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2019 DIGILAW 2968 (RAJ)

Sandeep @ Duggl v. State, Through P P

2019-12-11

VIJAY BISHNOI

body2019
JUDGMENT Vijay Bishnoi, J. - Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the material available on record. 2. The petitioner has been arrested in FIR No.430/2018 of Police Station, Sadar, District Sri Ganganagar for the offences punishable under Sections 8/22 NDPS Act. He has preferred this bail application under Section 439 Cr.P.C. 3. Learned counsel for the petitioner has submitted that the petitioner has falsely been implicated in this case. It is argued that no recovery of huge quantity of drugs as alleged by the prosecution took place at the instance of the petitioner. It is submitted that as a matter of fact, the said narcotic contraband belongs to one Ajay Meghwal but the police, in connivance with him, did not implicated him in this case and falsely implicated the petitioner and one another accused person. It is submitted that from the statements of prosecution witnesses, the Seizure Officer (PW-1), the Head Constable (PW-2), who were present at the time of seizing of the above narcotic contraband and Sub-Inspector Sandeep (PW-3), who was also present at the time of recovery of narcotic contraband, it is clear that no independent witness was called by the police at the time of recovery of the alleged narcotic contraband. It is also submitted that from the evidence of above witnesses, it is clear that compliance of mandatory provisions of Sections 42 and 50 of NDPS Act was not made by the Seizure Officer at the time of alleged recovery of the narcotic contraband. It is, therefore, submitted that the petitioner, without there being any evidence against him is in judicial custody and taking into consideration the above facts and circumstances of the case, he is entitled to be enlarged on bail. 4. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that from the evidence of the prosecution witnesses PW-1 to PW-3, it is clear that huge quantity of narcotic contraband was recovered from the petitioner. It is submitted that the procedure laid down in Sections 42 and 50 of the NDPS Act was complied with by the Seizure Officer at the time of recovery of the narcotic contraband. It is submitted that the procedure laid down in Sections 42 and 50 of the NDPS Act was complied with by the Seizure Officer at the time of recovery of the narcotic contraband. It is further submitted that so far as the arguments made by the learned counsel for the petitioner to the effect that the police have falsely implicated the petitioner in this case because the narcotic contraband was allegedly recovered by the police from one Ajay Meghwal but the police in connivance with him has implicated the petitioner is concerned, it is submitted that the said contention of the counsel of the petitioner is an after thought as no such question had ever been asked by the counsel for the petitioner before the trial court from the Seizure Officer and other prosecution witnesses, who are also the police officials and were present at the time of recovery of narcotic contraband during their cross examination. Learned Public Prosecutor has submitted that Section 37 of NDPS Act provides that in cases of granting bail to the accused where the recovery of narcotic contraband is more than commercial quantity, the Court has limited jurisdiction to exercise powers under Section 439 CrPC and without there being any prima facie satisfaction that the accused person has falsely been implicated in this case, bail cannot be granted. Learned Public Prosecutor has, therefore, prayed that the bail application preferred on behalf of the petitioner be dismissed. 5. Having regard to the totality of the facts and circumstances of the case and and having gone through the material available on record, particularly the statements of the prosecution witnesses Seizure Officer (PW-1), Head Constable (PW-2) and Sub-Inspector (PW-3), who were present at the time of recovery of the above narcotic contraband, I do not find any case for releasing the petitioner on bail as I am unable to record my satisfaction to the effect that prima facie case for the offence, for which the petitioner has been charged under the NDPS Act, is not made out against him. 6. So far as non compliance of the mandatory procedure laid down under Sections 42 and 50 of the NDPS Act is concerned, I am of the opinion that the trial court will take into consideration the said aspect of the matter on the basis of the evidence which is to be recorded during the course of trial. 7. 6. So far as non compliance of the mandatory procedure laid down under Sections 42 and 50 of the NDPS Act is concerned, I am of the opinion that the trial court will take into consideration the said aspect of the matter on the basis of the evidence which is to be recorded during the course of trial. 7. In view of the above facts and circumstances of the case, without expressing any opinion on the merits of the case, I am not inclined to grant bail to the petitioner under Section 439 Cr.P.C. 8. Accordingly, the bail application preferred by the petitioner under Section 439 Cr.P.C. is rejected.