Ramesh vs State Of Rajasthan (2025:Rj-Jd:24555) on 20 May, 2025

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Rajasthan High Court - Jodhpur

Ramesh vs State Of Rajasthan (2025:Rj-Jd:24555) on 20 May, 2025

1. The jurisdiction of this court has been invoked by way of filing the instant bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

S.No.                            Particulars of the Case
     1.      FIR Number                                298/2023
     2.      Concerned Police Station                  Rohat
     3.      District                                  Pali
     4.      Offences alleged in the FIR               Section 8/15 of the NDPS
                                                       Act & Section 472 of the
                                                       IPC
     5.      Offences added, if any                    Section 8/29 & 25 of the
                                                       NDPS Act

6. Date of passing of impugned 30.04.2025 order

2. The concise facts of the case as alleged in the FIR are that on 13.12.2023, SHO Nemaram and his team recovered 1 quintal 44 kg of illegal poppy husk from car number MP-09CX-2298, (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (2 of 10) [CRLMB-5808/2025] allegedly in possession of accused petitioner. The contraband was concealed in 10 plastic sacks placed on the seat and in the trunk of the vehicle. Accused Karan Singh was found escorting Ramesh Kumar's vehicle in another car. Since Ramesh Kumar had no valid license for possession or transportation of the narcotics, a case (No. 298/2023) was registered under the NDPS Act and IPC. The Baleno vehicle's number plate was also found to be fake. A charge sheet was filed against Ramesh Kumar under Sections 8/15, 25 NDPS Act and Section 472 IPC, and against Karan Singh under Sections 8/15, 25, and 8/15, 29 NDPS Act. Investigation under Section 173(8) CrPC is ongoing against five other accused.

Accused Mahendra and Narendra Singh were later arrested and remain in judicial custody; their bail applications have been rejected. The first bail application of the petitioner being SBCRLMB No.9100/2024, which was dismissed as not pessed vide order dated 22.08.2024. Hence, the instant bail application.

3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-

petitioner and he has been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

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5. Heard and considered the submissions made by both the parties and have perused the material available on record.

6. After rejection of the first bail application, Seizing Officer Nemaram was examined during trial as Prosecution Witness No. 1 (PW-1). Even during the examination-in-chief of this key witness, it emerged that some of the accused individuals fled the scene after allegedly assaulting the petitioner. When authorities arrived at the location, the petitioner was discovered lying near the roadside in a pool of blood. According to the prosecution's case, a truck driver informed the police about the incident involving the petitioner's assault. However, the question of whether the petitioner had exclusive and conscious possession of the vehicle and the contraband, or whether he is the owner of the vehicle or the contraband, remains highly debatable, particularly in light of the arguments presented in court. The petitioner has remained in custody for the past one and a half years. Furthermore, the submissions regarding non-compliance with mandatory legal provisions cannot be overlooked.

7. The co-accused Karan Singh has been enlarged on bail by this Court vide order dated 25.09.2024 passed in SBCRLMB No.9904/2024. The said order is being reproduced hereunder:-

1. The jurisdiction of this Court has been invoked by way of filing the instant second bail application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

S.No.                                  Particulars of the Case

     1.    FIR Number                                       298/2023

     2.    Concerned Police Station                         Rohat

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 [2025:RJ-JD:24555]                     (4 of 10)                     [CRLMB-5808/2025]




  3.   District                                        Pali

  4.   Offences alleged in the FIR                     Under Sections 8/15 of NDPS Act
                                                       and 472 IPC

  5.   Offences added, if any                           Sections 8/29 & 8/25 of the
                                                       NDPS Act

  6.   Date of passing of impugned order               16.07.2024

2. In nutshell the brief facts of the case are that on 13.12.2023, near the Nimbali Toll, the SHO, PS Rohat alongwith his team intercepted a Baleno Car being its registration No.MP09 CX2298, which was being driven by co-accused Ramesh Kumar. During search, the police party recovered 10 plastic bags of poppy husk.

The weight of these bags was 144 Kg. The co-accused Ramesh Kumar was arrested and interrogated. He disclosed that the present petitioner has loaded 10 bags of poppy husk in the Baleno bearing registration No.MP09 CX2298 from his Creta Car (registration No.BR01 FP3217) and escorted him. Thus, the police took action against the petitioner on the premise that he conspired with the co-accused and his car was being used for transportation of illegal contraband for which a case under Section 8/15 of the NDPS Act and Section 472 IPC got registered.

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5. I have considered the submissions made by both the parties and have perused the material available on record.

6. Perusal of the record revealing that the petitioner is not the registered owner of the vehicle in question from which the recovery of the alleged contraband got affected. It is the case of the prosecution that upon receipt of an information that a driver of the Baleno Car was assaulted by some unknown person near Nimabli Toll Plaza near NH 62, the DST team of the Police went to the spot and found that one Ramesh Kumar was there in a wounded condition. He stated to the police that he was beaten by the petitioner. The Baleno car and Ramesh Kumar were relegated to the Police Station, Rohat, District Pali and the victim Ramesh Kumar was sent to the Medical Center for his treatment. After lapse of some time, upon search, 10 bags of poppy husk were recovered from the Baleno Car. It is interesting that there is no evidence to show or suggest that the contraband lying in the Baleno Car belongs to the petitioner. No material to show domain of the petitioner over the car and likewise nothing is there to establish direct connectivity between the petitioner and the contraband. It is note-worthy that during investigation, CCTV footages of the Cameras installed on the way were collected by the Investigating Officer and a memo of analysis of which is available on record. A perusal of the memo of watching footage revealing that the car was being driven by accused Ramesh Kumar and it is totally negating presence of the petitioner in the car.

7. The another aspect of the matter is that there was a personal dispute between the petitioner and the accused Ramesh Kumar for the allegation that the petitioner Karan Singh was doubting upon accused Ramesh Kumar for either having illicit relations with his (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (6 of 10) [CRLMB-5808/2025] wife or for molesting her. Be that as it may, this Court without diving deep into this controversy, would like to see that whether any material is available on record to show connectivity of the petitioner either with the vehicle or with the recovered contraband. Prima facie case is in favour of the petitioner and I am of the view that the petitioner has a good and strong case for grant of bail. Looking to the high probability that the trial may take long time to conclude, this Court deems it just and proper to grant the benefit of bail to the petitioner.

8. When comes to the impediment contained under Section 37 of the NDPS Act, it is considered relevant to refer to the recent ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon'ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra) relevant to the present matter are reproduced below:

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (7 of 10) [CRLMB-5808/2025] general law on bails (Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (8 of 10) [CRLMB-5808/2025] laws - be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act."

(Emphasis Supplied)

9. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21.

10. At the stage of hearing of a bail plea pending trial, although this Court is not supposed to make any definite opinion or observation with regard to the discrepancy and legal defect appearing in the case of prosecution as the same may put a serious dent on (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (9 of 10) [CRLMB-5808/2025] the State's case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, around five months of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.

10. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the (Downloaded on 23/05/2025 at 10:50:46 PM) [2025:RJ-JD:24555] (10 of 10) [CRLMB-5808/2025] learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

10. Considering the overall facts and circumstances of the case and the fact that petitioner is behind the bars for around one and half years thus, looking to the fact that there is high probability that the trial may take long time to conclude and given the flagrant non-compliance with these mandatory provisions, this Court finds that the continued detention of the petitioner is not justified thus it is deemed suitable to grant the benefit of bail to the petitioner.

11. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

(FARJAND ALI),J 31-Mamta/-

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Rajasthan High Court - Jodhpur