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2012 DIGILAW 1995 (RAJ)

Dungara Ram v. State of Rajasthan

2012-09-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the case diary. 2. The instant second bail application has been filed under Section 439 Criminal Procedure Code The petitioner Dungara Ram S/o Raja Ram has been arrested in F.I.R. No. 94/2011 registered at Police Station Sanchore, Jalore for the offence under Sections 8/17 and 18 of the N.D.P.S. Act. 3. The earlier application for bail filed by the petitioner being Bail Application No. 2817/2012 was rejected by this Court on 26.4.2012 and the contention of the learned counsel for the petitioner at that stage before the Court was that the Seizure Officer has concocted the recovery and as a matter of fact he was not present when the recover was effected. It may be stated herein that the story of the prosecution is that Narayanlal, S.H.O. Sanchore acting on a prior information received by him at 4.20 on 18.3.2011 after completing the necessary formalities reached the agricultural field and the house alleged to be that of the petitioner and the S.H.O. is alleged to have entered into the house at 5.30 P.M. It is stated that the petitioner was also standing inside the house and seeing the police party threw some article which was lying near a fire place into the fire and then ran away. It is stated that when the accused was pursued, two mobile sets fell down from his pocket but the accused managed to run away. It is stated that when the substance which had allegedly been thrown in fire was recovered in a burning condition and was separated from embers, the same was found to be opium and upon weighing, the weight thereof came to be 3Kg. 90Gms. An F.I.R. No. 94 dated 19.3.2011 was registered on the basis of the recovery and thereafter the petitioner was apprehended in this case. The petitioner's case throughout has been that a C.L.G. Meeting had taken place at the Police Station Sanchore on 18.3.2011 wherein the Seizure Officer was present all through the meeting i.e. between 4.30 P.M. to 6.00 P.M. and therefore, the recovery which has been shown effected allegedly at 5.30 P.M. on 18.3.2011 is a concocted recovery. Certain documents in relation to holding of the C.L.G. Meeting at Police Station Sanchore under the Chairmanship of the S.D.M. and in the presence of S.H.O. Police Station Sanchore were placed on record. Certain documents in relation to holding of the C.L.G. Meeting at Police Station Sanchore under the Chairmanship of the S.D.M. and in the presence of S.H.O. Police Station Sanchore were placed on record. This Court whilst rejecting the application filed by the petitioner on 26.4.2012 directed that the papers which will be supplied by the learned Public Prosecutor to the I.O. and would be taken in account by the I.O, in the report to be filed under Section 173(6) Criminal Procedure Code Thereafter the police submitted a charge-sheet but the relevant papers were not investigated. The petitioner thereupon preferred instant second bail application and this Court on 1.8.2012 sought an explanation from the concerned Police Officer as to why order dated 26.4.2012 of this Court was not complied with. The S.P. Jalore appeared before this Court and submitted that the concerned police inspector who did not take on record the documents as directed by this Court had been suspended. He also submitted that the enquiry as directed by this Court in its order dated 26.4.2012 was conducted and enquiry report along with ail the documents has been was placed on record after copy thereof was also supplied to the counsel for the petitioner. 4. Shri Mahesh Bora, learned Senior Counsel contended before this Court that as per the witnesses who have been examined during the course of enquiry it is apparent that though some of the witnesses have staled that I.O. left the C.L.G. Meeting at 4.30 P.M. but certain other witnesses have clearly stated that the S.H.O. was continuously available in the meeting. He, therefore, submits that the recovery in this case is absolutely concocted as the same is alleged to have been effected at 5.30 P.m. whereas the meeting of the C.L.G. In which the S.H.O. was admittedly present carried on till 6.00 P.M.. therefore, the presence of the S.H.O. for effecting the recovery at the house of the accused at 5,30 P.M. would be absolutely impossible. He, therefore, prays that the petitioner deserves to be granted bail in this case. 5. therefore, the presence of the S.H.O. for effecting the recovery at the house of the accused at 5,30 P.M. would be absolutely impossible. He, therefore, prays that the petitioner deserves to be granted bail in this case. 5. Per contra, learned Public Prosecutor has vehemently opposed the submission and contends that there is recovery of opium in excess of commercial quantity in this case, and therefore, merely because there is some discrepancy regarding the presence of the Recovery Officer in the C.L.G. Meeting at the relevant time, the accused cannot be given liberty of bail in view of the express bar contained in Section 37 of the N.D.P.S. Act. 6. Having considered the submissions made at the bar and after going through the documents particularly the minutes of C.L.G. Meeting which bear the signatures of S.H.O. and the Roznamcha entry which form part of the report submitted to this Court, it is relevant to mention here that the S.H.O. in the Roznamcha of the concerned Police Station has mentioned that the C.L.G. Meeting was held at 3.00 P.M. whereas the record shows that the meeting was convened between 4.30 P.M. to 6.00 P.M. The S.H.O. Has further mentioned in the Entry No. 1.158 that he received the source information regarding the petitioner preparing opium at his house. The entry No. 1158 does not bear any time. The entry No. 1159 immediately after the above entry is that the documents were prepared under Section 42(2) for forwarding the same to the concerned officers. Entry No. 1160 also does not bear any time and refers to the forwarding of the information under Section. 42 of the S.P. concerned. Entry No. 1161 refers to the S.H.O. leaving the Police Station at 4.35 P.m. for proceeding to the place of recovery. Entry No. 1160 also does not bear any time and refers to the forwarding of the information under Section. 42 of the S.P. concerned. Entry No. 1161 refers to the S.H.O. leaving the Police Station at 4.35 P.m. for proceeding to the place of recovery. The C.L.G. Meeting minutes have been drawn up and have been signed by the S.H.O. but in the minutes there is not such mention that the S.H.O. left the meeting between 4.00 P.M. to 6.00 P.M. A comparative chart of the witnesses who have been examined during the course of the witnesses who have been examined during the course of the enquiry, the report whereof has been submitted to this Court is reproduced hereunder; Name of witness Post Time of CLG meeting pm Comments Arjun Ram Constable 3 to 4 Member of raid party Smt. Madhvi Vishnoi Constable 3 to 4 Member of raid party Bheema Ram Vishnoi ASI 3 to 4 Member of raid party Rajyavardhan Singh Dy. S.P. 3 to 4 Left PS at 4.15 Ramesh Chandra Municipal Chairman 3.30 to 4.45 Narayan Left at 4.45 Harlal Vishnoi CLG Member 4 to 5 Narayan Left at 4.40 SDM left at 5 PM Kishan Godare Vishnoi CLG Member 4 to 4.40 Narayan Left at 4.40 Mohd. Ali CLG Member 4 to 4.45 Narayan Lal was present at 4.45 Sayab Khan CLG Member 4 to 4.45 Narayan Lal left in between Samsher Khan CLG Member 4 to 4.30 Narayan Lal left in between Chaganlal CLG Member 4 to 4.45 Narayan Lal left in between Jagmala Ram Vishnoi CLG Member 3.45 to 4 Narayan Lal left in between Peera Ram Vishnoi CLG Member 4 to 5 Does not remember about Narayan Lal's presence Mahendra Choudhary CLG Member 4.45 to 6 Narayan Lal, SDO, EO were present Sawai Ram CLG Member 4.45 to 6 Narayan Lal, SDO, EO were present Bhopal Chand Mehta CLG Member 4 to 6 Narayan Lal, SDO, EO were present Shankarlal CLG, Member 4 to 6 Narayan Lal, SDO, EO were present Iqbal Nagauri CLG Member 4.30 to 6 Narayan Lal, SDO, EO were present Babulal Municipal Ex-chairman 4.30 to 6 Narayan Lal, SDO, EO were present Nansingh Taxi Union CLG Member 4.45 to 6 Narayan Lal, SDO, EO were present. 7. 7. From a perusal of the chart it becomes apparent that the witnesses who are the members of the raid party have stated the time of the C.L.G. Meeting as having been convened between 3 to 4 P.M. Rajyavardhan Singh, Dy. S.P. Also mentions the same time. Certain other witnesses have stated that the meeting took place from 4 O' clock and continued till 4.30 P.M. to 4.45 P.M. The witnesses Mahendra Chaudhrv, Sawai Ram, Bhopal Chand Mehta, Shankarlal, Babulal and Nan Singh stated that the meeting after its initiation continued till 6.00 P.M. and all through the meeting the S.H.O. was present. Surprisingly enough the S.D.M. who was the Chairman of the meeting has not been examined during the course of the enquiry. The time of the meeting which has been mentioned by the I.O. in the Roznamcha thrown a great deal of doubt about the bona fides of the Roznamcha entry. They fortnightly diary of the Dy. S.P. has also been annexed to the report and in the same also, it has been mentioned that the C.L.G. Meeting was convened at 3 P.M. Be that as it may, in view of the fact that numerous witnesses who have participated in the C.L.G. meeting have deposed during the course of enquiry that the S.H.O. (Seizure Officer Narayanlal) was present at the Police Station up till 6.00 P.M.8. Moreover, the Minutes of the C.L.G. meeting which were drawn up by the I.O. him self mentions that the meeting took place in the chairmanship of the S.D.M. and in the presence of the C.O. and on the conclusion of the meeting all the members who were present in the meeting assured that peace and goodwill will be maintained in the forthcoming festival and discussions and deliberations were held for deployment of proper forces. The minutes, therefore, project that the S.H.O. was also along present in the deliberations which took place. The minutes have been drawn and signed by the S.H.O. himself. These facts convince this Court without commenting on the merits of the case lest any such comment may affect the merits of the prosecution story at the trial, this Court is of the opinion that there exist valid and justifiable grounds for accepting the instant application for bail filed by the petitioner under Section 439 Criminal Procedure Code9. These facts convince this Court without commenting on the merits of the case lest any such comment may affect the merits of the prosecution story at the trial, this Court is of the opinion that there exist valid and justifiable grounds for accepting the instant application for bail filed by the petitioner under Section 439 Criminal Procedure Code9. Accordingly, the bail application is allowed and it is directed that petitioner Dungara Ram who has been arrested in connection with F.I.R. No. 94/2011 Police Station, Sanchore shall be released on bail, provided he executes a personal bond for a sum of Rs. 50,000/- along with two sound and solvent sureties in the sum of Rs. 25,000/- each to the satisfaction of learned trial Court for his appearance before the Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.Bail application allowed. *******