Rajasthan High Court - Jodhpur
Kailash vs State Of Rajasthan on 14 October, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:44702]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 10144/2025
Balkishan S/o Shri Kashiram Dhakad, Aged About 55 Years, R/o
Chandakhera, P.s. Begun, District Chittorgarh (Presently Lodged
In District Jail, Chittorgarh)
----Petitioner
Versus
Union Of India, Through CBN
----Respondent
Connected With
S.B. Criminal Miscellaneous 3rd Bail Application No. 5001/2025
Kailash S/o Dolatram Dhakad, Aged About 54 Years, R/o
Bagwanpura (Kankariya Talai) Police Station Ratangarh District
Neemach Mp (Lodged In Dist. Jail, Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Special PP Of CBN
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
Mr. Ravi Panwar
For Respondent(s) : Mr. K.S. Nahar, Spl. PP for CBN
Mr. Gopal Singh
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
Reserved on: 10/10/2025
Pronounced on: 14/10/2025
1. These second and third applications for bail under Section
483 BNSS (439 Cr.P.C.) have been filed by the petitioners who
have been arrested in connection with F.I.R. No.3/2022, registered
at Police Station CBN, Kota, for offence under Sections 8/18 and
8/29 of NDPS Act.
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2. Heard learned counsel for the parties at Bar. Perused the
material available on record.
3. As per the prosecution, on 16.03.2022, the officials of CBN
on receiving a specific information raided the residential house of
one Kashiram Dhakad situated in Chanda Khedi and recovered
contraband (opium) weighing 20 kgs. and 300 gms. from the
conscious and exclusive possession of the present petitioners
Balkishan Dhakad and Kailash Dhakad.
4. Learned counsel for the petitioners vehemently contended
that the petitioners have been falsely implicated in the present
case. The petitioner Balkishan had nothing to do with the
recovered contraband and there is nothing on record to establish
that he had procured or collected the recovered contraband.
Learned counsel submitted that it was a mere coincident that the
petitioner Kailash was also present at the place of recovery being
relative/friend of the co-accused person.
5. Learned counsel submitted that the petitioners are in judicial
custody since 16.03.2022 but till date, out of 18 cited prosecution
witnesses, the statements of only 12 cited prosecution witnesses
have been recorded before the competent criminal Court. Learned
counsel submitted that there is nothing on record to indicate that
the delay in trial is attributable to the present petitioners or there
is any apprehension of the petitioners involving themselves in a
case of similar nature, in case, they are enlarged on bail by this
Court.
6. In support of the arguments, learned counsel placed reliance
on the judgment passed by the Hon'ble Supreme Court of India in
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the case of "Ravi Prakash v. State of Odisha [Special Leave
To Appeal (Criminal No.4169/2023)]" and "Union of India
v. K.A. Najeeb" reported in (2021) 3 SSC 713.
7. Per contra, learned Public Prosecutor has vehemently
opposed the bail applications. Learned Public Prosecutor submitted
that in the present case, a huge quantity of contraband (opium)
has been recovered from the conscious and exclusive possession
of the present petitioners and, therefore, this is not a fit case in
which embargo contained in terms of Section 37 of the NDPS Act
can be recorded in favour of the accused persons.
8. Lastly, learned Public Prosecutor submitted that the trial
against the petitioners is at its fag end. To substantiate this
contention, under instructions, he submitted that out of 18 cite
prosecution witnesses, two witnesses have been dropped by the
competent criminal Court and the statements of 13 cited
prosecution witnesses have already been recorded. It was thus
prayed that the present bail applications filed on behalf of the
petitioners may be rejected.
9. Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that in the
present case, more than 20 kgs. opium was recovered from the
conscious and exclusive possession of the petitioners, which is
much more than commercial quantity (2.5 kgs.). It is a settled law
that possession in a given case need not be physical possession
but can be constructive, which means having power and control
over the article. Once possession is established, the person who
claim that he is not the owner of the said article, has to establish
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it, because the fact that how he came to be in possession is within
his special knowledge. Further, Section 35 of the NDPS Act gives a
statutory recognition to this position because of the presumption
available in law. Similar is the position in terms of Section 54 of
the NDPS where also presumption is available to be drawn from
possession of illicit articles unless the same is otherwise
satisfactorily accounted for.
10. In that view of the matter, since a huge quantity of
contraband was recovered from the conscious/constructive
possession of the petitioners, the rigours of Section 37 of NDPS
Act shall apply to the prejudice of the petitioners and, therefore,
this Court is not inclined to enlarge the petitioners on bail.
11. Consequently, these second and third bail applications under
Section 483 BNSS (439 Cr.P.C.) are dismissed. It is however,
expected from the learned trial Court that the criminal trial against
the petitioners shall be concluded as early as possible preferably
within a period of six months from today.
12. A copy of this order be placed in each file.
(KULDEEP MATHUR),J
himanshu/-
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