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Rajasthan High Court · body

2019 DIGILAW 93 (RAJ)

Kasim Mohd. v. State of Rajasthan, Through PP

2019-01-08

P.K. LOHRA

body2019
JUDGMENT 1. Accused-petitioner has laid this second bail application under Section 439 Cr.P.C. arising out of FIR No. 138/2016 of Police Station Gogunda, District Udaipur. Pursuant to investigation, police submitted charge-sheet in the matter against petitioner and four others for offence punishable under Section 8 read with Sections 18 & 29 of the NDPS Act and presently trial is in vogue before Special Judge, NDPS Cases, Udaipur in Sessions Case No. 321/2016. 2. First Bail Application on behalf of the petitioner was dismissed as not pressed on 18.11.2017. Arguing on the second bail application, it is submitted by learned counsel that after rejection of first bail application there is substantial change in the circumstances. It is contended by learned counsel that during trial in all twelve witnesses including Seizure Officer, Bhaiya Lal (P.W.5) have been examined. While referring to the statements of P.W.5, it is argued by learned counsel that Seizure Officer has not recovered any objectionable article including contraband from the possession of the petitioner. Learned counsel further submits that although petitioner was subjected to personal search but the notice under Section 50 of the Act, in this behalf, was per se laconic having third option of SHO himself. It is also argued by learned counsel that while drawing sample, 5 gms opium from each bags was collected and same was mixed for preparation of sample weighing 50 gms. It is argued by learned counsel that the procedure adopted by Seizure Officer for drawl of sample has substantially diminished the possibility of conviction of the petitioner for offence under Section 8 read with Section 18(c) of the NDPS Act. It is also submitted by learned counsel that the petitioner is in custody since 20 th of May 2016 and so far during trial out of total twenty-four witnesses cited by the prosecution only twelve witnesses are examined. It is further contended by learned counsel that there is no other criminal antecedent of the petitioner. 3. Per contra, learned Public Prosecutor has opposed the bail application. It is argued by learned counsel that contraband recovered in the matter was higher than commercial quantity, therefore, Section 37 of the Act is clearly attracted. 4. I have bestowed my consideration to the arguments advanced at Bar and pondered over the submissions made by learned counsel for the petitioner pointing out material change in the circumstances. 5. It is argued by learned counsel that contraband recovered in the matter was higher than commercial quantity, therefore, Section 37 of the Act is clearly attracted. 4. I have bestowed my consideration to the arguments advanced at Bar and pondered over the submissions made by learned counsel for the petitioner pointing out material change in the circumstances. 5. Having regard to the facts and circumstances and taking into account the grounds urged by learned counsel for the petitioner which are also discernible from the statement of P.W. 5, I feel persuaded to record my satisfaction about Section 37(b)(2) of the NDPS Act. 6. In view of foregoing discussion, second bail application is allowed and it is ordered that accused-petitioner, Kasim Mohd. S/o Shri Jannat Sheikh, arrested in connection with F.I.R. No. 138/2016 of Police Station Gogunda, District Udaipur, may be released on bail; provided he furnishes a personal bond of Rs. 50,000/- with two sureties of like amount, including one local surety, to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.