Rajasthan High Court

Rajkumar S/O Kanhaiya Lal vs State Of Rajasthan (2024:Rj-Jp:38009) on 9 September, 2024

Author: Ganesh Ram Meena

Bench: Ganesh Ram Meena

[2024:RJ-JP:38009]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

      S.B. Criminal Miscellaneous Bail Application No. 223/2024

Rajkumar       S/o    Kanhaiya       Lal,    Aged       About      29    Years,   R/o
Dhawadakuri, Police Station Bengu, District Chittorgarh (Raj.)
(Confined At Central Jail, Ajmer)
                                                                        ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent

For Petitioner(s)           :     Mr. Abdul Wahid Naqvi
For Respondent(s)           :     Mr. N.S. Dhakad



           HON'BLE MR. JUSTICE GANESH RAM MEENA

                                       Order

09/09/2024

1. This bail application has been filed by the accused

petitioner under section 439 CrPC in connection with FIR No.

0179/2023 registered at Police Station Sawar District Kekari

for the offence punishable under Section 8/15

of the Narcotic Drugs and Psychotropic Substances Act, 1985

(for short 'the Act of 1985') and after investigation charge-

sheet was submitted for the offence punishable under section

8/25 of the Act of 1985.

2. Facts of the case in nutshell are that on 10.09.2023

complainant Mr. Manvendra Singh Chauhan, CI/SHO, Police

Station Sawar lodged an FIR, which is quoted as under:-

"vkt fnukad 10-09-23 dks le; 12%05 ih,e ij eu Fkkukf/kdkjh ekuosUnzflag iqfu dks Fkkuk gktk ij lwpuk feyh dh ,d

[2024:RJ-JP:38009] (2 of 13) [CRLMB-223/2024]

vYVks dkj okys us 'kkgiqjk xsV ds ikl xk; ds VDdj ekj nh] vkSj dkj NksM+dj ekSds ls Hkkx x;k vkfn bryk ij eu Fkkukf/kdkjh ekuosUnzflag iqfu e; tkIrk gSMdkfu 1469 ca'khyky] dkfu 1024 rstey] dkfu 2455 jes'kpUn e; izkbZosV okgu e; vuql/a kku ckWDl e; ysiVki fizUVj ds Fkkuk ls jokuk gksdj eqrkfcd bryk ds 'kkgiqjk xsV igqpk] tgk 'kkgiqjk xsV ds vUnj dh rjQ dkQh HkhM+ ,df=r gks j[kh Fkh rFkk fo|qr VªkUlQkeZj ds ikl ,d lQsn jax vYVks dkj uacj vkjts 06 lhlh 5458 [kM+h Fkh] dkj ds vkxs cEij dh tkyh o ihNs dk dkap gYdk VwVk gqvk gS] dkj ds vUnj pkch yxh gqbZ gS] rFkk dkj cUn iM+h gS]ekSds ij [kM+s yksxksa ls iwNk rks crk;k fd lquh xk; ;gk ij [kM+h Fkh] ftlds vYVks dkj ls VDdj yxrs yxrs cph gS] xk; ;gka ls pyh xbZ] xk; ds dksbZ pksV ugha vk;h] ysfdu dkj pkyd Mjdj viuh dkj dks ;gh ij NksM+dj 'kkgiqjk xsV ds ckgj dh rjQ Hkkx x;k] ftl ij eu Fkkukf/kdkjh ekuosUnzflag }kjk HkhM+ dks ekSds ls gVus ckcr funsZf'kr dj ekSds ij b/kj m/kj vYVks dkj ds pkyd dh ryk'k dh x;h] ysfdu ugha feykA ftl ij vYVks dkj dh f[kM+dh [kksydj pSd fd;k rks vYVks dkj dh ihNs dh lhV ij IykLVhd ds nks dkys jax ds dVVs o ihNs fMDdh esa IykLVhd ds nks dkys jax ds dVVs Hkjs iM+s feys ftudks lqa?kus o ns[kus o voS/k eknd inkFkZ MksMk iksLr gksus dh iw.kZ laHkkouk gSA ,Mhih,l ,DV ds fof/kuqlkj dk;Zokgh djus gsrq okgu dh pSfdax o djus gsrq nks Lora= xokg ryc djus okLrs le; 12%30 ih,e ij gqDeukek ewfrZc dj dkfu 1024 rstey dks nsdj xokgh rych ckcr voxr djk;kA ftl ij dkfu rstey us FkksM+h nsj ckj vkdj crk;k fd dksbZ O;fDr dksVZ dpgjh ds pDdj o rLdjks ds Hk; ls dk;Zokgh esa xokg cuus dks rS;kj ugha gqvkA ftl ij gejkgh tkCrk esa ls dkfu 2455 jes'kpUn o dkfu 1024 rstey dks ekSds ij dk;Zokgh gsrq xokg cuus ckcr QnZ lgefr xokg eqrhZc dj voxr djk;k] ftl ij dkfu rstey o dkfu jes'kpUn us LosPNk ls xokg cus ckcr fy[khr lgefr iznku dhA rRi'pkr eu Fkkukf/kdkjh ekuosUnzflag iqfu }kjk tkIrk dh enn ls okgu vYVks uacj vkjts 06 lhlh 5458 es ihNs dh lhV ij iM+s dkys jax ds nks IykLVhd ds dVVs dks tkIrk dh enn ls vYVks dkj ls mrkjdj pSd fd;k x;k rks IykLVhd ds pkjksa dVVks ds eqg dks

[2024:RJ-JP:38009] (3 of 13) [CRLMB-223/2024]

lqryh ls lhyk gqvk gS] dVVks dk jax dkyk gS] pkjks dVVks dks [kksydj pSd fd;k x;k rks leLr IykLVhd ds dVVks es MksMk iksLr Hkjk feyk] tks eu Fkkukf/kdkjh o tkIrk }kjk lq?a kus o p[kus ij iwokZuqHko ds vk/kkj ij voS/k eknd inkFkZ MksMk iksLr gksuk ik;k x;kA ftl vYVks dkj uacj vkjts 06 lhlh 5458 ds vKkr pkyd }kjk voS/k eknd inkFkZ MksMk iksLr dCts esa j[kus o okgu esa ifjogu djuk vijk/k /kkjk 8@15 ,uMhi,l ,DV ds odq esa vkuk ik;k tkus ij mijksä pkjks dVVks dks dCts iqfyl ysdj eu Fkkukf/kdkjh }kjk gejkgh tkIrk o xokg dh mifLFkrh esa vuql/a kku ckWDl esa j[ks bysDVªkfs ud dkaVs dh enn ls izR;sd dVVs dk otu fd;k x;k rks dkys jax ds izFke IykLVhd ds dVVs dk otu djus ij MksMk iksLr lghr dqy otu 20 fdyksxzke gksuk ik;k x;k] ftl ij IylLVhd ds dVVs dks f'kYMeksgj fpV psik dj ekdkZ , vafdr fd;k x;kA dkys jax ds nwljs IykLVhd ds dVs dk otu djus ij MksMk iksLr lghr dqy otu 20 fdyksxzke gksuk ik;k x;k] ftl ij IykLVhd ds dVVs dks f'kYMeksgj fpV psik dj ekdkZ ch vafdr fd;k x;kA dkys jax ds rhljs IykLVhd ds dVs dk otu djus ij MksMk iksLr lfgr dqy otu 19 fdyksxzke gksuk ik;k x;k] ftl ij IykLVhd ds dVVs dks f'kYMeksgj fpV psIkk dj ekdkZ lh vafdr fd;k x;kA dkys jax ds pkSFks IykLVhd ds dVVs dk otu djus ij MksMk iksLr lghr dqy otu 19 fdyksxzke gksuk ik;k x;k] ftl ij IykLVhd ds dVVs dks f'kYMeksgj fpV psik dj ekdkZ Mh vafdr fd;k x;kA bl izdkj mDr okgu vYVks dkj uacj vkjts 06 lhlh 5458 esa dqy otu 78 fdyksxzke voS/k eknd inkFkZ MksMk iksLr gksuk ik;k x;kA le; 01-30 ih,e ij QnZ tCrh voS/k eknd inkFkZ MksMk iksLr eqfrZc dh x;hA ,uMhih,l ,DV ds izko/kkukuqlkj Hkkjr ljdkj ds jkti= jftLVªh la[;k Mh-,y- 33004@99 la[;k 802 fnukad 23-12-22 dh ikyuk esa ,uMhih,l ,DV ds tIr'kqnk eky ds ,Q,l,y ijh{k.k o vU; dk;Zokgh gsrq uewuk lsEiy o dUVªky s lsEiy fyok;s tkus gsrq Jheku U;k;ky; ,lhts,e uacj 1 dsdM+h esa i`Fkd ls izkFkZuk i= is'k fd;k tkosxkA rRi'pkr mijksä okgu vYVks dkj uacj vkjts 06 lhlh 5458 dk fujh{k.k fd;k x;k rks dkj ds vUnj fx;j ds ikl [kkyh txg esa ,d lQsn jax dh iphZ feyh tks tgktiqj ek.Myx<+ jksM ds

[2024:RJ-JP:38009] (4 of 13) [CRLMB-223/2024]

xksikyiqjk Vksy Iyktk dh gS] mä iphZ dks dCts iqfyl ysdj QnkZr ds lkFk layXu fd;k x;k] rFkk vYVks dkj uacj vkjts 06 lhlh 5458 dks tfj;s QnZ tCr fd;k x;kA QnZ tCrh okgu le; 2-15 ih,e ij ewfrZc dh x;hA ,uMhih,l ,DV ds rgr fof/k ds izko/kkuqlkj dk;Zokgh esa iz;qDr uewuk 'khy dh le; 02%15 ih,e ij QnZ ewfrZc dh x;h rFkk mijksä dk;Zokgh esa iz;qä ihry dh uewuk 'khy dks fof/k ds izko/kkukuqlkj u"V fd;k tkdj le; 03%00 ih,e ij QnZ u"Vhdj.k uewuk 'khy eqfrZc dh x;h lEiw.kZ dk;Zokgh dh QnkZr tfj;s ysiVki ewfrZc dh x;h] ftudks tfj;s fizUVj fudkyh tkdj ekewjk xokgku dkfu rstey o dkfu jes'kpUn ds gLrk{kj gjok;sA ckn ekSds dh dk;Zokgh eu Fkkukf/kdkjh e; gejkgh tkCrk e; Lora= xokg e; izkbosV okgu e; vuql/a kku ckWDl] bysDVªhd dkaVk] ysiVkWi fizUVj ,lslfjt e; QnkZr e; /kkjk 8@15 ,uMhih,l ,DV esa tCr'kqnk okgu vYVks dkj e; tIr'kqnk voS/k eknd inkFkZ MksMk iksLr f'kYM'kqnk vkVhZdy ekdkZ ,-ch-lh-Mh- ds ekSds 'kkgiqjk xsV ls jokuk gksdj gkftj Fkkuk vk;k tIr'kqnk vYVks dkj dks Fkkuk ifjlj esa [kM+k djok;k o tCr'kqnk MksMk iksLr dks iqu% fj'khYM fd;k tkdj tek eky[kkuk djok;k tkosxkA mDr ?kVuk ds lEcU/k esa eqdnek vUrxZr /kkjk 8@15 ,uMhih,l ,DV esa tfj;s lhlhVh,u,l lkW¶Vos;j ntZ dj Jheku iqfyl v/kh{kd egksn; dsdM+h ds eks[khd vkns'kuqlkj rQrh'k Jh jruflag mfu Fkkukf/kdkjh iqfyl Fkkuk eksj ftyk dsdM+h ds ftEes dh xbZA lhlhVh,u,l esa izfo"V dh tkdj tkjh ,QvkbZvkj dzekad i`Fkd ls vafdr fd;s tk;sxAs ,QvkbZvkj o ,lvkj fu;ekuqlkj tkjh dh xbZA"

3. Counsel appearing for the accused petitioner

submitted that the accused petitioner is an innocent person

and he has been falsely implicated into the matter without

any rhyme or reason. Counsel submitted that the alleged

offence under section 8/25 of the Act of 1985 is not made out

in the facts and circumstances of the case against the

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accused petitioner. Counsel also submitted that as per the

factual report of the case, the petitioner is not registered

owner of the alleged vehicle, whereas the registered owner of

the alleged vehicle is Om Nath s/o Bhairu Nath. Counsel

further submitted that no recovery is pending in this case and

investigation has been completed and challan has since been

filed. Counsel also submitted that the Investigating Agency

did not follow the provision of Section 42 of the Act of 1985.

Counsel also submitted that the accused petitioner is in

judicial custody since 20.12.2023 and no further detention of

the accused petitioner is required for any purpose. Thus, the

accused petitioner may be enlarged on bail.

Counsel in support of his submissions has placed

reliance upon the order dated 22.01.2023 passed by the

Coordinate Bench of this Court in S.B. Criminal Misc.

Second Bail Application NO.16425/2023 (Manoj

Kumawat Vs. State of Rajasthan & Anr.).

4. Learned Public Prosecutor appearing for the State

has vehemently opposed the bail application and submitted

that looking to the nature and seriousness of allegations

levelled against the accused petitioner, the accused petitioner

does not deserve for indulgence of bail by this Court.

5. Considered the submissions made by the learned

counsel appearing for the accused petitioner as well as

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learned Public Prosecutor and also perused the challan

papers.

6. As per the facts on record, the accused petitioner

by an agreement dated 19.08.2023 purchased the vehicle

Maruti Suzuki Alto 800 LXI bearing Registration No. RJ-06-

CC-5458 and taken possession of the same. The alleged

contraband which is more than the stipulated commercial

quantity i.e. 78 kg. 'Poppy Straw' has been recovered from

the aforesaid vehicle which is in exclusive possession of the

accused petitioner.

7. The provisions for making consideration of the bail

application of the accused petitioner in the facts and

circumstances of the present case are sections 25, 35, 37 and

54 of the Act of 1985, which are quoted as under:-

"25. Punishment for allowing premises, etc.,

to be used for commission of an offence.--

Whoever, being the owner or occupier or having

the control or use of any house, room, enclosure,

space, place, animal or conveyance, knowingly

permits it to be used for the commission by any

other person of an offence punishable under any

provision of this Act, shall be punishable with the

punishment provided for that offence.

35. Presumption of culpable mental state.--(1)

In any prosecution for an offence under this Act

which requires a culpable mental state of the

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accused, the court shall presume the existence of

such mental state but it shall be a defence for the

accused to prove the fact that he had no such

mental state with respect to the act charged as an

offence in that prosecution.

Explanation.--In this section "culpable mental

state" includes intention motive, knowledge of a

fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section , a fact is said to

be proved only when the court believes it to exist

beyond a reasonable doubt and not merely when

its existence is established by a preponderance of

probability.

37. Offences to be cognizable and non-

bailable.--(1) Notwithstanding anything contained

in the Code of Criminal Procedure, 1973 (2 of

1974),--

(a) every offence punishable under this Act shall be

cognizable;

(b) no person accused of an offence punishable for

3 [offences under section 19 or section 24 or

section 27A and also for offences involving

commercial quantity] shall be released on bail or

on his own bond unless--

(i) the Public Prosecutor has been given an

opportunity to oppose the application for such

release, and

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(ii) where the Public Prosecutor opposes the

application, the court is satisfied 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.

(2) The limitations on granting of bail specified in

clause (b) of sub-section (1) are in addition to the

limitations under the Code of Criminal Procedure,

1973 (2 of 1974) or any other law for the time

being in force on granting of bail.

54. Presumption from possession of illicit

articles.--In trials under this Act, it may be

presumed, unless and until the contrary is proved,

that the accused has committed an offence under

this Act in respect of--

(a) any narcotic drug or psychotropic substance or

controlled substance;

(b) any opium poppy, cannabis plant or coca plant

growing on any land which he has cultivated;

of utensils specially adopted for the manufacture of

any narcotic drug or psychotropic substance or

controlled substance; or

(d) any materials which have undergone any

process towards the manufacture of a narcotic drug

or psychotropic substance or controlled substance,

or any residue left of the materials from which any

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narcotic drug or psychotropic substance or

controlled substance has been manufactured,

for the possession of which he fails to account

satisfactorily."

8. The Hon'ble Supreme Court in catena of judgments

has held that if there is a personal knowledge of existence of

narcotic substance in a property and the person has control

over the same, even if he is not physically present, he is

deemed to be in possession of the prohibited and contraband

substance. Personal knowledge as to the existence of the

"chattel" i.e. the illegal substance at a particular location or

site, at a relevant time and the intention based upon the

knowledge, would constitute the unique relationship and

manifest possession. To give an example, a person can

conceal the prohibited narcotic substance in a property and

move out thereafter but he would still be said to be in

possession of the same. In the instant case, the accused

petitioner by an agreement dated 19.08.2023 purchased the

vehicle Maruti Suzuki Alto 800 LXI bearing Registration No.

RJ-06-CC-5458 and taken possession of the same and the

alleged contraband i.e. 'Poppy Straw' of 78 kg which is more

than the commercial quantity as notified by the Government,

has been recovered from the aforesaid car.

9. It is to be noted that it is not in dispute that the

accused petitioner by an agreement dated 19.08.2023

purchased the vehicle Maruti Suzuki Alto 800 LXI bearing

Registration No. RJ-06-CC-5458 and taken possession of the

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same and the alleged contraband i.e. 'Poppy Straw' of 78 kg

which is more than the commercial quantity as notified by the

Government, has been recovered from the aforesaid car. This

fact clearly shows that the applicant had personal knowledge

of existence of the contraband in his car on the particular

date concerned and the intention, based upon personal

knowledge, would constitute a unique relationship and

manifest possession.

10. Owing to the fact, which is clinching and admitted

to the applicant, i.e., recovery of huge commercial quantity of

78 kg. Poppy straw, from the car of the accused petitioner

which he purchased through an agreement dated 19.08.2023

and taken possession thereof.

11. At this stage, what is to be seen is whether there

are reasonable ground for believing that the accused is not

guilty of the offence(s) he is charged with and further

whether he is likely to commit an offence under the said Act

or not, while on bail. A finding of the absence of possession of

the contraband on the person of the applicant does not

absolve it of the level of scrutiny required under the

provisions of the NDPS Act. In the instant case, there is a

grave possibility that if the applicant-accused is released then

he might run away and/or if there is any Untitled document

further amount of contraband at his residence, he would

appropriate that as well and he can thus not be absolved of

any scrutiny with respect to the offence.

12. The knowledge of possession of contraband has to

be ascertained from the facts and circumstances of the case.

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The standard of conscious possession would be different in

case of public transport as opposed to a private vehicle with

few persons known to one another. The word 'conscious'

means awareness about a particular fact. It is a state of mind

which is deliberate or intended. Possession in a given case

need not be physical possession but can be constructive.

13. Section 25 of the NDPS Act creates a vicarious

liability against the person who is the owner or is having

control of the property concerned and who knowingly

permitted usage of such property for the commission of a

crime under the Act. The applicant by an agreement dated

19.08.2023 purchased the vehicle Maruti Suzuki Alto 800 LXI

bearing Registration No. RJ-06-CC-5458 and taken

possession of the same. Thus, it has to be presumed that

possession of contraband substance recovered from the

vehicle in question was conscious in nature unless the said

presumption is dislodged by the applicant.

14. Once possession is established, the person who

claims that it was not a conscious possession has to establish

it, because how he came to be in possession is within his

special knowledge. Section 35 of the Act gives a statutory

recognition of this position because of the presumption

available in law. The standard of conscious possession would

be different in case of a public transport vehicle with several

persons as opposed to a private vehicle with a few persons

known to one another. It is an admitted fact that the

contraband substance seized is of commercial quantity and

role of the applicant-accused is quite clear inasmuch as it

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appears that the present applicant is the registered owner of

the offending vehicle from where contraband 'Poppy straw"

has been seized. Having regard to the contraband substance

seized as aforesaid and provisions contained in Section 25, 35

and 37 of the NDPS Act it is not a fit case to enlarge the

applicant on bail. Therefore, the applicant has no option but

to obtain a verdict of either his innocence or involvement in

the offence by following due procedure as laid down in law,

since no exceptional circumstances has been pointed out by

the learned advocate for the applicant.

15. The Hon'ble Apex Court in the case of CBI Vs.

Dhan Singh, reported in (2003) 9 SCC 248, has observed

in para No.4,5 and 6 as under:-

"4. On both counts the High Court is factually not correct. The respondent had been charged not only for offence under Section 20(b), but also for offence under Section 25 of the Act in terms of the order of the Special Judge dated 27-9-2001 whereby the charge has been amended. The maximum punishment of the offence of which the respondent had been charged was 10 years and not five years.

5. Section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfils the conditions stipulated in Section 37. Section 37 was not at all adverted to by the High Court. We may note that the bail granted to the respondent by the Special Judge on

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23-4-2001 was cancelled on 29-6-2001 by the Special Judge. Another bail application was rejected on 28-8-2001. On 8-10-2001, the High Court rejected the petition seeking bail. In the said order reference was made to the stringent provisions of Section 37 of the Act. Despite this background and without adverting to Section 37 the High Court decided to grant bail and we say no more, except that some irrelevant matters have been noticed in the order, namely, the respondent having telephone and ration card etc.

6. Under the aforesaid circumstances, we allow the appeal and set aside the impugned judgment of the High Court dated 29-1-2002 and direct that the respondent shall be taken into custody forthwith."

As regards the order referred by the counsel for the

accused petitioner is concerned, there is no disclosure of facts

and circumstances of the cases therein.

16. Having due regards to the contentions of the

counsel appearing for the accused petitioner as well as

learned Public Prosecutor, the provisions quoted in the

foregoing paras and the case law referred, this Court is not

inclined to enlarge the accused petitioner on bail and

accordingly the bail application is dismissed.

17. However, in the interest of justice, it is expected

from the trial court to expedite the trial as early as possible.

(GANESH RAM MEENA),J