Virendra Kumar Alias Viru Alias Kishan vs State Of Rajashan (2025:Rj-Jd:43840) on 6 October, 2025

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Rajasthan High Court - Jodhpur

Virendra Kumar Alias Viru Alias Kishan vs State Of Rajashan (2025:Rj-Jd:43840) on 6 October, 2025

1. The jurisdiction of this court has been invoked by way of filing an 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                                  291/2021
     2.     Concerned Police Station                    Chhoti Sadari
     3.     District                                    Pratapgarh
     4.     Offences alleged in the FIR                 Section 8/15 of the NDPS
                                                        Act
     5.     Offences added, if any                      -
     6.     Date of passing of impugned 18.08.2025
            order


2.        The   brief   and   relevant        facts,     as    emerging        from   the

prosecution record, are that on 30.09.2021, the then Station House Officer, Police Station Chhoti Sadri, Shri Devilal, along with (Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (2 of 8) [CRLMB-11350/2025] the accompanying police team and investigation material, proceeded from the police station for routine patrolling. At around 04:10 PM, while the team was traversing the route from Bhatkheda to Kesunda, they noticed a white Scorpio vehicle approaching from the opposite direction, conspicuously without a front number plate, with a lone occupant seated in the driver's seat. Upon sighting the police vehicle, the driver, appearing alarmed, abruptly turned the vehicle around and attempted to flee in the direction from which he had come.

2.1. The police team immediately pursued the said vehicle, during which the driver accelerated at high speed, navigating through Kesundakheda towards Kesunya, and eventually turned onto a kutcha (unpaved) road leading to Pratap Kesher, near the cremation ground. There, the driver abandoned the vehicle by the roadside and attempted to escape on foot. Constable Mukesh Kumar (No. 555) identified the fleeing person as Virendra alias Veeru Anjana. While Constable Ashok Kumar and driver Chandrapal Singh were instructed to secure the Scorpio vehicle, the Station House Officer, accompanied by the remaining team members, chased the accused. However, owing to waterlogged fields and nearby drains caused by rainfall, the accused managed to evade capture.

2.2. Subsequently, the police team returned to the spot and, suspecting illicit activity, conducted a search of the abandoned Scorpio. Upon inspection, the vehicle was found to contain seventeen gunny bags, which, when weighed including the packaging, totaled 343 kilograms of illegal poppy straw. The (Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (3 of 8) [CRLMB-11350/2025] recovered contraband was duly seized, and necessary procedural formalities were carried out in compliance with statutory provisions.

2.3. During the course of investigation, the present petitioner/accused, who had absconded from the scene, was later taken into custody on 18.12.2022 pursuant to an order of the competent court, after being produced from Sub-Jail, Chhoti Sadri, in connection with another case. Upon completion of investigation, a charge-sheet was filed against the petitioner for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. His earlier bail application being SBCRLMB No.1746/2025 dismissed vide order dated 19.05.2025. 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.

3.1. 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.

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

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5. Upon a meticulous consideration of the record and a dispassionate evaluation of the testimony of PW-3 Mukesh, this Court is constrained to observe that the very substratum of the prosecution case appears to rest upon precarious evidentiary footing. The alleged identification of the petitioner emerges not from any categorical assertion but from a speculative perception, which the witness himself has conceded was founded upon mere presumption and not upon any clear, ocular recognition. Such conjectural identification, when divorced from corroborative material, cannot be regarded as a reliable foundation to sustain the prosecution's allegation of conscious possession or participation in the alleged recovery.

5.1. The witness's deposition, when read in entirety, reveals glaring infirmities and procedural irregularities which substantially erode the integrity of the prosecution narrative. His unequivocal admission--"विरे न्द्र पर मैंने कभी कोई सम्मन, वारण्ट तामील नही ं कराया था, ना ही मैं विरे न्द्र के किसी पारिवारिक आयोजन में शामिल हुआ। व्यक्तिगत तौर पर मैं विरे न्द्र को नही ं जानता और मैं मरजीवी का बीट कां स्टेबल भी नही ं रहा हूँ"--discloses that he bore no prior acquaintance with the petitioner. The further assertion that "पीछे से भागते हुए मुझे आरोपी विरे न्द्र उर्फ़ वीरू की तरह लगा"

unmistakably demonstrates that the purported identification is grounded in assumption rather than direct perception. When such vacillating testimony forms the linchpin of the prosecution case, the resultant uncertainty becomes fatal to the strength of its edifice.

(Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (5 of 8) [CRLMB-11350/2025] 5.2. Equally significant are the procedural lapses reflected in the witness's cross-examination. His acknowledgment that he neither subscribed to any seizure memo (fard jabti), nor participated in the preparation of the naksha mauka (site plan), and that his presence was not contemporaneously recorded in the Rojnamcha, raises grave doubts regarding the authenticity of the seizure proceedings themselves. The absence of such crucial procedural documentation, when juxtaposed with the witness's inability to specify the authorship or timing of the seizure memos, lends an unmistakable hue of irregularity to the prosecution's account of events.

5.3. These discrepancies, contradictions, and omissions are not peripheral or inconsequential; rather, they strike at the very root of the prosecution's case, dislodging its evidentiary coherence. The Court cannot overlook that the prosecution's own witness, who was part of the alleged police team involved in the chase and recovery, has, through his testimony, diluted the prosecution's claim both as to the identity of the petitioner and the procedural sanctity of the alleged seizure.

5.4. In this backdrop, the Court is persuaded to hold that the evidentiary substratum of the case stands considerably undermined. The identification of the accused, resting as it does on conjectural perception rather than categorical recognition, and the conspicuous procedural lapses revealed in cross-examination, collectively attenuate the prosecution's narrative to a substantial degree.

(Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (6 of 8) [CRLMB-11350/2025] 5.5. It is further pertinent to underscore that if the testimony of Constable PW-3 Mukesh, the solitary witness sought to connect the petitioner with the alleged occurrence is not treated as a concrete and reliable piece of evidence of unimpeachable quality, the very edifice of the prosecution's case would crumble under its own infirmities. The deposition, being riddled with vacillation, conjecture, and procedural ambiguity, fails to inspire the confidence required to sustain a charge of such gravity. In absence of any independent corroboration or contemporaneous documentary support, the prosecution's case stands reduced to a mere semblance of accusation, unsupported by substantive proof. Consequently, if the testimony of PW-3 is excluded from consideration for want of credibility, nothing substantial would remain on record to justify either the continuation of investigation or the further prolongation of the petitioner's incarceration. Such a situation compels judicial circumspection, for to permit the deprivation of liberty upon such fragile evidentiary foundation would amount to a miscarriage of justice.

5.6. It is trite law that pre-trial incarceration cannot assume a punitive complexion. Where the core of the accusation itself stands shaken by the testimony of a prosecution witness, the continued deprivation of liberty of the accused would offend the constitutional ethos enshrined under Article 21. The petitioner has been in judicial custody since 18.12.2022, and as per the charge- sheet, eighteen prosecution witnesses have been cited, out of whom only thirteen have been examined so far. The pace of the proceedings thus indicates that the conclusion of trial is likely to (Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (7 of 8) [CRLMB-11350/2025] take a considerable span of time, further strengthening the plea that continued incarceration serves no pragmatic purpose. 5.7. Having regard to the nature and quantity of the contraband, which does not fall within the purview of the commercial quantity as defined under the NDPS Act, the rigour of Section 37 of the Act is not attracted in the present case. Consequently, the restrictions prescribed therein do not operate as a bar to the grant of bail.

6. Viewed thus, the balance between the right to personal liberty and the societal interest in ensuring a fair trial tilts in favour of the petitioner. Having regard to the cumulative effect of the infirmities highlighted hereinabove, the nature of the evidence adduced so far, the pendency of the trial with several witnesses yet to be examined, and guided by the settled principle that bail is the rule and jail is the exception, this Court is of the considered opinion that the further incarceration of the petitioner would serve no useful purpose and is, therefore, unwarranted at this stage.

7. 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 (Uploaded on 08/10/2025 at 10:59:41 AM) (Downloaded on 08/10/2025 at 07:23:14 PM) [2025:RJ-JD:43840] (8 of 8) [CRLMB-11350/2025] 50-Mamta/-

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Rajasthan High Court - Jodhpur