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2005 DIGILAW 2434 (RAJ)

Hakam Singh v. State of Rajasthan

2005-09-12

H.R.PANWAR

body2005
JUDGMENT 1. - By the instant criminal misc. bail application under Section 439 Cr.RC., petitioner Hakam Singh has challenged the order dated 8.7.2005 whereby the learned Sessions judge, Udaipur dismissed the bail application filed by the petitioner under Section 439 CrPC. The petitioner is facing trial for the offence under Section 8/15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act' hereinafter). After investigation, the police filed challan and the Trial Court by order dated 2.8.2005 framed the charges against the petitioner under Section 8 read with Section 15 and 20 of the NDPS Act. 2. Heard learned counsel for the petitioner and the Public Prosecutor for the State. Perused the order impugned, charges framed by the Trial Court and the challan papers. 3. The case as set up by the prosecution is that the truck owned and under the control of the petitioner was carrying 200 bags of poppy straw (poppy husk), which was intercepted by the police and on being checked the truck was loaded with poppy straw which was transported without any license or permit in contravention of provisions of NDPS Act and, therefore, the petitioner was challaned for the offence under Section 8/15 and 29 of the NDPS Act. 4. It is contended by counsel for the petitioner that the petitioner is not the registered owner of the truck bearing No. RJ-14G 9797. Learned Public Prosecutor appearing for the State opposes the bail application and submits that by an agreement dated 13.11.2002, petitioner Hakam Singh purchased the said truck from one Jasvinder Singh. The agreement is already on record. The occurrence is of January, 2005 and much prior to the occurrence, petitioner Hakam Singh purchased the said truck. Learned counsel for the petitioner invited my attention to the statement of petitioner Hakam Singh, wherein it has been stated that one Vicky was engaged as driver on the said truck owned and possessed by him; earlier the said truck was being driven by petitioner Hakam Singh himself. However, he wanted to go to Punjab for a month and, therefore, the petitioner approached to one Ajayab Singh and Vicky son of Ajayab Singh was engaged as a driver on the said truck for a month by the petitioner. The transporter other co-accused Mahendra Singh approached to petitioner Hakam Singh for transoring the goods from Nimbahera to Sikar. However, he wanted to go to Punjab for a month and, therefore, the petitioner approached to one Ajayab Singh and Vicky son of Ajayab Singh was engaged as a driver on the said truck for a month by the petitioner. The transporter other co-accused Mahendra Singh approached to petitioner Hakam Singh for transoring the goods from Nimbahera to Sikar. Initially the petitioner demanded a sum of Rs. 35,000/- as freight charge, however, it was settled at Rs. 30,000/-. The petitioner accompanied co-accused Manendra Singh even up to Bhilwara and ultimately, after collecting the poppy straw and in return journey, the said truck was caught by the police and poppy straw weighing 8000 kgs. were seized. 5. From perusal of the challan papers, it cannot be prima facie said that the petitioner has no knowledge about the transportation of the poppy straw without there being any valid permit.Sec. 37 of the NDPS Act reads as under: "37. Offences to be cognizable and non-bailable.-(l) Notwithstanding anything contained in the Code of Criminal Procedure, 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 on his own bond unless- (1) 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 believing that he is not guilty of such offence and that he is not likely to commit any offence so while on bail. (2) The limitations on granting on 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." 6. In the instant case, the learned Public Prosecutor opposes the bail application and from the material available on record, it cannot be said that there are grounds to believe that the petitioner is not guilty of the offence punishable under the NDPS Act and that there is no likelihood to commit any offence while on bail. In the instant case, the learned Public Prosecutor opposes the bail application and from the material available on record, it cannot be said that there are grounds to believe that the petitioner is not guilty of the offence punishable under the NDPS Act and that there is no likelihood to commit any offence while on bail. Keeping in view the fact that law is settled on the point unless the condition of Section 37 of the NDPS Act are satisfied, a person accused of NDPS Act contraband involving commercial quantity, shall not be released on bail. In the facts and circumstances of the case, and the fact that the contraband poppy straw recovered is the commercial quantity as defined in NDPS Act and, therefore, the provisions of Section 37 of the Act are fully attracted and from the material on record, it cannot be said that there are reasonable ground to believe that the petitioner is not guilty of offence and that he is not likely to commit any offence while on bail. In the circumstances, therefore, I do not consider it a fit case to release the petitioner on bail. 7. The bail application filed by petitioner Hakam Singh under Section 439 of Cr.RC. is, therefore, dismissed.Application dismissed. *******