Rajasthan High Court - Jodhpur
Rajesh Kumar vs Union Of India on 5 March, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:10384]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 10550/2024
Rajesh Kumar S/o Vishwanath Prasad, Aged About 31 Years, R/o
Gram Musaila, Ps Mohanpur, Dist. Gaya, Bihar (Lodged In Central
Jail, Jodhpur.)
----Petitioner
Versus
Union Of India, Through Ncb
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. M.R. Pareek, Spl. PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
05/03/2025
1. This third application for bail under Section 439 Cr.P.C. (483
BNSS) has been filed by the petitioner who has been arrested in
connection with F.I.R. No.VIII (10)/09/NCB/JZU/2018 of NCB
Jodhpur, for offences under Sections 8/18 and 29 of NDPS Act.
2. As per the prosecution, on 18.06.2018, contraband (opium)
greater than commercial quantity weighing 5 kgs. 750 gms. was
recovered from the conscious possession of the co-accused
persons namely Avinash Kumar, Yogendra Kumar and the present
petitioner i.e. Rajesh Kumar by the team of NCB Jodhpur at
Chandra Vilas Lodge, Station Road, Jodhpur.
3. Learned counsel for the petitioner contended that the
petitioner has been falsely implicated in the present case. Drawing
attention of the Court towards the challan papers and the various
other documents attached with the case file, learned counsel
submitted that as per the prosecution, the allegation against the
[2025:RJ-JD:10384] (2 of 8) [CRLMB-10550/2024]
petitioner is that he along with co-accused persons was carrying
one black bag containing 5 kgs. 750 gms. of opium. Learned
counsel submitted that the story of the prosecution is absolutely
false and fabricated as it is not possible for the petitioner who is a
disabled person to carry such a heavy weighted bag with co-
accused persons.
4. Lastly, learned counsel for the petitioner submitted that the
petitioner is in judicial custody; the trial against the petitioner is
not likely to be concluded in the near future; the petitioner is
suffering from 75% disability and can't even walk without
assistance; and so also that he is not likely to involve himself in a
case of similar nature, in case, he is enlarged on bail by this
Court. On these grounds learned counsel for the petitioner
implored the Court to enlarge the petitioner on bail.
5. Per contra, Shri, M.R. Pareek, learned Spl. Public Prosecutor
has vehemently opposed the bail application. Learned Public
Prosecutor submitted that in a case involving illegal trade of
contraband greater than commercial quantity, unless the twin
conditions enumerated under Section 37 of the NDPS Act are duly
satisfied, an accused person is not entitled to be enlarged on bail.
6. Drawing attention of the Court towards the order dated
08.04.2021 passed by the co-ordinate Bench of this Court while
deciding S.B. Criminal Bail Cancellation Application
No.23/2021 titled as "Narcotics Control Bureau v. Rajesh
Kumar", learned Special Public Prosecutor submitted that the bail
granted to present petitioner by the Special Judge NDPS Act
cases, Jodhpur in Criminal Misc. Application No.69/2019 vide order
[2025:RJ-JD:10384] (3 of 8) [CRLMB-10550/2024]
dated 08.02.2019 came to be cancelled by the co-ordinate Bench
of this Court on the ground that the twin conditions enumerated
under Section 37 of the NDPS Act are not satisfied in the present
case and that the disability of an accused cannot solely be a
reason to enlarge him on bail.
7. Learned Special Public Prosecutor vehemently contended
that the grant of bail to the petitioner in the present case would
not only go against the spirit of the NDPS Act but would also
convey a wrong message to the society that being a disabled
person, the petitioner has a license to indulge in serious offences
with impunity.
8. Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
9. The order dated 08.04.2021 passed by the co-ordinate
Bench of this Court while deciding S.B. Criminal Bail
Cancellation Application No.23/2021 titled as "Narcotics
Control Bureau v. Rajesh Kumar" is reproduced hereinbelow
for ready reference:-
"Heard learned Special Public Prosecutor for Narcotics
Control Bureau and learned counsel for the respondent-
accused.
The instant application for cancellation of bail has been
preferred by the Narcotics Control Bureau, Jodhpur for
assailing the order dated 08.02.2019 passed by the Special
Judge, NDPS Act Cases, Jodhpur in Criminal Misc.
Application No.69/2019 whereby, the bail application of the
respondent-accused under Section 439 Cr.P.C. was
accepted.
Learned Special Public Prosecutor Shri M.P. Pareek submits
that ex-facie the order impugned is illegal on the face of
the record because contraband opium which was recovered
from the three accused persons namely Avinash Kumar
and Yogendra Kumar weighed 5 Kg 750 gms., which was
well above the commercial quantity. All the three accused
[2025:RJ-JD:10384] (4 of 8) [CRLMB-10550/2024]
persons are residents of Bihar. They failed to offer any
explanation for being found in possession of the
contraband opium. He points out that two bail applications
preferred by the accused Yogendra Kumar and five bail
applications preferred by the accused Avinash Kumar have
been rejected by this Court. He drew the Court's attention
to the Supreme Court judgment in the case of State of
Kerala Etc. Vs. Rajesh Etc. reported in AIR 2020 SC
721 wherein the Hon'ble Apex Court considered the
concept of bail under the NDPS Act and held that before
granting bail to the accused for an offence under the NDPS
Act, where the recovered quantity is commercial, it is
essential for the Court seized of the matter to record a
satisfaction in terms of Section 37 of the NDPS Act. He
urges that the impugned order dated 08.02.2019, does not
indicate any such satisfaction recorded by the trial Court
and hence, the same cannot be sustained.
Learned counsel Shri B.R. Bishnoi, representing the
respondent-accused vehemently and fervently contended
that the accused is suffering from 75% disability and is not
even in a position to walk without assistance. He thus
urges that it is totally impossible to believe the story of
prosecution that all the three accused were found carrying
the single bag containing 5kg 750gms opium through a
stair case which was just 28 feets 6 inches wide. He thus
urges that ex-facie the entire story of the prosecution is
false and fabricated. However, Shri Bishnoi is not in a
position to dispute the fact that the recovered contraband
was well above the commercial quantity.
Law is well settled that in cases where the weight of the
contraband narcotic drug is more than commercial
quantity, the Court considering the bail of the accused
would definitely be under an obligation to record the
satisfaction under Section 37 of the NDPS Act which reads
as below:-
Section 37 of The Narcotic Drugs and Psychotropic
Substances Act, 1985
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
2[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
(ii) where the Public Prosecutor opposes the application,
the court is satisfied that there are reasonable grounds for
[2025:RJ-JD:10384] (5 of 8) [CRLMB-10550/2024]
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.
However, the order impugned is totally silent on this
aspect. Thus, the controversy at hand is squarely covered
by the ratio of Hon'ble Supreme Court judgment (State of
Kerala Vs. Rajesh) supra relied upon by Shri Pareek.
Hence, the impugned order cannot be sustained, quashed
and set aside. The bail bonds of the respondent-accused
are cancelled. He shall surrender before the trial court
within next thirty days. Needless to say that after
surrendering, the accused shall at liberty to file a fresh
regular bail application, which shall be considered and
decided as per law.
The application for cancellation of bail is allowed in these
terms."
10. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that in the
present case, the contraband (opium) recovered from the
conscious possession of the petitioner and the co-accused persons
is above the commercial quantity.
11. The Special Judge, NDPS Act Cases, Jodhpur vide order
dated 08.02.2019, accepted the bail application filed by the
petitioner under Section 439 Cr.P.C. on the solitary ground of he
being a physically challenged person. A co-ordinate Bench of this
Court vide order dated 08.04.2021 was pleased to allow the
application for cancellation of bail filed on behalf of the Narcotics
Control Bureau in S.B. Criminal Bail Cancellation Application
No.23/2019. The co-ordinate Bench directed the petitioner to
surrender within 30 days from the date of the order.
12. The order dated 08.04.2021 passed by co-ordinate Bench of
this Court came to be challenged before the Hon'ble Supreme
[2025:RJ-JD:10384] (6 of 8) [CRLMB-10550/2024]
Court of India by way of filing Special Leave to Appeal (Crl.)
No.3886/2021 "Rajesh Kumar v. NCB". The Hon'ble Apex
Court was pleased to reject the SLP filed by the accused-petitioner
vide order dated 26.07.2021.
13. From a perusal of the record of the case, this Court finds that
the petitioner after dismissal of the SLP filed by him before the
Hon'ble Supreme Court of India did not surrender before
competent criminal Court and absconded for more than one year
and four months. It is also to be noticed here that while the
petitioner was on bail, he got involved in two cases of similar
nature as well. At present, the petitioner is facing trial for the
following cases under the NDPS Act:-
Sr. No. FIR Case Section Date Status/ Date of Release
Number Number Arrest on any
& Police Previous
Station Occasion
(If Any)
1. 119@2022 & 8@18 & 141@2022 & fopkjk/khu
] iqfyl ,uMhih,l
Fkkuk ,DV
Mkafx;kokl
2. viii(10)01 & 8@18] 29 & & & fopkjk/khu
/NCB/ ,uMhih,l
ASZ/ ,DV
vtesj
3. viii(10)09 & 8@18] 29 & & & fopkjk/khu
/NCB/ ,uMhih,l
JZU/2018 ,DV
14. The material placed on record would reveal that the
petitioner is a habitual offender. After bail was granted to him by
the learned Spl. Judge NDPS Act Cases, Jodhpur vide order dated
08.02.2019 on the solitary ground that he is a disabled person,
the petitioner got involved in two more cases for the offences
under the NDPS Act. Further, the petitioner even after cancellation
[2025:RJ-JD:10384] (7 of 8) [CRLMB-10550/2024]
of the bail granted to him by the learned Spl. Judge NDPS Act
Cases, Jodhpur did not surrender before the competent criminal
Court and absconded from his known address for a period of more
than one year and four months.
15. In view of above, this Court has no hesitation in coming to a
conclusion that the twin conditions under Section 37 of the NDPS
Act are not satisfied in the present case and the sole argument of
learned counsel for the petitioner that the accused-petitioner is
suffering from 75% disability cannot be considered as a valid
ground to enlarge him on bail.
16. It is also to be noticed that the co-accused persons namely
Avinash Kumar and Yogendra Kumar have been enlarged on bail
by the co-ordinate Bench of this Court vide order dated
18.05.2023 on the ground of delay in trial but case of the
petitioner are clearly distinguishable from that of the case of co-
accused persons and he cannot claim entitlement to bail on the
ground of parity for the simple reason that the delay in trial is
solely attributable to the petitioner and he should have
surrendered before the competent criminal Court in compliance of
the order dated 08.04.2021 passed by the co-ordinate Bench of
this Court while deciding S.B. Criminal Bail Cancellation
Application No.23/2021 titled as "Narcotics Control Bureau
v. Rajesh Kumar". Further, looking to the past conduct of the
petitioner, this Court is unable to record a finding that in case, the
petitioner is enlarged on bail, he is not likely to commit any
offence.
[2025:RJ-JD:10384] (8 of 8) [CRLMB-10550/2024]
17. Consequently, this third bail application under Section 439
Cr.P.C. (483 BNSS) is dismissed.
(KULDEEP MATHUR),J
himanshu/-
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