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2023 DIGILAW 543 (RAJ)

Prithaviraj S/o Shri Ruparam v. State, Through Pp

2023-02-16

ASHOK KUMAR JAIN

body2023
ORDER : 1. The instant bail applications have been filed under Section 439 Cr.P.C. on behalf of the petitioners Prithaviraj S/o Shri Ruparam and Vajir Kharab S/o Sh. Bhalleram, who are in custody in relation to F.I.R. No.225/2021, Police Station Purani Abadi, District Sri Ganganagar for the offence under Sections 8/22 and 29 of the NDPS Act. As both the bail applications are filed by the petitioners against the same FIR thus, they are being heard and decided by this common order. 2. Learned counsel for the petitioner Prithviraj submits that as per prosecution story, contraband goods were recovered from personal search of the petitioner. He further submits that if the process of personal search is adopted then, it is mandatory to follow the procedure as prescribed under Section 50 of the NDPS Act but in the instant case, the same has not been followed. He further submits that the petitioner is an innocent person and he has falsely been implicated in the present case due to personal vengeance. He further submits that seizure memo was not prepared in the presence of independent witnesses or in presence of Magistrate or Gazetted Officer. He further submits that petitioner is a young boy and not having any previous criminal antecedents. He further submits that in similar situation, the Coordinate Benches of this Court in the cases of Sahil Kumar @ Kaku Vs. State of Rajasthan (S.B. Criminal Misc. Bail Application No.3938/2021 decided on 19.09.2022) and in Virendra Kumar & Ors. vs. State of Rajasthan; Kanwar Pal Singh Vs. State Of Raj. And Vajir Kharab Vs. State of Rajasthan (S.B. Criminal Misc. 2nd Bail Applications No.8495/2022, 9030/2022 and 9031/2022 decided on 14.07.2022) have granted benefit of bail to the accused-persons. Learned counsel further submits that the case at hand is squarely covered by the principles as laid down while deciding the aforesaid bail applications. 3. Learned counsel for Vajir Kharab submits that at the time of recovery, when Prithviraj was interrogated, he named Shivendra @ Sanju from whom, he allegedly purchases the contraband article. He further drew the attention of this Court towards seizure memo and also towards the interrogation note under Section 50 of the NDPS Act. He further submits that no recovery was effected from Shivendra @ Sanju or from Vajir Kharab. He further drew the attention of this Court towards seizure memo and also towards the interrogation note under Section 50 of the NDPS Act. He further submits that no recovery was effected from Shivendra @ Sanju or from Vajir Kharab. He further submits that information given by Shivendra @ Sanju under Section 27 of the Evidence Act and so also under Section 67 of the NDPS Act wherein Vajir Kharab has not been named. He further refer to the statement of P.W. 1 Smt. Lalita Rathod, Investigating Officer who in her cross-examination admitted that there is no direct or indirect evidence on record which could connect the petitioner Vajir Kharab with the alleged recovery or crime. He further submits that if there is some evidence on record then only Vajir Kharab can be kept in custody. Lastly, he submits that as conclusion of trial will take a long time thus during pendency, the petitioners may be enlarged on bail. 4. Aforesaid contentions are opposed by learned Public Prosecutor on the grounds that the contraband Alprazolam tablets were recovered from the bag hanged on the motor-cycle and not from the body of the petitioner, hence the provision of section 50 of the NDPS Act is not attracted. He further submits that this is a case of commercial quantity thus, unless conditions of Section 37 of the NDPS Act are fulfilled, petitioners cannot be enlarged on bail. 5. Heard learned counsel for the petitioners as well as learned Public Prosecutor for the State. Perused the material available on record and also respectfully perused the orders, passed by the Coordinate Benches of this Court in the aforesaid referred matters. 6. As regards to recovery memo is concerned, prima facie perusal of the same indicates that one bag was hanged on the right handle of the motor cycle and when biker Prithviraj was intercepted, he tried to escape from the place of incident. In search memo, it was not clearly indicated that recovery was made from person. This Court cannot look into this argument on its own merit as the same is the subject matter of evidence of the prosecution but recovery of 1200 tables of Nrx Alprazolam Tablets IP 0.5 mg was effected from the conscious possession of Prithviraj, which is a commercial quantity. This Court cannot look into this argument on its own merit as the same is the subject matter of evidence of the prosecution but recovery of 1200 tables of Nrx Alprazolam Tablets IP 0.5 mg was effected from the conscious possession of Prithviraj, which is a commercial quantity. As regards to commercial quantity is concerned, the Hon’ble Supreme Court in the case of Union of India through NCB Vs. Mohd. Nawaz Khan reported in (2021) 10 SCC 100 held that unless conditions of Section 37 of the NDPS Act are satisfied, benefit of bail cannot be granted to the accused. 7. As regards the case of Vajir Kharab is concerned, whatsoever is referred in arguments on behalf of this petitioner, the same are part of record as Investigating Officer Smt. Lalita had already examined as P.W. 1 on behalf of the prosecution. Besides the statement of P.W. 1 Smt. Lalita, statement of P.W. 2 Balwant Kumar, Investigating Officer was also recorded, who recorded the statement of Shivendra @ Sanju under Section 27 of the Evidence Act in which it is stated that recovered contraband was purchased from Bhagwan Medical, Delhi which was owned by Vajir Kharab and the same is part of the statement deposed by him before the learned trial Court. Accused-Vajir Kharab was arrested by P.W.2 Balwant Kumar, Investigating Officer and the entire investigation is carried out by him only. This Court cannot meticulously examine the evidence so collected and deposition so made before the learned trial Court. One of the referred order passed by the Coordinate Bench of this Court in the matter of Vajir Kharab (S.B. Criminal Misc. Bail Application No.9031/2022) indicates that it was a second bail in FIR No.323/2021 registered at the Police Station Purani Abadi, District Sri Ganganagar for the offence under Section 8/22 of the NDPS Act related to accused-Vajir Kharab and he was released on bail by the Coordinate Bench on 14.07.2022, it clearly indicates that there are other cases registered against the accused-Vajir Kharab under the NDPS Act. 8. In view of the material available on record and considering the facts and circumstances of the case, presently this Court is not inclined to accept the bail applications filed on behalf of above named petitioners. Thus, the same are dismissed.