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2023 DIGILAW 170 (RAJ)

Suraj Giri v. State of Rajasthan

2023-01-13

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT Dr.Pushpendra Singh Bhati, J. - These criminal misc. bail applications under Section 439 Cr.P.C. seeking release of the petitioners herein on bail. 2. The petitioners have been arrested in connection with FIR No.369/2020 registered at Police Station Nimbahera Sadar, District Chittorgarh for the offences under Sections 8/15, 8/25 & 8/29 of the NDPS Act, 1985. 3. The first bail application preferred on behalf of the present petitioner-Siraj Giri & Hitesh Giri, bearing S.B. Criminal Miscellaneous Bail Application No. 2406/2021 & 2405/2021, respectively, were dismissed as not pressed, at that stage, by this Court vide order dated 22.04.2021. 3.1 The second bail application preferred on behalf of petitioner-Hitesh Giri, bearing S.B. Criminal Miscellaneous Bail Application No. 7462/2021 was dismissed as not pressed by this Court vide order dated 04.09.2021, with liberty to approach this Court after recording of the statement of the Seizure Officer, before the learned Court below. 4. Learned counsel for the petitioner submitted that the statement of the concerned Seizure Officer, namely, Anil Saran (PW-3) has been recorded before the learned Court below; in his statement, he has not supported the version of the prosecution. 4.1 Learned counsel further submitted that in light of the same, fresh bail applications were moved on behalf of the present petitioners before the learned Court below, both of which came to be dismissed vide the impugned orders dated 07.07.2022; hence, the present bail applications have been preferred on behalf of the petitioners. 5. Learned counsel for the petitioners also submitted that there is no material available on record to connect the present petitioners with the alleged crime in question. 6. Learned counsel for the petitioners further submitted that the similarly situated co-accused, namely, Anil Puri has already been enlarged on bail by a coordinate Bench of this Hon’ble Court vide order dated 07.06.2021 passed in S.B. Criminal Misc. Bail Application No.7463/2021; the said order reads as under: "’The instant bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in relation to F.I.R. No.369/2020, Police Station Sadar Nimbahera, District Chittorgarh, for the offences under Sections 457 and 380 IPC. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the challan papers. The officer in charge of P.S. Sadar, Nimbahera conducted Nakabandi on 4.11.2020 and stopped a Bolero Vehicle No.MP04.CK.2835 in which, two persons namely Soorajgiri and Hiteshgiri were present. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the challan papers. The officer in charge of P.S. Sadar, Nimbahera conducted Nakabandi on 4.11.2020 and stopped a Bolero Vehicle No.MP04.CK.2835 in which, two persons namely Soorajgiri and Hiteshgiri were present. It is stated that when the search was undertaken, 148 Kgs. of contraband poppy straw was recovered from therein. Both these accused persons were arrested. As per the material available on record, when the accused from whose possession, the contraband was recovered i.e. Hiteshgiri and Soorajgiri were interrogated under Section 27 of the Evidence Act on 08.11.2020, they did not name the petitioner as the supplier of the contraband. However, when they were again interrogated on 10.11.2020, they divulged that the poppy straw in question had been procured from the petitioner. A perusal of the challan papers and the conclusion drawn in the charge-sheet indicates that neither any mobile phone was recovered from the petitioner nor any call details pertaining to the petitioner, have been collected by the Investigating Officer during investigation. Thus, the only evidence as against the petitioner remains in the form of the interrogation notes of the co-accused recorded by the Police Officer during investigation. The evidentiary value of such interrogation notes is questionable. As per the order rejecting bail, two previous cases are registered against the petitioner but neither involve the offence under the NDPS Act. In this background and having regard to the facts and circumstances as available on record, I am of the view that the conditions of Section 37 of the NDPS Act are satisfied and hence, the petitioner deserves indulgence of bail. Consequently, the bail application is allowed. It is ordered that the accused-petitioner namely Anil Puri S/o Mangupuri Goswami arrested in connection with F.I.R. No.369/2020, Police Station Sadar Nimbahera, District Chittorgarh shall be released on bail; provided he furnishes a personal bond of Rs.50,000/- and two surety bonds of Rs.25,000/- 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." 7. In support of the petitioners’ case, learned counsel for the petitioners placed reliance on the following judgments/orders: (a) Union of India Vs. Bal Mukund & Ors. (Criminal Appeal No.1397/2007, decided by the Hon’ble Supreme Court on 31.03.2009); (b) Dinesh Kumar Vs. State of Rajasthan (S.B. Criminal Misc. In support of the petitioners’ case, learned counsel for the petitioners placed reliance on the following judgments/orders: (a) Union of India Vs. Bal Mukund & Ors. (Criminal Appeal No.1397/2007, decided by the Hon’ble Supreme Court on 31.03.2009); (b) Dinesh Kumar Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.578/2018, decided by a coordinate Bench of this Hon’ble Court on 04.05.2018); (c) Jagdish Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.5428/2021, decided by a coordinate Bench of this Hon’ble Court on 06.05.2021); (d) Dinesh @ Rinku Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.3342/2020, decided by a coordinate Bench of this Hon’ble Court on 07.09.2020); and (e) Shanker Lal Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.5510/2021, decided by a coordinate Bench of this Hon’ble Court on 03.05.2021). 8. Learned Public Prosecutor however, opposed the aforesaid submissions made on behalf of the petitioner, on the ground, amongst others, of a clear distinction between the case of the present petitioners and that of the co-accused, who has been granted bail vide the aforementioned order. 9. Heard learned counsel for the parties as well as perused the record of the case, alongwith the judgments cited at the Bar. 10. With regard to the factual matrix of the instant case, this Court makes the following observations: 10.1 The case of co-accused Anil Puri, who has been granted bail vide the aforementioned order dated 07.06.2021, stood on a different footing from that of the present petitioners, as is clearly evident from a bare perusal of the said order itself. 10.2 The alleged recovery is of 148 kgs of poppy straw (doda post), which is quite more than the commercial quantity, as prescribed under the law, and thus, the same attracts the rigors contained in Section 37 of the NDPS Act. 10.3 The learned Court below vide the impugned orders has duly taken into consideration the factual matrix of the case at hand as well as the statement of the Seizure Officer, namely, Anil Saran (PW-3), while dismissing the bail applications preferred on behalf of the present petitioners. 10.4 This Court further observes that the statement of the concerned Seizure Officer, which is on record, clearly reveals that he has supported the prosecution version, and the same clearly makes out a prima facie case against the present petitioners. 10.4 This Court further observes that the statement of the concerned Seizure Officer, which is on record, clearly reveals that he has supported the prosecution version, and the same clearly makes out a prima facie case against the present petitioners. 10.5 Though the learned counsel for the petitioners placed heavy reliance upon the judgment of Union of India Vs. Bal Mukund (supra), this Court finds that the said judgment does not apply to the present case. Other judgments cited on behalf of the petitioners also do not render any assistance to their case. 11. Having regard to the overall facts and circumstances of the case, as also the contraband in question being more than the commercial quantity and the statement of the concerned Seizure Officer, this Court is not inclined to grant bail to the present petitioners, at this stage. 12. Consequently, the present bail applications are dismissed.