
information that accused-petitioner was carrying contraband
article in train No.13238 at coach No.S2 at berth No.78, the said
recovery has become illegal. There is no prior information recorded
under Section 42(i) of the NDPS Act regarding accused carrying
the contraband article in train No.13238. Therefore, in the absence
of any specific information, recorded under Section 42 of NDPS
Act, it cannot be said that recovery of contraband article was as
per law. Learned counsel further submits that the train was
searched on 10.02.2022 whereas, seizure report was prepared on
11.02.2022. He further submits that no seizure memo was
prepared at the Railway Station and seizure memo was prepared
on next date at DRI Office, Jaipur. Therefore, the entire prosecution
story is false. The trial of the case may take considerable time.
Therefore, the benefit of bail should be granted to the accused-
petitioner.
3. Learned counsel for the accused-petitioner places his
reliance upon the following judgments:-
(i) S.B. Criminal Miscellaneous Bail Application
No.6649/2021 titled as Tara Chand s/o Narayan
[2024:RJ-JP:11533] (3 of 4) [CRLMB-15873/2022]
Lal Dhakar Vs. State of Rajasthan, decided on
10.06.2021.
(ii) Special Leave to Appeal (Crl.) No(s).10296 Lallan
Sarkar @ Lalan Sarkar vs. The State of West
Bengal on 28.02.2024
(iii) Criminal Appeal No.1202/2024 "Mohd. Aliul Islam
@ Aliul Islam @ Aliul Vs. The State of West Bengal
on 26.02.2024 passed by Hon'ble Apex Court.
(iv) Criminal Appeal No.1200/2024 titled as Mithun
Sk. Vs. The state of West Bengal" decided on
26.02.2024 passed by Hon'ble Apex Court.
4. Per contra, learned Senior Standing Counsel appearing on
behalf of DRI vehemently opposes the bail application. He submits
that the trial is at the brink of completion. Three witnesses have
already been examined by the learned trial Court. He further
submits that commercial quantity of contraband article was
recovered from the accused-petitioner and at this stage, there is
no reasonable ground to believe that accused-petitioner has not
committed any offence under the NDPS Act. Thus, looking to the
rider imposed under Section 37 of the NDPS Act, the bail
application of the accused-petitioner may be dismissed.
5. Learned counsel appearing on behalf of DRI places his
reliance upon the judgment of "Union of India Vs. Sanjee Kumar
Singh" in Criminal Appeal No.2211/2023 (Arising out of SLP (Crl)
No.5725 of 2023).
6. Heard and perused the material available on record.
7. At the outset, it is relevant to mention that three witnesses
have already been examined out of six witnesses. Commercial
quantity of contraband article was recovered from the possession
of the accused-petitioner and the concerned Seizure Officer upon
receiving the secret information, intercepted the accused-
petitioner in train No.13238 and has recovered the alleged
quantity of contraband article in bag.
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8. At this stage, it is not desirable for the Court to express
anything on the merits of the case whether, 'the provisions of
Section 42 of the NDPS Act were followed or not'. It is a question
to be determined by the learned trial Court.
9. Similarly, whether the recovery effected from the accused-
petitioner was fabricated or false is also a question needs to be
determined by the learned trial Court.
10. In the matter of Union of India Vs. Sanjee Kumar Singh
(supra), the Hon'ble Apex Court set aside the order of High Court
granting bail to the respondent.
11. In the matter of Narcotics Control Bureau Vs. Mohit Aggarwal
2022 SCC Online SC 981, three-Judge Bench of the Hon'ble
Supreme Court categorically held that the length of period of
custody or the fact that charge-sheet has been filed and trial has
commenced are not considerations that can be treated as
persuasive ground for granting relief to the accused under Section
37 of the NDPS Act.
12. Therefore, without expressing anything on the merits of the
case, I am not inclined to enlarge the accused-petitioner on bail.
13. In view of the above, the bail application filed under Section
439 of the Cr.P.C. on behalf of accused-petitioner is dismissed.
14. Pending applications, if any also stand dismissed.
(PRAVEER BHATNAGAR,J
31-Rahul Joshi
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