Rajasthan High Court - Jodhpur
Sunil Dudi vs State Of Rajasthan on 18 August, 2023
Author: Rajendra Prakash Soni
Bench: Rajendra Prakash Soni
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. 2nd Bail Application No. 9266/2023
Sunil Dudi S/o Sh. Opa Ram Vishnoi, Aged About 32 Years, R/o
Matwalon Ki Dhani, Balasati, P.s. Bilara, District Jodhpur.
(Presently Lodged At Central Jail, Ajmer)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Vikas Balia, Sr. Advocate
Mr. Manish Pitaliya
For Respondent(s) : Mr. B.R. Bishnoi, PP
Mr. J.S. Choudhary, Sr. Advocate
assisted by Mr. Pradeep Choudhary
Mr. Kishan Lal, Add. S.P., Shahpura,
Bhilwara
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
18/08/2023
1. Arrested in furtherance of investigation into FIR No.55/2021,
registered at Police Station Rayala, District Bhilwara, petitioner
has filed this second application under Section 439 Cr.P.C. for
releasing him on bail. After investigation into the matter, besides
petitioner, various other accomplices are charged for various
offences under various Acts. The petitioner is charge sheeted for
offence under Section 8/29 of the NDPS Act. The first application
of the applicant for bail was disposed of without considering the
merits of the case since it was not pressed by the petitioner.
2. Before I proceed to examine the rival contentions in
connection with the questions of bail, it would be appropriate to
briefly state the facts of the present case which are that on
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11.04.2021 at about 11.52 p.m. Gaj Raj, S.H.O. of police station
Rayala (District Bhilwara) received a telephonic information that
some unknown miscreants had fled away in two Scorpio cars and
two Isuzu pickups after firing at the police team in the Kotri police
station area of Bhilwara District. Both the Pickup may be found
loaded with contraband drugs. At around 2:00 a.m. a Scorpio car
bearing registration number RJ-15-UB-1010 and a tarpaulin
covered Isuzu pickup bearing registration number RJ-06-GB-3350
came at a high speed which were chased by police party. After
some time, both Isuzu pickup and Scorpio cars were found parked
outside the village Liradiya Kheda with two persons with weapons
in their hands standing on both sides of each vehicle. On being
challenged by the police, all of them started firing on the police
party, a bullet hit Constable Pawan Kumar, due to which he fell
down and later died. Those persons abandoned the Isuzu vehicle
on the spot and fled away with the Scorpio car. After necessary
formalities, when the Isuzu pickup was searched, a total of 600 kg
of poppy straw, an illegal contraband was recovered from it, which
was seized.
3. After investigation, charge-sheet has already been filed
against the petitioner besides Rajesh @ Raju Fauzi, Lunaram,
Asharam, Balwant Dhakar @ Ballu, Sunil Dudi, Ramdev, Netaram
and Prakash.
4. Mr. Vikas Balia, learned senior counsel for the petitioner
praying for bail to the petitioner urges that as per admitted
position found in the charge-sheet, filed after investigation into
the matter, the instant matter relates to an offence allegedly
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committed within the jurisdiction of police station Rayala. The
petitioner never entered into jurisdiction of Rayala police Station
area. Neither he confronted to the Rayala Police team at Liradiya
Kheda nor was even seen by the Rayala Police while allegedly
escorting the contraband.
5. It is further argued that Scorpion car of the petitioner Sunil
Dudi was separated from the vehicle of the other accused at Kotdi
village itself and after leaving Kotdi, while turning towards other
side, he reached Devkheda village in Shahpura police station area
and from there he proceeded towards Jodhpur. The instant case
was registered in police station Rayala of Bhilwara district, where
the vehicle of Raju Fauzi was found abandoned. Therefore no
question could arise of Sunil Dudi escorting the vehicle of Raju
Fauzi up to Liradiya Kheda or sharing a common intention of
encountering or murdering a policeman because it was
unimaginable that there could be a an encounter with the police
even in Rayala police station area. After investigation, police has
also found only the case of escorting against the petitioner and
filed the charge sheet for the offence punishable under Section
8/29 of the NDPS Act only.
6. It is further argued that no poppy straw has been seized
from the possession of the present applicant. He is in custody
since 31.05.2022. Investigation is complete. Charge-sheet has
been filed. Final conclusion of trial is likely to take sufficient long
time. With the aforesaid submissions, it was prayed that the
present petition be allowed and petitioner may be enlarged on
bail.
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7. On the other hand, learned Public Prosecutor and Mr. J.S.
Choudhary, learned senior counsel appearing from the victim side
vehemently opposed the submissions advanced by the learned
counsel for the petitioner. It is urged that the petitioner is
arraigned on the basis of information of co-accused under Section
27 of the Evidence Act. It is also his contention that the petitioner
was a member of the team which had committed the murder of
the policemen in the area of Police Station Kotdi in Bhilwara
District prior to the present incident of Police Station Rayala.
8. He would contend that petitioner, being part of common
object to commit murder of a person in Rayala is a factual issue
which cannot be addressed at this stage and ought to be
determined only after trial. While clubbing the events together
that took place in the four police station areas, they argued that
accused do not deserve any sympathy as the petitioner is a drug
peddler. Contraband of commercial quantity has been seized from
the co-accused; that release of accused will hamper the trial; that
the drugs recovered from the co-accused fall within the ambit of
commercial quantity and the bar as contained in Section 37 of the
NDPS Act is attracted.
9. The respondent counsel would also point out that petitioner
has been charged for the offences punishable by severe
punishment; that the very harshness of the penalty is
demonstrative of the severity of the crime. Contrary to the
contentions of PP, it is argued by the counsel for the victim that
the allegation against the petitioner Sunil Dudi is also made out
for being involved in the common intention of murdering a
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policeman Pawan Kumar. The charges are yet to be framed in the
trial and there is every possibility of said charges being framed
against the petitioner. Therefore, considering the seriousness of
the crime, he opposed the bail application.
10. In rebuttal, learned counsel for the petitioner has termed it
as mere conjecture and has argued that had it been so, it would
have been considered proved by the police in investigation itself.
It is the contention of the counsel for the petitioner that after their
investigation, police did not find proved that the petitioner was
complicit in the shared objective of murdering the policeman in
Rayala police station area.
11. I have given my thoughtful consideration to the arguments
advanced by learned counsel for the parties and have perused the
record carefully.
12. It is well settled that the jurisdiction of a Court to grant bail
for offences under NDPS Act, bail in cases of recovery of
commercial quantity is circumscribed by the provision of Section
37 of the Act. The bail can be granted only when there are prima
facie reasonable grounds in favour of petitioner to doubt case of
prosecution.
13. The facts and evidence upon which, prosecution relies to
prosecute the petitioner, as derived from the charge sheet, can be
precisely summarized as follows:-
fnukad 10-04-2021 dks MksMk pwjk Hkjus ds ckn jktw QkSth, lquhy
MwMh ls laidZ djrk gSA jktw QkSth ds :V ls vufHkK gksus ls rFkk lquhy
MwMh ds lkFk tks/kiqj pyus dh ckr iwoZ esa gh r; gksus ls os yksMsM gfFk;kj
ysdj ,d lkFk e/;izns"k ls jokuk gksrs gS ------
LdkWfiZ;ks la- vkj ts 14 ;w th 4301 dks usrjke pyk jgk Fkk] cxy
dh lhV esa lquhy MwMh o chp dh lhV esa jke fuokl cSBk gqvk FkkA blds
ihNs ,d ,e-,p- ikflax bZlwtw fidvi esa MksMk pwjk Hkjdj frjiky cka/kk
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gqvk Fkk ftldks izdk"k dkaok pyk jgk Fkk o ikl esa jkenso cSBk gqvk FkkA
rhljs okgu LdkWfiZ;ksa la- vkj ts 15 ;w ch 1010 dks ikcwjke xksjfl;k pyk
jgk Fkk rFkk cxy okyh lhV ij ;"koar flag mQZ caVh cSBk gqvk FkkA pkSFks
okgu bZlwtw fidvi vkj ts 06 th ch 3350 dks jes"k Hkkf.k;k pyk jgk Fkk
o cxy dh lhV ij jktw QkSth cSBk Fkk ---------
mDr lHkh okgu dksVMh&uanjk; jksM ij eulk frjkgk ij
vkdj :drs gS] ihNs&ihNs dksVMh iqfyl tkCrk dh izkbZosV fLo¶V dkj Hkh
vkdj :drh gSA dksVMh iqfyl Fkkuk tkCrk budks idMus dk iz;kl djrk
gS ogka iqfyl tkCrk rFkk bu okguks esa lokj O;fDr vkeus lkeus gksdj
>Mi pkyw gks tkrh gSA ikcwjke xksjfl;k] dkWLVscy vksadkj ij xksyh pykrk
gS ftldk ckn esa fu/ku gks tkrk gSA lqfuy MwMh xSax dh nksuks xkfM;k tks
dkfQys esa vkxs Fkh] eulk dh rjQ tkus okys jkLrs ij Hkkx tkrh gS vkSj
jktw QkSth xSax dh "ks'k nksuks xkfM;ka okil ihNs dh rjQ eksM dj Hkkxrs
gSA bl ?kVuk dze ds laca/k esa iqfyl Fkkuk dksVMh ij ,Q-vkbZ-vkj- la-
72@2021 ntZ gksrh gS------
ogka ls lqfuy MwMh vius nksuks okguks dks ysdj "kkgiqjk Fkkuk {ks= esa
nso[ksMk ls iksafMªd tkus okys ekxZ ij jktw [kkjksy निवासी दे वखेड़ा uked
O;fDr ds ckMs esa ,e- ,p- ikflax bZlwtw xkMh ls MksMk pwjk [kkyh dj Nqik
nsrs gSA ogka ij jkenso dks निगरानी के लिए jksd fn;k tkrk gSA bZlwtw xkMh ls
izdk"k dkoka dks tks/kiqj ds fy;s jokuk dj nsrk gSA lqfuy rFkk jkefuokl
viuh LdkWfiZ;ks dkj la- vkj ts 14 ;w th 4301 ls og Hkh tks/kiqj jokuk gks
tkrk gSA "kkgiqjk Fkkuk {ks= esa tCr fd;s x;s mDr MksMk pwjk ds laca/k esa
iqfyl Fkkuk "kkgiqjk esa ,QvkbZvkj la- 133@2021 ntZ gksrh gS------
DosLVh dh ikyuk esa ukdkcafn;k gksus ls jkf= yxHkx nks cts ljsjh
QkVd ls dqafM;k xkao tkus okyh jksM ij jktw QkSth xSax ds nksuks okgu]
jk;yk iqfyl Fkkuk ds okgu ls dzkWl djrs gSA jk;yk iqfyl tkCrk }kjk
mudk ihNk fd;k tkrk gSA fyjfM;k [ksMk ds ikl jktw QkSth xSax ds
lnL;ks rFkk jk;yk iqfyl tkCrk esa >Mi o eqBHksM gksrh gSA ogka ij
dkWLVscy iou dqekj ds xksyh yxrh gS ckn esa mldk fu/ku gks tkrk gS
rFkk jktw QkSth xSax ds lnL; vius okgu ysdj ?kVukLFky ls Hkkx tkrs
gSA bl ?kVuk ds laca/k esa jk;yk iqfyl Fkkuk esa ,QvkbZvkj la- 55@2021
ntZ gksrh gSA orZeku izkFkZuk i= dk ekeyk blh ,QvkbZvkj ls lacaf/kr gS
----------
jk;yk Fkkuk {ks= ls fudyus ds i"pkr jktw QkSth xSax ds lnL; jktlaen ftys ds Hkhe iqfyl Fkkuk {ks= esa izos"k djrs gS rFkk /keZrykbZ rkykc ds ,uhdV dh iky ds ihNs MksMk pwjk ls Hkjs LdkWfiZ;ks la- vkj ts 15 ;w ch 1010 dks NksMdj pkSFks okgu ls taxy ds jkLrs Hkkx tkrs gSA bl cjkenxh ds lanHkZ esa iqfyl Fkkuk Hkhe {ks= esa ,d vU; ,QvkbZvkj la- 194@2021 ntZ gksrh gSA
14. In present incident of Police Station Rayala, after investigation in relation to that, after finding the case proved against various accused, charge sheet was presented by police, proposing prosecution as described below:- (Downloaded on 12/11/2023 at 04:29:40 AM)
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Charge Sheeted for the offences U/
S.No. Name of Accused
s
Sec.147,148,149,332,353,307,411, 467,468,471, 474,302/34 & 120B of the IPC Rajesh @ Raju 1 Sec. 3&4 of PDPP Act Fauzi Sec. 8/15 NDPS Act Sec. 3/25 read with Sec.
35,25(6),28&5/27 of Arms Act Sec. 225,212,201,202,302 IPC 2 Lunaram Sec. 27A NDPS Act 3 Asharam Sec. 8/29 NDPS Act Balwant Dhakar @ 4 Sec. 8/29 NDPS Act Ballu 5 Sunil Dudi Sec. 8/29 NDPS Act 6 Ramdev Sec. 8/29 NDPS Act 7 Netaram Sec. 8/29 NDPS Act 8 Prakash Sec. 8/29 NDPS Act Investigation kept pending U/s 173(8) of the Cr.P.C:-
1. Bhutaram Bishnoi
2. Ramniwas
3. Vikram @ Vikki
4. Anil Janwani
15. After considering the rival submissions made by the learned counsels for the parties, on going through the content of charge-
sheet it is admitted case of the prosecution that the petitioner was traveling in Scorpio No.RJ-14-UG-4301 and that no contraband were loaded in it; that petitioner did not entered into Police Station Rayala area to escort the vehicle of the co-accused Raju Fauzi; that petitioner was not present at the time of the police encounter at Liradiya Kheda; that petitioner left Kotdi for another destination and was not in the company of Raju Fauzi and others at Liradiya Kheda; that 600 Kg. of poppy straw has not been seized from possession of the petitioner and it has been seized from an abandoned vehicle of co-accused. Admittedly, no crime of escorting by petitioner was occurred in the area of Police Station Rayala District Bhilawara.
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16. On the basis of above facts, this court feels that the petitioner has available to him, substantial grounds so as to question the prosecution case. Thus, having regard to the overall facts and circumstances of the case and looking to the fact that the rigor of Section 37 of the N.D.P.S. act is duly satisfied so as to entitle the petitioner's release on bail.
17. Thus, without expressing any opinion on the merits of the case, this Court finds it expedient to allow the present bail application.
18. Accordingly, the second bail application is allowed and it is directed that the accused-petitioners Sunil Dudi S/o Sh. Opa Ram Vishnoi arrested in connection with the F.I.R. No.55/2021 of Police Station Rayala, District Bhilwara shall be released on bail provided he furnishes a personal bond and two surety bonds of sufficient amount to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. This order is subject to the condition that accused, within 7 days of his release and sureties, on the day of furnishing bail, will also furnish details of their all bank accounts, with bank and branch name, in shape of an affidavit, and submit legible copy of their Aadhar cards as well as front page of Bank pass book, for smooth recovery of penalty amount, if there arise a need for recovery of penalty under Section 446 Cr.P.C in future.
(RAJENDRA PRAKASH SONI),J 60-Payal/-
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