Rajasthan High Court - Jodhpur
Ncb vs Rajesh Kumar on 8 April, 2021
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Bail Cancellation Application No. 23/2019
Narcotics Control Bureau 18-E, Chopasani Housing Board,
Jodhpur.
----Petitioner
Versus
Rajesh Kumar S/o Vishwa Nath Prasad, R/o Village And Post
Musela, Teh. Mohanpur, Dist. Gaya, Bihar
----Respondent
For Petitioner(s) : Mr. M.P. Pareek, Spl. PP
For Respondent(s) : Mr. B.R. Bishnoi
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 08/04/2021 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 persons are residents of Bihar. They failed to offer any explanation for being found in (Downloaded on 09/04/2021 at 08:45:45 PM) (2 of 3) [CRLBC-23/2019] 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 (Downloaded on 09/04/2021 at 08:45:45 PM) (3 of 3) [CRLBC-23/2019] 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 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.
(SANDEEP MEHTA),J 128-Mamta/-
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