Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 825 (RAJ)

Rajesh Kumar v. State

2022-03-09

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. This Court perused the material available on record. 3. The petitioner has been arrested in connection with FIR No. 101/2020 of Police Station Sahwa, District Churu for the offences punishable under Sections 8/15, 25, 29 of NDPS Act. He has preferred this bail application under Section 439 Cr.P.C. 4. Learned counsel for the petitioner submits that the similarly situated co-accused namely, Sanjay Kumar S/o. Momanram has already been granted bail by a coordinate Bench of this Court vide order dated 17.02.2022 passed in S.B. Criminal Misc. Bail Application No. 10437/2021. The order dated 17.02.2022 reads as under:- "The present bail application has been filed under Section 439 of Cr.P.C. on behalf of the petitioner who is in custody in connection with F.I.R. No. 101/2020 registered at Police Station Sahwa, District Churu for the offences under Sections 8/15, 25 & 29 of the N.D.P.S. Act. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. Learned counsel for the petitioner submits that there is no evidence on record to connect the present petitioner with the alleged offence. As per the prosecution story, the petitioner was driver of one of the seized vehicles i.e. container, from which the contraband poppy straw was recovered. However, as per the statement of the witness Balwan Singh, who is employee of the Karwan Roadways, on the date of alleged incident, Manish Kumar was driver of the said container. He further submits that during the trial, statements of 5 witnesses including the Seizing Officer have been recorded. However, they all have admitted that they failed to identify any accused person on the spot. He further submits that no identification parade has been arranged by the police during investigation. The vehicles were found in abandoned condition. The present petitioner was not arrested on the spot. As per prosecution story, he was arrested on the information of the co-accused on 31.08.2020. He further submits that as per evidence collected by the police, telephonic conversation between the petitioner and co-accused Sunil took place twice on 01.08.2020, which is not sufficient to assume that the petitioner is guilty of the offence. As per prosecution story, he was arrested on the information of the co-accused on 31.08.2020. He further submits that as per evidence collected by the police, telephonic conversation between the petitioner and co-accused Sunil took place twice on 01.08.2020, which is not sufficient to assume that the petitioner is guilty of the offence. The petitioner is behind the bar for last about one and half year. On the above grounds, learned counsel for the petitioner prays that the petitioner may be enlarged on bail. On the other hand, learned Public Prosecutor while opposing the bail application, submits that the telephonic conversations of the petitioner Sanjay Kumar with co-accused Venket @ Kishori & Manish on one occasion and co-accused Rajesh and Sunil twice between 28.07.2020 to 01.08.2020 are available on record. From perusal of the record, it reveals that there was secret information regarding carrying the narcotic substance by one Pawan Kumar and Sanjay Kumar, the present petitioner herein. However, no one was found on the spot when vehicles in question were searched after arranging Nakabandi. As per prosecution story, all the persons succeeded to escape from the spot. P.W. 1 - Govind Ram, the S.H.O., in his cross-examination admitted that he was naming Pawan Kumar and Sanjay Kumar on the basis of information furnished by mukhbir. It was categorically stated by P.W. 1 - Govind Ram in his examination-in-chief that all suspected persons succeeded to escape. All other witnesses also narrated the similar story. From perusal of record, it also reveals that the petitioner is not the owner of any seized vehicle. Since nobody was found on the spot, hence, so-called telephonic conversation of the petitioner with some of the co-accused has lost its relevance. In the above factual background, having regard to the rival contentions of the parties and upon a consideration of the facts and circumstances of the case, without commenting upon the merits of the case, this Court is of the opinion that the bail application under Section 439 of Cr.P.C. filed by the petitioner deserves to be accepted. Consequently, the present bail application under Section 439 of Cr.P.C. is allowed. It is ordered that the accused-petitioner - Sanjay Kumar S/o. Momanram arrested in connection with F.I.R. No. 101/2020 registered at Police Station Sahwa, District Churu shall be released on bail provided he furnishes a personal bond of Rs. 1,00,000/- with two surety bonds of Rs. Consequently, the present bail application under Section 439 of Cr.P.C. is allowed. It is ordered that the accused-petitioner - Sanjay Kumar S/o. Momanram arrested in connection with F.I.R. No. 101/2020 registered at Police Station Sahwa, District Churu shall be released on bail provided he furnishes a personal bond of Rs. 1,00,000/- with two surety bonds of Rs. 50,000/- each to the satisfaction of the 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." 5. Learned counsel for the petitioner further submits that it is clear that no one was caught with the contraband in the three vehicles and neither was any person out of them was identified on the spot. 6. Learned counsel for the petitioner also submits that the vehicles were found in abandoned condition and since there was no arrest or identification on the spot, therefore, the prosecution developed the story subsequently. 7. Learned counsel for the petitioner further submits that the petitioner is in custody since 05.09.2020 and the statement of the Seizure Officer has already been recorded. 8. Learned counsel for the petitioner has also drawn the attention of this Court towards the statement rendered by Govind Ram, the Station House Officer, as PW-1. 9. Learned Public Prosecutor opposed the bail application. 10. This Court, after examining the record as well as seeing that the bail of co-accused person namely Sanjay Kumar has been granted in similar circumstances, is inclined to grant bail to the present petitioner. 11. Thus, having regard to the totality of the facts and circumstances of the case as also the fact that conclusion of the proceedings is likely to take some time and without expressing any opinion on the merits of the case, this Court deems it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C. 12. Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Rajesh Kumar S/o. Ram Prasad shall be released on bail in connection with FIR No. 101/2020 of Police Station Sahwa, District Churu provided he executes a personal bond in a sum of Rs. 50,000/- with two sound and solvent sureties of Rs. Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Rajesh Kumar S/o. Ram Prasad shall be released on bail in connection with FIR No. 101/2020 of Police Station Sahwa, District Churu provided he executes a personal bond in a sum of Rs. 50,000/- with two sound and solvent sureties of Rs. 25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial.