Rajasthan High Court - Jaipur
Sharvan S/O Phusaram vs Union Of Inida on 31 July, 2023
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 9941/2022
Sharvan S/o Phusaram, Aged About 28 Years, R/o Ward No. 04
Malanibas, , Ps Nokha Tehsil Nokha, District Bikaner, Raj
( Accused Presently Confined In Central Jail Sikar)
----Petitioner
Versus
Union Of Inida, Through Special P.p. And Con
----Respondent
For Petitioner(s) : Mr. Sonia Gill
Mr. Sunil Kumar Gill
For Respondent(s) : Mr. Tej Prakash Sharma, Spl. PP for
NCB
HON'BLE MR. JUSTICE FARJAND ALI
Order
31/07/2023
1. The present bail application has been filed on behalf of the petitioner under Section 439 Cr.P.C. for the alleged offences punishable under Sections 8/18, 8/25 and 8/29 of NDPS Act in connection with FIR No. 01/2020 registered at Police Station Narcotics Control Bureau (NCB), Office of Deputy Commissioner Narcotics, Kota.
2. Learned Public Prosecutor opposed the bail application.
3. Heard learned counsel for the petitioner as well as learned counsel for the Central Bureau of Narcotics (CBN), Shri T.P. Sharma and perused the order impugned and the other material available on record, particularly, the allegations levelled in the supplementary complaint dated 06.06.2022.
(Downloaded on 11/11/2023 at 06:43:32 PM)
(2 of 7) [CRLMB-9941/2022]
4. It is revealing that the team of CBN on 23.01.2020 intercepted a vehicle truck bearing registration No.RJ-19-GB2942. Upon search being made, it is alleged that a total of 18 Kilogram of opium was recovered from a secret chamber made in the body of truck. As per the allegations, the truck was being driven by one Prem Prakash S/o Bhiya Ram Bishnoi and the conductor was Bhupendra Singh @ Jalam Singh. A case under Section 8/18(B) of the NDPS Act got registered and both the accused Prem Prakash and Bhupendra Singh were arrested. It is stated that during the course of the investigation, the aforementioned accused disclosed the name of one Rakesh S/o Kalu Ram Jat being the person, who facilitated the crime. On 14.06.2020, the said Rakesh S/o Kalu Ram Jat was apprehended and was thoroughly interrogated. It is further stated that during the course of the investigation, the aforementioned accused Rakesh had disclosed the fact to the Investigating Agency that the recovered contraband was procured to him by some persons, in which, one of the names was of the present petitioner Shrawan Pandit. On the basis of the information supplied and the statement recorded under Section 67 of the NDPS Act, the present applicant was arraigned as an accused and subsequently thereby got arrested. The investigation is further revealing that the petitioner was already in custody in one other case in Sikar Jail (Raj.) wherefrom he was brought through a production warrant. As a matter of fact, he is behind the bars since 02.12.2021. The investigation with regard to the present petitioner is completed but still the charges have not been framed. Vide order dated 03.03.2023, a co-ordinate Bench of this Court has granted bail to the accused Rakesh in S.B. Criminal (Downloaded on 11/11/2023 at 06:43:32 PM) (3 of 7) [CRLMB-9941/2022] Miscellaneous III Bail Application No.11790/2022. The relevant portion is reproduced herein below:
"3. It is informed by wife of the petitioner that after rejection of the second bail application on 26.10.2021, a SLP was preferred before the Supreme Court and Supreme Court vide order dated 17.01.2022 granted liberty to the petitioner to apply for bail after arrest of the co- accused Jai Ram. Jai Ram was arrested on 08.07.2022. It is contended that date of incident asper the FIR is 23.01.2020. A period of more than three years has lapsed, still charges have not been framed. It is also contended that the only allegation against the petitioner is that from his mobile, a call was made to Prem Prakash-the main accused in this case. It is the case of the petitioner that his mobile was taken by Jai Ram to make a call and he has nothing to do with the contraband and no contraband as such has been recovered at his instance.
4. Learned Public Prosecutor has opposed the third bail application.
5. No one has put in appearance on behalf of NCB- respondent No.2.
6. I have considered the contentions.
7. Taking note of the fact that petitioner has remained in custody for a period of more than three years and still charges have not been framed, also taking note of the fact that there is no recovery of any contraband from the petitioner and co-accused Jai Ram has been arrested, also taking note of the fact that in the other case that was registered against the petitioner, he has been granted bail and in that case also while granting bail, the Court has observed that nothing was recovered from the petitioner, hence, I deem it proper to allow the third bail application.
8. Third bail application is accordingly, allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so."(Downloaded on 11/11/2023 at 06:43:32 PM)
(4 of 7) [CRLMB-9941/2022] 5. Shri T.P. Sharma, learned counsel appearing for the
respondent NCB firmly and candidly admits that no call data record in between the petitioner and the other accused person is available on record rather there is no such data. It is a matter of fact that the nature of accusation pertaining to Section 29 of the NDPS Act has been rejected by a co-ordinate Bench vide order dated 19.04.2023 qua co-accused Jai Ram subsequent to grant of bail to another co-accused Rakesh.
6. As a matter of fact, the sum and substance and the substratum of the allegation levelled against the applicant-
petitioner banks upon the disclosure statement made by accused Rakesh to the investigating agency while in custody and it is revealing that except the aforesaid statement, which is more confessional in nature, there is no other linking evidence so as to connect the petitioner with the alleged crime.
7. While pondering over the fetter contained under Section 37 of the NDPS Act, this court is well guided by the judgment passed by Hon'ble the Supreme Court in the case of Mohd. Muslim vs State Of Uttar Pradesh (Criminal Appeal No.1089/2011).
The relevant portion of this judgment is reproduced as under:
"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 18 As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections436, 437 and 439, Cr.P.C.) which classify offences based (Downloaded on 11/11/2023 at 06:43:32 PM) (5 of 7) [CRLMB-9941/2022] 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 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."
8. Here, in this case also, besides the fact that the accusation is under Section 29 of the NDPS Act, there is no direct evidence to connect him with the crime. One important factor is that the co- (Downloaded on 11/11/2023 at 06:43:32 PM)
(6 of 7) [CRLMB-9941/2022] accused Rakesh on whose behalf the present applicant has been made accused has been granted bail. The law of the land commands that equally placed persons must be treated equally. Thus, the ground of parity cannot be ignored. As far as the question of pendency of two more cases of identical nature against the petitioner is concerned, it is noticed that both the cases pertain to offence under Section 29 of the NDPS Act and based on the information supplied by the co-accused, no incriminating material was recovered from the petitioner in that matter. Thus, viewing from any angle, this court is satisfied that the present is a fit case for bail. It is deemed appropriate to direct the petitioner to inform the SHO P.S. Nokha regarding his Global Positioning System (GPS) location regularly every month till disposal of the trial by sharing the Google PIN of his location with the SHO, PS Nokha.
9. Consequently, the instant second bail application is allowed. It is ordered that the accused-petitioner - Sharvan S/o Phusaram arrested in connection with FIR No. Registered at Police Station Narcotics Control Bureau (NCB), Office of Deputy Commissioner Narcotics, Kota., shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of ₹50,000/- (Rupees Fifty Thousand) and two sureties of ₹25,000/- (Rupees Twenty Five Thousand) each to the satisfaction of the learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial. The condition for regularly (Downloaded on 11/11/2023 at 06:43:32 PM) (7 of 7) [CRLMB-9941/2022] intimating about his location once in a month till disposal of the trial shall be mentioned in the personal bond and surety.
(FARJAND ALI),J Anil/7 (Downloaded on 11/11/2023 at 06:43:32 PM) Powered by TCPDF (www.tcpdf.org)