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2025 DIGILAW 587 (RAJ)

Rajesh Kumar v. Union of India

2025-03-05

KULDEEP MATHUR

body2025
Order : 1. This third application for bail under Section 439 Cr.P.C. (483 BNSS) has been filed by the petitioner who has been arrested in connection with F.I.R. No.VIII (10)/09/NCB/JZU/2018 of NCB Jodhpur, for offences under Sections 8/18 and 29 of NDPS Act. 2. As per the prosecution, on 18.06.2018, contraband (opium) greater than commercial quantity weighing 5 kgs. 750 gms. was recovered from the conscious possession of the co-accused persons namely Avinash Kumar, Yogendra Kumar and the present petitioner i.e. Rajesh Kumar by the team of NCB Jodhpur at Chandra Vilas Lodge, Station Road, Jodhpur. 3. Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the present case. Drawing attention of the Court towards the challan papers and the various other documents attached with the case file, learned counsel submitted that as per the prosecution, the allegation against the petitioner is that he along with co-accused persons was carrying one black bag containing 5 kgs. 750 gms. of opium. Learned counsel submitted that the story of the prosecution is absolutely false and fabricated as it is not possible for the petitioner who is a disabled person to carry such a heavy weighted bag with co-accused persons. 4. Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody; the trial against the petitioner is not likely to be concluded in the near future; the petitioner is suffering from 75% disability and can’t even walk without assistance; and so also that he is not likely to involve himself in a case of similar nature, in case, he is enlarged on bail by this Court. On these grounds learned counsel for the petitioner implored the Court to enlarge the petitioner on bail. 5. Per contra, Shri, M.R. Pareek, learned Spl. Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that in a case involving illegal trade of contraband greater than commercial quantity, unless the twin conditions enumerated under Section 37 of the NDPS Act are duly satisfied, an accused person is not entitled to be enlarged on bail. 6. 5. Per contra, Shri, M.R. Pareek, learned Spl. Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that in a case involving illegal trade of contraband greater than commercial quantity, unless the twin conditions enumerated under Section 37 of the NDPS Act are duly satisfied, an accused person is not entitled to be enlarged on bail. 6. Drawing attention of the Court towards the order dated 08.04.2021 passed by the co-ordinate Bench of this Court while deciding S.B. Criminal Bail Cancellation Application No.23/2021 titled as “ Narcotics Control Bureau v. Rajesh Kumar ” , learned Special Public Prosecutor submitted that the bail granted to present petitioner by the Special Judge NDPS Act cases, Jodhpur in Criminal Misc. Application No.69/2019 vide order dated 08.02.2019 came to be cancelled by the co-ordinate Bench of this Court on the ground that the twin conditions enumerated under Section 37 of the NDPS Act are not satisfied in the present case and that the disability of an accused cannot solely be a reason to enlarge him on bail. 7. Learned Special Public Prosecutor vehemently contended that the grant of bail to the petitioner in the present case would not only go against the spirit of the NDPS Act but would also convey a wrong message to the society that being a disabled person, the petitioner has a license to indulge in serious offences with impunity. 8. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 9. The order dated 08.04.2021 passed by the co-ordinate Bench of this Court while deciding S.B. Criminal Bail Cancellation Application No.23/2021 titled as “ Narcotics Control Bureau v. Rajesh Kumar ” is reproduced hereinbelow for ready reference:- “Heard learned Special Public Prosecutor for Narcotics Control Bureau and learned counsel for the respondent-accused. The instant application for cancellation of bail has been preferred by the Narcotics Control Bureau, Jodhpur for assailing the order dated 08.02.2019 passed by the Special Judge, NDPS Act Cases, Jodhpur in Criminal Misc. Application No.69/2019 whereby, the bail application of the respondent-accused under Section 439 Cr.P.C. was accepted. The instant application for cancellation of bail has been preferred by the Narcotics Control Bureau, Jodhpur for assailing the order dated 08.02.2019 passed by the Special Judge, NDPS Act Cases, Jodhpur in Criminal Misc. Application No.69/2019 whereby, the bail application of the respondent-accused under Section 439 Cr.P.C. was accepted. Learned Special Public Prosecutor Shri M.P. Pareek submits that ex-facie the order impugned is illegal on the face of the record because contraband opium which was recovered from the three accused persons namely Avinash Kumar and Yogendra Kumar weighed 5 Kg 750 gms., which was well above the commercial quantity. All the three accused persons are residents of Bihar. They failed to offer any explanation for being found in possession of the contraband opium. He points out that two bail applications preferred by the accused Yogendra Kumar and five bail applications preferred by the accused Avinash Kumar have been rejected by this Court. He drew the Court’s attention to the Supreme Court judgment in the case of State of Kerala Etc. Vs. Rajesh Etc. reported in AIR 2020 SC 721 wherein the Hon’ble Apex Court considered the concept of bail under the NDPS Act and held that before granting bail to the accused for an offence under the NDPS Act, where the recovered quantity is commercial, it is essential for the Court seized of the matter to record a satisfaction in terms of Section 37 of the NDPS Act. He urges that the impugned order dated 08.02.2019, does not indicate any such satisfaction recorded by the trial Court and hence, the same cannot be sustained. Learned counsel Shri B.R. Bishnoi, representing the respondent-accused vehemently and fervently contended that the accused is suffering from 75% disability and is not even in a position to walk without assistance. He thus urges that it is totally impossible to believe the story of prosecution that all the three accused were found carrying the single bag containing 5kg 750gms opium through a stair case which was just 28 feets 6 inches wide. He thus urges that ex-facie the entire story of the prosecution is false and fabricated. However, Shri Bishnoi is not in a position to dispute the fact that the recovered contraband was well above the commercial quantity. He thus urges that ex-facie the entire story of the prosecution is false and fabricated. However, Shri Bishnoi is not in a position to dispute the fact that the recovered contraband was well above the commercial quantity. Law is well settled that in cases where the weight of the contraband narcotic drug is more than commercial quantity, the Court considering the bail of the accused would definitely be under an obligation to record the satisfaction under Section 37 of the NDPS Act which reads as below:- Section 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985 37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section(1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. However, the order impugned is totally silent on this aspect. Thus, the controversy at hand is squarely covered by the ratio of Hon’ble Supreme Court judgment (State of Kerala Vs. Rajesh) supra relied upon by Shri Pareek. Hence, the impugned order cannot be sustained, quashed and set aside. The bail bonds of the respondent-accused are cancelled. He shall surrender before the trial court within next thirty days. Needless to say that after surrendering, the accused shall at liberty to file a fresh regular bail application, which shall be considered and decided as per law. The application for cancellation of bail is allowed in these terms.” 10. The bail bonds of the respondent-accused are cancelled. He shall surrender before the trial court within next thirty days. Needless to say that after surrendering, the accused shall at liberty to file a fresh regular bail application, which shall be considered and decided as per law. The application for cancellation of bail is allowed in these terms.” 10. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that in the present case, the contraband (opium) recovered from the conscious possession of the petitioner and the co-accused persons is above the commercial quantity. 11. The Special Judge, NDPS Act Cases, Jodhpur vide order dated 08.02.2019, accepted the bail application filed by the petitioner under Section 439 Cr.P.C. on the solitary ground of he being a physically challenged person. A co-ordinate Bench of this Court vide order dated 08.04.2021 was pleased to allow the application for cancellation of bail filed on behalf of the Narcotics Control Bureau in S.B. Criminal Bail Cancellation Application No.23/2019 . The co-ordinate Bench directed the petitioner to surrender within 30 days from the date of the order. 12. The order dated 08.04.2021 passed by co-ordinate Bench of this Court came to be challenged before the Hon’ble Supreme Court of India by way of filing Special Leave to Appeal (Crl.) No.3886/2021 “ Rajesh Kumar v. NCB ” . The Hon’ble Apex Court was pleased to reject the SLP filed by the accused-petitioner vide order dated 26.07.2021. 13. From a perusal of the record of the case, this Court finds that the petitioner after dismissal of the SLP filed by him before the Hon’ble Supreme Court of India did not surrender before competent criminal Court and absconded for more than one year and four months . It is also to be noticed here that while the petitioner was on bail, he got involved in two cases of similar nature as well. At present, the petitioner is facing trial for the following cases under the NDPS Act:- Sr. No. FIR Number & Police Station Case Number Section Date Status Date of Arrest Release on any Previous Occasion (If Any) 1. 119/2022 ] iqfyl Fkkuk Mkafx;kokl - 8/18 ,uMhih,l ,DV - 141/2022 - fopkjk/khu 2. viii(10)01 /NCB/ASZ/ 2021 vtesj - 8/18, 29 ,uMhih,l ,DV - - - fopkjk/khu 3. viii(10)09 /NCB/JZU/2018 - 8/18, 29 ,uMhih,l ,DV - - - fopkjk/khu 14. 119/2022 ] iqfyl Fkkuk Mkafx;kokl - 8/18 ,uMhih,l ,DV - 141/2022 - fopkjk/khu 2. viii(10)01 /NCB/ASZ/ 2021 vtesj - 8/18, 29 ,uMhih,l ,DV - - - fopkjk/khu 3. viii(10)09 /NCB/JZU/2018 - 8/18, 29 ,uMhih,l ,DV - - - fopkjk/khu 14. The material placed on record would reveal that the petitioner is a habitual offender. After bail was granted to him by the learned Spl. Judge NDPS Act Cases, Jodhpur vide order dated 08.02.2019 on the solitary ground that he is a disabled person, the petitioner got involved in two more cases for the offences under the NDPS Act. Further, the petitioner even after cancellation of the bail granted to him by the learned Spl. Judge NDPS Act Cases, Jodhpur did not surrender before the competent criminal Court and absconded from his known address for a period of more than one year and four months. 15. In view of above, this Court has no hesitation in coming to a conclusion that the twin conditions under Section 37 of the NDPS Act are not satisfied in the present case and the sole argument of learned counsel for the petitioner that the accused-petitioner is suffering from 75% disability cannot be considered as a valid ground to enlarge him on bail. 16. It is also to be noticed that the co-accused persons namely Avinash Kumar and Yogendra Kumar have been enlarged on bail by the co-ordinate Bench of this Court vide order dated 18.05.2023 on the ground of delay in trial but case of the petitioner are clearly distinguishable from that of the case of co- accused persons and he cannot claim entitlement to bail on the ground of parity for the simple reason that the delay in trial is solely attributable to the petitioner and he should have surrendered before the competent criminal Court in compliance of the order dated 08.04.2021 passed by the co-ordinate Bench of this Court while deciding S.B. Criminal Bail Cancellation Application No.23/2021 titled as “Narcotics Control Bureau v. Rajesh Kumar”. Further, looking to the past conduct of the petitioner, this Court is unable to record a finding that in case, the petitioner is enlarged on bail, he is not likely to commit any offence. 17. Consequently, this third bail application under Section 439 Cr.P.C. (483 BNSS) is dismissed.