Rajasthan High Court - Jodhpur
Kishore @ Gopal vs State Of Rajasthan on 1 July, 2021
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 6389/2021
Kishore @ Gopal S/o Mangi Lal Dhakad, Aged About 30 Years,
R/o Palcha, P.S. Bijaypur, District Chittorgarh.
(At Present Lodged At District Jail, Chittorgarh).
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
Connected With
S.B. Criminal Miscellaneous Bail Application No. 5974/2021
Heeralal S/o Madanlal Jat, Aged About 29 Years, R/o Karunda,
Thana Sadar Nimbaheda, District Chittorgarh (Raj.).
(Presently Lodged At Dist. Jail, Chittorgarh).
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. R.K. Charan in SBCRLMB
No.6389/2021 (through VC) &
Mr. Bhanwaru Ram in SBCRLMB
No.5974/2021 (through VC)
For Respondent(s) : Mr. Mukhtiyar Khan, PP
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order 01/07/2021 In S.B. Criminal Miscellaneous Bail Application No. 6389/2021:
The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner - Kishore @ Gopal, who is in judicial custody in connection with F.I.R. No.294/2020, Police Station Sadar Nimbhahera, District Chittorgarh, for the offences punishable under Sections 8/15, 18, 29 of NDPS Act.
Heard learned counsel for the petitioner appearing through video conferencing and learned Public Prosecutor, present in person. Perused the material available on record. (Downloaded on 03/07/2021 at 08:25:26 PM)
(2 of 5) [CRLMB-6389/2021] Learned counsel for the petitioner stated that recovery was made from the co-accused - Udai Lal; petitioner has wrongly been implicated in this case; there was no direct evidence which can be treated sufficient evidence against the petitioner for the offence of Section 8/29 of NDPS Act; supply of alleged contraband by petitioner is not proved by the prosecution; co-accused - Khemraj has already been granted benefit of bail by the Co-ordinate Bench of this Court vide order dated 09.04.2021; allegation against the present petitioner is similar to co-accused - Khemraj. Learned counsel further stated that benefit of bail has also been granted to co-accused Ramesh @ Rameshwar Das Bairagi vide order dated 31.05.2021 by the Co-ordinate Bench of this Court. With these submissions, learned counsel appearing for the petitioner -
Kishore @ Gopal prayed that benefit of bail may also be granted to the petitioner.
Per contra, learned Public Prosecutor fervently and vehemently opposed the bail application and stated that phone of accused petitioner was put on surveillance and transcript of conversations between accused-petitioner - Kishore @ Gopal and co-accused - Udai Lal is available in the charge-sheet and in support of the said transcript of conversations, call detail report is also obtained during the investigation along with certificate of Section 65B of the Evidence Act, therefore, it is wrong to say that there is no other evidence against the accused-petitioner apart from the information given by the co-accused. Learned Public Prosecutor, lastly urges that Section 37 of the NDPS Act is clearly attracted in the present case.
Having regard to the totality of the facts and circumstances of the case, particularly to the facts that the recovered contraband (Downloaded on 03/07/2021 at 08:25:26 PM) (3 of 5) [CRLMB-6389/2021] weighs above commercial quantity, hence, the restrictions contained in Section 37 of NDPS Act operate against the petitioner; benefit of bail has been granted to the co-accused - Khemraj on the basis that there is no call detail report available which can connect the accused - Khemraj with other co-accused persons, therefore, in reference of link evidence which can fortify the investigating officer's claim, benefit of bail has been granted to co-accused-Khemraj, whereas, as mentioned in the arguments of learned Public Prosecutor in the present case, such evidence is available against the accused-petitioner-Kishore @ Gopal; benefit of bail to the co-accused-Ramesh @ Rameshwar Das Bairagi has also been granted on the basis that no connecting evidence is available against the accused- Ramesh @ Rameshwar Das Bairagi, therefore, without expressing any opinion on the merits/demerits of the case, I am not inclined to grant bail to the accused- petitioner - Kishore @ Gopal under Section 439 Cr.P.C. at this stage.
Accordingly, the bail application preferred by the petitioner - Kishore @ Gopal under Section 439 Cr.P.C. is dismissed. However, accused-petitioner is free to file fresh bail application after the statements of concerned Investigating Officer. In S.B. Criminal Miscellaneous Bail Application No. 5974/2021:
The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner - Heeralal S/o Madanlal Jat, who is in judicial custody in connection with F.I.R. No.294/2020, Police Station Sadar Nimbhahera, District Chittorgarh, for the offences punishable under Sections 8/15, 8/18, 8/25, 8/29 of NDPS Act. (Downloaded on 03/07/2021 at 08:25:26 PM)
(4 of 5) [CRLMB-6389/2021] Heard learned counsel for the petitioner appearing through video conferencing and learned Public Prosecutor, present in person. Perused the material available on record.
Learned counsel for the petitioner stated that recovery was made from the co-accused - Udai Lal; petitioner has wrongly been implicated in this case; there was no direct evidence which can be treated sufficient evidence against the petitioner for the offence of Section 8/29 of NDPS Act; petitioner has wrongly been implicated in this case only on the information given under Section 27 of the Evidence Act and apart from that no other evidence is available against the petitioner; as per page 15 of the charge-sheet, alleged contraband was recovered from the accused-Udai Lal; co- accused-Khemraj has already been granted benefit of bail by the Co-ordinate Bench of this Court vide order dated 09.04.2021 and co-accused Ramesh @ Rameshwar Das Bairagi vide order dated 13.05.2021 has also been granted benefit of bail by the Co-
ordinate Bench of this Court. With these submissions, learned counsel appearing for the petitioner - Heeralal S/o Madanlal Jat prayed that benefit of bail may also be granted to the petitioner.
Per contra, learned Public Prosecutor fervently and vehemently opposed the bail application and stated that phone of accused petitioner was put on surveillance and transcript of conversations made between accused-petitioner - Heeralal S/o Madanlal Jat and co-accused - Udai Lal in the charge-sheet and in support of the said transcript of conversations, call detail report is also obtained during the investigation along with certificate of Section 65B of the Evidence Act, therefore, it is wrong to say that there is no other evidence against the accused-petitioner apart from the information given by the petitioner. Learned Public (Downloaded on 03/07/2021 at 08:25:26 PM) (5 of 5) [CRLMB-6389/2021] Prosecutor further stated that one other case of similar nature is pending against the accused petitioner. Learned Public Prosecutor, lastly urges that Section 37 of the NDPS Act is clearly attracted in the present case.
Having regard to the totality of the facts and circumstances of the case, particularly to the facts that the recovered contraband weighs above commercial quantity, hence, the restrictions contained in Section 37 of NDPS Act operate against the petitioner; that benefit of bail has been granted to the co-accused- Khemraj on the basis that there is no call detail report available which can connect the accused - Khemraj with other co-accused persons, therefore, in reference of link evidence which can fortify the investigating officer's claim, benefit of bail has been granted to co-accused-Khemraj, whereas, as mentioned in the arguments of learned Public Prosecutor in the present case, such evidence is available against the accused-petitioner - Heeralal S/o Madanlal Jat; benefit of bail to the co-accused-Ramesh @ Rameshwar Das Bairagi has also been granted on the basis that no connecting evidence is available against the accused- Ramesh @ Rameshwar Das Bairagi, therefore, without expressing any opinion on the merits/demerits of the case, I am not inclined to grant bail to the accused-petitioner - Heeralal S/o Madanlal Jat under Section 439 Cr.P.C. at this stage.
Accordingly, the bail application preferred by the petitioner - Heeralal S/o Madanlal Jat under Section 439 Cr.P.C. is dismissed. However, accused-petitioner is free to file fresh bail application after the statements of concerned Investigating Officer.
(DEVENDRA KACHHAWAHA ),J 6-7-Arvind/Ashish/-
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