Rajasthan High Court - Jodhpur
Dhanna Lal vs State Of Rajasthan (2023/Rjjd/011257) on 20 April, 2023
Author: Farjand Ali
Bench: Farjand Ali
[2023/RJJD/011257]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 1012/2023
Dhanna Lal S/o Narayan Ram, Aged About 50 Years, Doli,
Rajgura, P.s. Kalyanpura, Dist. Barmer, Rajasthan. (Lodged In
Dist. Jail, Pratapgarh).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. B.R. Bishnoi
For Respondent(s) : Mr. Gaurav Singh, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order 20/04/2023
1. The instant bail application has been filed by the petitioner Dhanna Lal S/o Narayan Ram under Section 439 Cr.P.C against the order impugned dated passed by learned court below in connection with FIR No.51/2011 registered at Police Station Dholapani, District Pratapgarh for the offences under Sections 8/15 and 29 of NDPS Act.
2. Learned counsel for the petitioner submits that a false case has been foisted against the petitioner. He has nothing to do with the alleged offences and no useful purpose would be served by keeping him behind the bars. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. He submits that for booking an (Downloaded on 21/04/2023 at 09:23:22 PM) [2023/RJJD/011257] (2 of 5) [CRLMB-1012/2023] accused for the accusation of the offence committed under Section 29 of the NDPS Act, there must be some corroborative evidence. No call recording, text or chat of the petitioner with the principal accused or the other co-accused is not available on record. Since nothing is there on record from which involvement of the accused can be presumed, therefore, the embargo under Section 37 of the NDPS Act do not come in way of releasing the petitioner on bail.
3. Per contra, learned Public Prosecutor opposed the bail application on the ground that contraband poppy husk weighing 3387 Kilograms were recovered. The recovered contraband poppy husk is way above the demarcated commercial quantity and therefore, in view of the bar contained under Section 37 of NDPS Act, no case of bail is made out.
4. Heard. Perused the material available on record.
5. There is no evidence whatsoever to connect the present petitioner with the alleged recovery of contraband except the statement of Birbal Bishnoi whose name was taken by Sawai Singh and it was alleged that Birbal was present in the truck and fled away when truck was intercepted and the seizure was conducted, wherein it is stated that Lalaram and present petitioner Dhanna Lal came to Birbal and claimed that Sawai's truck was seized by the police. It was also revealed by Birbal that the SIM that was being used by Lalaram was under his name.
6. It is highly incomprehensible as to how the observation of the I.O. regarding accusation which has been transferred multiple times would be converted into a legally admissible evidence in trial. On the basis of the registration certificate of the seized truck, (Downloaded on 21/04/2023 at 09:23:22 PM) [2023/RJJD/011257] (3 of 5) [CRLMB-1012/2023] the owner was approached. It is said that he convinced the I.O. that he sold the truck to one Sawai Singh, however, no transfer agreement was made to this effect. When this man was approached, he shifted the accusation upon one Birbal and then, Birbal told that he is not guilty and that the petitioner is responsible for the alleged transportation of contraband. Serious objections have been raised regarding shifting of accusation upon present petitioner on the basis of statements of individuals who have transferred the blame from themselves to the next person in order to save themselves and so on. It seems to be a very far- fetched accusation without any strong foundation or link and prima facie no case is made out.
7. In a recent ruling titled Mohd Muslim @ Hussain V. State (NCT OF DELHI) in Special Leave Petition (CRL.) NO(S). 915 of 2023 order dated 28.03.2023, Hon'ble the Supreme Court has discussed Section 37 of the NDPS Act in detail and has allowed the accused in that matter to be released on bail while holding that the impediment contained under Section 37 is not a bar to grant of bail in cases where there is undue delay in conclusion of trial. The paragraph of the afore-said judgment relevant to the present matter is reproduced below:
"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 prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, (Downloaded on 21/04/2023 at 09:23:22 PM) [2023/RJJD/011257] (4 of 5) [CRLMB-1012/2023] 437 and 439, CrPC) which classify offences based 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. Having regard to the totality of facts and circumstances as available on record and upon a consideration of the arguments (Downloaded on 21/04/2023 at 09:23:22 PM) [2023/RJJD/011257] (5 of 5) [CRLMB-1012/2023] advanced, at this stage of infancy of trial, this Court refrains from passing any comments over the admissibility of evidence and the quality of evidence yet it is of the firm opinion that the appellant deserves to be enlarged on bail in this case.
9. Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Dhanna Lal S/o Narayan Ram 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 69-Ashutosh/-
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