Rajasthan High Court - Jodhpur
Nanalal vs State Of Rajasthan (2023:Rj-Jd:36296) on 20 October, 2023
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2023:RJ-JD:36296]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10436/2023
Nanalal S/o Shri Unkarlal, Aged About 38 Years, R/o Govindpura
Ps Begun Dist. Chittorgarh (Presently Lodged In Central Jail
Chittorgarh)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Avinash Bhati
Mr. Ramesh Purohit, through VC
For Respondent(s) : Mr. Shrwan Kumar, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 20/10/2023 The instant bail application has been filed by the petitioner under Section 439 Cr.P.C in connection with FIR No.38/2021 of Police Station Begun, District Chittorgarh, for the offence under Section 8/29 of NDPS Act.
Learned counsel for the petitioner submitted that co- accused-Pappu Lal has already been enlarged on bail by this Court vide order dated 19.09.2023, in S.B. Criminal Misc. 3 rd Bail Application No.11004/2023.
For ready reference, order dated 19.09.2023 is reproduced hereinbelow:-
"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.38/2021 registered at Police Station Bangu, District Chittorgarh for the offence under Section 8/15 of the NDPS Act.
The second bail application of the petitioner was dismissed by this Court vide order dated 09.05.2023.(Downloaded on 12/11/2023 at 08:01:48 AM)
[2023:RJ-JD:36296] (2 of 5) [CRLMB-10436/2023] Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. Learned counsel for the petitioner submitted that the contraband (poppy husk/straw) weighing 365 kg. was recovered from two cars bearing Nos.RJ06-CB-1647 and RJ06- CA-3590 parked in the bara (plot) of the present petitioner. Learned counsel submitted that bara (plot) of the present petitioner, from where the contraband was recovered is not in exclusive possession of the present petitioner. Learned counsel submitted that there is no evidence available on record which could establish that the contraband was procured by the present petitioner and the same belongs to the petitioner. Drawing attention of the Court towards the statements of the Investigating Officer - Anil Saran (P.W.-2) recorded before the competent criminal court on 10.07.2023, learned counsel for the petitioner submitted that nothing has come on record which could indicate involvement of the present petitioner in commission of the alleged crime. Learned counsel submitted that as a matter of fact, there is no direct/corroboratory evidence available on record indicating that bara (plot) of the petitioner was in his exclusive ownership and possession. Learned counsel submitted that the petitioner is in judicial custody since 21.07.2021 and the trial of the case will take sufficiently long time.
On these grounds, he implored the court to enlarge the petitioner on bail.
Per contra, learned Public Prosecutor vehemently opposed the bail application and submitted that there was specific information available with the Investigating Officer that the contraband was procured by the present petitioner from one Kanhaiyalal. Learned Public Prosecutor further submitted that apart from the aforesaid information, there is a family settlement document available on record indicating that the bara from where the contraband was recovered is in the exclusive ownership of the present petitioner. He thus, implored the Court that the petitioner does not deserve to be enlarge on bail.
The order dated 09.05.2023 passed by this Court in S.B. Criminal Misc. Second Bail Application No.1107/2022 is reproduced herein below for ready reference:
"This second 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.38/2021 registered at Police Station Begun, District Chittorgarh, for offence under Section 8/15 of the NDPS Act.
The first bail application of the petitioner was rejected by this Court vide order dated 10.09.2021.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.(Downloaded on 12/11/2023 at 08:01:48 AM)
[2023:RJ-JD:36296] (3 of 5) [CRLMB-10436/2023] As per the prosecution, contraband (opium) weighing 21 Kg was recovered from two cars bearing Nos.RJ-06-CB- 1647 and RJ-06-CA-3590, parked in the Bara (plot) of the present petitioner. Learned counsel for the petitioner submitted that the Bara (plot)from which the contraband has been recovered is not in the exclusive possession of the present petitioner. Learned counsel submitted that Seizure officer has not collected any documents to establish that the Bara (plot) belongs to the present petitioner only. Learned counsel submitted that as a matter of fact, the revenue record of the aforesaid Bara (plot) shows that same is in the joint ownership of the present petitioner and his other family members viz. father and brother. Learned counsel submitted that there is no evidence available with prosecution which could establish the fact that Bara (plot) belongs to ownership and possession of the present petitioner.
Per contra, learned Public Prosecutor has opposed the bail application.
Drawing attention of the Court towards various documents annexed with the challan papers by the Investigating Agency, learned Public Prosecutor submitted that there was specific information available with the Seizure Officer that contraband(opium) has been procured and hidden by the present petitioner. Learned counsel further submitted that the petitioner in his statements under Section 67 of the NDPS Act informed that the contraband was procured by him from one Kanhaiyalal Bishnoi. Learned counsel submitted that various cases under NDPS Act are pending against Kanhaiyalal Bishnoi. Learned counsel lastly submitted that WhatsApp calls / chats between the present petitioner and Kanhaiyalal are sufficient to indicate involvement ofthe present petitioner in the present case.
Having considered the rival submissions, facts and circumstances of the case, in the prima facie opinion of this Court sufficient direct and corroboratory evidence is available on record to show involvement of present petitioner in commission of alleged offence.
In the considered opinion of this Court, in the face of the mandate of Section 37 of the NDPS Act, the petitioner is not entitled to be enlarged on bail.
Accordingly, the present Second Criminal Misc. Bail Application under Section 439 Cr.P.C. is dismissed."
In rebuttal, learned counsel for the petitioner submitted that P.W.-3 Shankerlal and P.W.-4 - Suresh Chandra in whose presence the alleged document pertaining to the family settlement was prepared, have not supported the prosecution story before the competent criminal court and turned hostile. Learned counsel (Downloaded on 12/11/2023 at 08:01:48 AM) [2023:RJ-JD:36296] (4 of 5) [CRLMB-10436/2023] submitted that the Investigating Officer in his statement has also stated that he did not procure any document showing that the bara from where the contraband was recovered was in the exclusive ownership of the present petitioner.
Having considered the rival submissions, facts and circumstances of the case, so also the fact that there is no documentary evidence available on record with the prosecution to prima facie prove the fact that the bara from where the alleged contraband was recovered, was in exclusive ownership of the present petitioner, this court is of the opinion that the rigors contained in Section 37 of the NDPS Act are not applicable in the present case. Tis Court, without expressing any opinion on merits/demerits of the case deems it just and proper to enlarge the petitioner on bail.
Consequently, the third bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused- petitioner - Pappu Lal S/o Gopi Lal Dhakad arrested in connection with F.I.R. No.38/2021 registered at Police Station Bangu, District Chittorgarh shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial."
Learned counsel for the petitioner submitted that the case of the present petitioner is not distinguishable from that of co- accused-Pappu Lal who has already been enlarged on bail by this Court and therefore, no fruitful purpose would be served by keeping the petitioner behind the bars. Learned counsel thus, prayed that the petitioner may be enlarged on bail.
Per contra, learned Public Prosecutor vehemently opposed the bail application. However, he was not in position to dispute the fact that aforementioned co-accused has already been enlarged on bail.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. (Downloaded on 12/11/2023 at 08:01:48 AM)
[2023:RJ-JD:36296] (5 of 5) [CRLMB-10436/2023] Having considered the rival submissions, facts and circumstances of the case so also the fact that aforementioned co- accused has already been enlarged on bail by this Court and the case of the present petitioner is not distinguishable from that of co-accused-Pappu Lal who has already been enlarged on bail and looking to the possibility that trial may take long time to conclude, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Accordingly, the present bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner- Nanalal S/o Shri Unkarlal shall be enlarged on bail in connection with FIR No.38/2021 of Police Station Begun, District Chittorgarh, provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- 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.
(KULDEEP MATHUR),J 83-KshamaD/-
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