Rakesh vs State Of Rajasthan on 10 December, 2024

[Cites 26, Cited by 0]

Rajasthan High Court - Jodhpur

Rakesh vs State Of Rajasthan on 10 December, 2024

1. This third application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.158/2020, registered at Police Station Bilara, District Jodhpur Rural, for offences under Sections 307/34 of IPC; Sections 8/15 of NDPS Act; and Sections 3/25 of Arms Act.

2. The first bail application No.7992/2023 filed on behalf of the petitioner was dismissed by this Court on 27.04.2023. The second bail application No.895/2024 filed by the petitioner came to be rejected by a detailed order dated 07.02.2024 passed by this Court. The order dated 07.02.2024 passed by this Court is reproduced below for ready reference:-

"1. This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.158/2020 registered at Police Station Bilara, District Jodhpur Rural, for offences under Sections 307/34 IPC, Section 8/15 of the NDPS Act and Sections 3 and 25 of the Arms Act.

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2. Learned counsel for the petitioner submitted that as per prosecution, the SHO Police Station Bilara received a source information regarding transportation of narcotics and illegal weapons in an unnumbered scorpio car, which was being escorted by an unnumbered swift dezire car. The police party in furtherance of the aforesaid information started search of the above-mentioned vehicles and reached near Jhakh river area. Thereupon, when unnumbered scorpio vehicle and swift dezire car came in that area, the same were flagged down. However, the persons sitting in the offending vehicles started firing towards police personnel. The present petitioner, who was seen sitting in the unnumbered swift dezire car with the co- accused Raghunath Bishnoi escaped from the place of incident along with the other coaccused persons. As per the prosecution, during the search of the unnumbered scorpio vehicle, contraband (poppy husk/straw) weighing 450 kgs. in 24 plastic bags was recovered.

3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. The petitioner has been arrested after about one year from the date of alleged incident without there being any material indicating his involvement in the commission of alleged crime. Learned counsel submitted that as per prosecution, one Shrawan Kumar, Constable identified the petitioner as a person who escaped from the place of the incident. It was contended that statements of Shrawan Kumar have been recorded before competent criminal court as PW-1, wherein he has admitted that he had never met with the accused person previously and no test identification parade to confirm his involvement/complicity was conducted by the investigating agency. Learned counsel further contended that since the recovery of the contraband was effected from a vehicle in transit, the compliance of the provisions of Section 43 of the NDPS Act ought to have been made by the prosecution.

4. Learned counsel vehemently further contended that though as per prosecution, the petitioner ran away from the place of incident in an unnumbered swift dezire car, however the same has not been recovered by the investigating agency. Learned counsel submitted that there is absolutely no evidence in the form of call details, call locations etc. showing involvement of the petitioner in the alleged crime with the co-accused persons. Learned counsel thus, implored the Court to enlarge the petitioner on bail.

5. Per contra, learned Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that the petitioner is a habitual offender. The petitioner is also involved in a previous case under NDPS Act, therefore, the bar/embargo under Section 37 of the NDPS Act, 1985 would apply in the present case. Learned Public Prosecutor further submitted that it is a settled law that no person accused of offence involving trade of commercial quantity of narcotics is liable to be released on bail, unless the court is satisfied that there are reasonable grounds of believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail. Learned Public Prosecutor submitted that the following criminal cases are pending trial against the petitioner:

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[2024:RJ-JD:49322] (3 of 8) [CRLMB-5519/2024] Sr. FIR Number & Status and date No. Case Number Police Station Section of arrest & with Date Release on any previous occasion

1. 64/2021 भोजासर 8/15 एनडीपीएस एक्ट व धारा -

3/25 आर्म्स एक्ट

2. 76/2018 भोजासर 302,307,323,427,147,148,1 -

49,120 बी भा.द.सं. व धारा 3/27 आर्म्स एक्ट

3. 111/2018 भोजासर 307,427/34 भा.द.सं. -

4. 149/2018 भोजासर 147,148,149,341,323,307, -

427 भा.द.सं. व धारा 3/25 आर्म्स एक्ट

5. 88/2019 सुजानगढ़ चुरू 392 भा.द.सं. -

6. 126/2018 झंवर 307 भा.द.सं. -

7. 204/2020 बेगु चित्तौड़गढ़ 365,307 भा.द.सं. -

8. 73/2019 बाप 143,341,323,307,353/34 -

भा.द.सं. व धारा 3/27 आर्म्स एक्ट

9. 145/2019 बाप 147,148,341,323,307/149 -

भा.द.सं

6. Learned Public Prosecutor thus urged that the petitioner does not deserve indulgence of bail.

7. Heard learned counsel for the petitioner and learned Public Prosecutor.

8. For the sake of convenience, Section 37 of the NDPS Act is reproduced hereinbelow:

"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 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 (Downloaded on 16/12/2024 at 09:28:52 PM) [2024:RJ-JD:49322] (4 of 8) [CRLMB-5519/2024] 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."

9. This Court has carefully gone through the statements of Shrawan Kumar (PW-1). It has been alleged in the statement of the witness PW-1 that he had seen the present petitioner running away from the place of incident. The statement of the witness PW2 to PW-4 also clearly establishes the presence of the present petitioner at the place of incident.

10. Hon'ble the Supreme Court of India in the case of Union of India Vs. Ajay Kumar Singh @ Pappu [SLP (Crl.) No.2351/2023] decided on 28.3.2023 has held as under:

"16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in commercial quantity of narcotics is liable to be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail."

11. In the present case, admittedly the petitioner was involved in a previous case under the NDPS Act. In the considered opinion of this Court, the operative portion of Section 37 of the NDPS Act is a negative form of mandate prescribing the enlargement of bail to any person accused of commission of offences under the NDPS Act, only if the twin conditions are satisfied. Looking to the criminal record of the petitioner, this Court is unable to record a finding in favour of the petitioner that there are reasonable grounds for believing that he is not guilty of any offence under NDPS Act and that he is not likely to commit any offence while on bail.

12. In view of aforesaid discussion and looking to the serious nature of accusation and gravity of offence, this Court is not inclined to grant bail to the petitioner under Section 439 Cr.P.C.

13. Accordingly, the second bail application filed by the petitioner under Section 439 Cr.P.C. is dismissed.

14. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same."

3. The counsel for the petitioner thereafter, moved an application under Section 362 Cr.P.C., before this Court seeking rectification of a clerical mistake which occurred in para 9 of the order dated 07.02.2024. The application came to be allowed vide order dated 09.05.2024 and the following "The statement of witnesses PW.2 to PW.4 also clearly (Downloaded on 16/12/2024 at 09:28:52 PM) [2024:RJ-JD:49322] (5 of 8) [CRLMB-5519/2024] establishes the presence of the presence petitioner at the place of incident." was ordered to be incorporated in the order.

4. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

5. Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 30.05.2021. Till date out of total 34 cited prosecution witnesses, statements of only 4 cited prosecution witnesses have been recorded before the competent criminal Court. The trial against the petitioner is not likely to be concluded in the near future and therefore, the petitioner may be enlarged on bail.

6. Learned counsel further submitted that true it is that the petitioner is facing trial in connection with 9 criminal cases but he cannot be deprived of his liberty by imprisonment as a result of a prolonged trial in violation of his fundamental right under Article 21 of the constitution of India. Learned counsel contended that Hon'ble Supreme Court of India in the case of "Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr.": Crl. Appeal No.2787/2024 was pleased to hold that the rigours as provided under Section 37 of the NDPS Act would not come in the way in the cases where delay in trial is not attributable to the accused and the right of the accused to have a speedy trial as enshrined under Article 21 of the Constitution of India is being infringed.

It was contended that the petitioner is still an accused and not a convict and therefore, he is presumed to be innocent until proven guilty before the competent criminal Court. On these grounds, learned counsel implored the Court to enlarge the petitioner on bail.

7. Per contra, learned Public Prosecutor has vehemently opposed the bail application. It was submitted that the petitioner is accused in large (Downloaded on 16/12/2024 at 09:28:52 PM) [2024:RJ-JD:49322] (6 of 8) [CRLMB-5519/2024] number of criminal cases including NDPS case. Therefore, in case, he is enlarged on bail he is likely to repeat the offences. It was also submitted that the conditions for grant of bail enumerated under Section 37 of the NDPS Act are not satisfied in the present case. Learned Public Prosecutor submitted that Hon'ble Apex Court in Narcotics Control Bureau Vs. Mohit Agarwal reported in 2022 SCC OnLine SC 89 was pleased to observe that the length of incarceration is by itself not a consideration and that can be treated as a persuasive ground for granting relief under Section 37 of the NDPS Act. He thus prays that the present petitioner may not be enlarged on bail.

8. The Hon'ble Supreme Court of India in the case of State of Madhya Pradesh vs. Kajad reported in (2001) 7 SCC 673, has observed as under:-

"......Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of subsection (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for."

9. The Hon'ble Supreme Court and co-ordinate Benches of this Court in plethora of judgments has held that a bail Court while dealing with the matters under NDPS Act involving commercial quantity has to record its (Downloaded on 16/12/2024 at 09:28:52 PM) [2024:RJ-JD:49322] (7 of 8) [CRLMB-5519/2024] satisfaction in light of Section 37 of the NDPS Act. The mandate contained in Section 37 of NDPS Act has been discussed by the Hon'ble Supreme Court and this Court in the following cases:-

i. State of Kerela & Ors. Vs. Rajesh & Ors. reported in AIR 2020 SC 721, ii. Union of India Vs. Ratan Malik reported in (2009) 2 SCC 624, iii. Narcotics Control Bureau Vs. Kishan Lal & Ors., reported in AIR 1991 SC 558, iv. Union of India Vs. Shiv Shaurav Kesari reported in (2007) 7 SCC 798, and v. Intelligence Officer, Narcotics C. Bureau Vs. Sambhu Sonkar & Ors., Control reported in AIR 2001 SC 830.

10. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that there is no change in circumstance after rejection of the second bail application filed on behalf of the petitioner. As noticed by this Court in its order dated 07.02.2024, the petitioner is a habitual offender and he is facing trial for serious offences including but not limited to murder, attempt to murder, NDPS Act cases and Arms Act cases etc. in as many as 9 cases. The phrase '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' appearing under Section 37(b)(ii) of the NDPS Act indicate that while granting bail to an accused for the offences under NDPS Act, a Court requires more than a prima facie belief that the accused is not guilty of the charges levelled against him. The burden lies on the accused to demonstrate that he (Downloaded on 16/12/2024 at 09:28:52 PM) [2024:RJ-JD:49322] (8 of 8) [CRLMB-5519/2024] would not commit any crime of similar nature or otherwise in case, he is enlarged on bail.

11. In the opinion of this Court, if an accused is involved in numerous criminal cases of serious nature, the Court should not be in a position to record a satisfaction in favour of the accused that there are reasonable grounds for believing that the accused is not guilty of the offences charged or would not commit any offence while on bail. Section 37 of the NDPS Act imposes stringent conditions for granting bail to the accused persons for the offences under the Act as the possibility of accused involving/repeating the crime of trade of Narcotics cannot be rule out in such cases. It is also to be noticed that trial against the petitioner has already started and therefore, looking to his criminal record, in case, he is enlarged on bail, the possibility of his influencing the prosecution witnesses or fleeing away from justice cannot be ruled out at this stage.

12. In view of the aforesaid discussion and taking into consideration the twin conditions enumerated under Section 37 of the NDPS are not duly satisfied, this Court is not inclined to enlarge the petitioner on bail.

13. Consequently, the third bail application under Section 439 Cr.P.C. (483 BNSS) filed by the petitioner- Rakesh S/o Shri Bhanwar Lal is dismissed.

(KULDEEP MATHUR),J 200-himanshu/-

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Rajasthan High Court - Jodhpur