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Rajasthan High Court · body

2022 DIGILAW 1395 (RAJ)

Mohammad Kasim v. State Of Rajasthan

2022-05-04

PANKAJ BHANDARI

body2022
ORDER 1. Petitioner has filed this second bail application under Section 439 of Cr.P.C. 2. F.I.R. No. 54/2020 registered at Police Station SOG, Jaipur for offence under Section 8/15 NDPS Act. 3. It is contended by counsel for the petitioner that from bare perusal of the charge-sheet, it is evident that Police has made up a false case. It is contended that as per the search and seizure memo prepared by the Police, the search was started at mid night of 01.10.2020 & 02.10.2020 at 01:00 AM and continued till 10:15 pm of 02.10.2020. As per the search and seizure memo, 143 plastic bags containing poppy husk were seized. The total weight of the contraband was 2125.32 Kgs. After drawing sample, the total weight of the contraband was 1980.778 Kgs. It is contended that after 36 days, an inventory report was prepared as per Section 52-A of the NDPS Act. In the inventory report, prepared by the Judicial Magistrate, the total weight of the contraband turned out to be 1205.015 Kgs. There was reduction of 775.763 Kgs and the explanation given by the Police Authorities was that the reduction in the quantity was because of rats. It is also contended that petitioner is a young boy who as per the arrest memo is shown to be of age 19 years and was found sitting in the vehicle. As per the prosecution case, he was the cleaner of the vehicle and has nothing to do with the contraband. 4. It is further contended that the statement of the owner of the vehicle was recorded by the Police. As per his statement, the vehicle was never handed over to the driver as mentioned in the search and seizure memo and as per the owner of the vehicle one Rajesh was driving the vehicle. It is also contended that there is no mention of petitioner being cleaner of the vehicle. As per the search and seizure memo which was made at 10:15 pm on 02.10.2020, truck driver and the cleaner were arrested by separate arrest memos. However, as per the arrest memo prepared by the Police, petitioner was arrested at 11:00 pm on 02.10.2020 i.e. after the preparation of the search and seizure memo. 5. It is contended that there is no independent witness. However, as per the arrest memo prepared by the Police, petitioner was arrested at 11:00 pm on 02.10.2020 i.e. after the preparation of the search and seizure memo. 5. It is contended that there is no independent witness. There is no material to suggest that petitioner had knowledge about transportation of contraband and there is no mention about his having any criminal antecedents or any chance of committing the offence while on bail. 6. Learned Public Prosecutor has opposed the second bail application. 7. I have carefully perused the charge-sheet. 8. It is indeed surprising that within a span of 36 days, there is reduction of about 775 Kgs of poppy husk from the Malkhana of the Police Authorities. It is also surprising that there is reduction in all 143 bags which were seized by the Police. From the evidence collected by the Police from the owner of the truck, it is evident that petitioner was never the cleaner on the truck and prima facie it appears to be a case of over implication. Petitioner is a young boy who is not having any criminal track record and who was merely stated to be a cleaner in the vehicle. There are various flaws in the prosecution case which goes to the root of the matter, hence, this Court deems it proper to allow the Criminal Miscellaneous Second Bail Application. 9. This second bail application is accordingly allowed and it is directed that accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. 10. However, it is made clear that if petitioner repeats the offence, State would be free to move application for cancellation of bail before the concerned Court.