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2025 DIGILAW 83 (RAJ)

Nakshtra Giri v. State of Rajasthan

2025-01-13

FARJAND ALI

body2025
ORDER : 1. The jurisdiction of this court has been invoked by way of filing an applications under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1 FIR Number 74/2023 2 Concerned Police Station Rohida 3 District Sirohi 4 Offences alleged in the FIR Sections 8/15, 25 & 29 of the NDPS Act 5 Offences added, if any - 6 Date of passing of impugned order (SBCRLMB No.271/2025) 28.10.2024 6.A Date of passing of impugned order (SBCRLM2ndB No.12518/2024) 04.09.2024 2. In nutshell the facts of the case are that on 16.05.2023, SHO Devaram of Rohida Police Station, along with his team, had intercepted an I-20 car bearing registration number RJ 06-CC-5822 at Seendhari Pawati Tiraaha, Valoria, during a routine checkpoint. Upon inquiry, the driver identified himself as Vinod. While the search was ongoing, a Verna car with registration number RJ 06-CB-8260 approached but attempted to flee upon noticing the police. The driver managed to escape, while the passenger, who identified himself as Pawan, was apprehended. Pawan revealed that the fleeing driver was Nakshatragiri. Vinod admitted to escorting the Verna car, which contained illegal poppy husk. Upon inspection, five plastic bags containing 80 kilograms of poppy husky got recovered from the Verna Car without any valid license. Further investigation led to the apprehension of Nakshatragiri, who confessed for procuring poppy husk from accused Dharmendra. . On 06.11.2023, a charge sheet was filed against the accused under sections 8/15, 25, and 29 of the NDPS Act, and the case was registered as Special Case No. 45/2023. On previous occasion bail application of accused Nakshatragirihad been rejected by his Court vide order dated 06.03.2024 passed in SBCRLMB No.12060/2024. 3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioners and they have been made an accused based on conjectures and surmises. Co-accused Vinod and Dharmendra have already been enlarged on bail and the case of the petitioners is not distinguishable from them. 4. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioners and they have been made an accused based on conjectures and surmises. Co-accused Vinod and Dharmendra have already been enlarged on bail and the case of the petitioners is not distinguishable from them. 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail applications and submits that the present case is not fit for enlargement of accused on bail. 5. I have heard and considered the submissions made by both the parties and perused the material available on record. Bail Application No.271/2025 6. The petitioner Pawan was arrested by the police on 17.05.2023 for the allegations that he was in a vehicle from which contraband poppy husk was recovered. The vehicle was driven by one Vinod S/o Udaylal. Upon seeing the police, the drive, Vinod, fled from the spot and escaped, while the petitioner-Pawan, who was seated next to him, remained in the vehicle, stunned, and was apprehended by the police at the scene. He has now moved this bail application on the ground that he has nothing to do with the alleged offence since neither he was having domain over the vehicle in which contraband was transported nor was having any nexus with the contraband. 7. The Seizing Officer P.W.-2. Buddharam has been examined in the trial. During cross-examination in the fourth line, he admitted the fact that the petitioner had boarded the vehicle midway and was not present at the location where the poppy husk was loaded into the vehicle. He had taken a lift in the vehicle from Bindar Circle and his mobile location corroborated this claim. 8. In view of these facts, this Court finds substance in the argument advanced by the learned counsel for the petitioner that the petitioner Pawan had no nexus with the contraband and was left in a difficult situation due to the actions of the principal accused, Vinod. His only fault was that he took a lift in the vehicle, which was later intercepted by the police. A plea gets strength by the fact that the principal accused Vinod, fled from the spot, leaving the vehicle and the petitioner behind. The petitioner did not attempt to flee and remained seated until apprehended by the police. His only fault was that he took a lift in the vehicle, which was later intercepted by the police. A plea gets strength by the fact that the principal accused Vinod, fled from the spot, leaving the vehicle and the petitioner behind. The petitioner did not attempt to flee and remained seated until apprehended by the police. A theft perceives on speak in his beard but not be innocent. Bail Application No.12518/2024 9. So far as bail application of accused Nakshatra Giri is concerned, he has been made accused on the basis of a statement of principal accused which is more confessional in nature. Furthermore, nothing incriminating has been recovered at his instance. 10. This Court feels that simply mentioning in the charge sheet that offence under Section 29 of the NDPS Act is made out against the petitioner is not sufficient enough to allow his incarceration until and unless any material is attached with the charge-sheet showing involvement/participation of the petitioner. For ready reference Section 29 of the NDPS Act is being reproduced as under:- 29. Punishment for abetment and criminal conspiracy. (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. A plain reading of the provision above makes it clear that if a person abetes the other to commit the offence under the NDPS Act, or a person who hatches a conspiracy with other persons to commit an offence punishable under the NDPS Act, can be charged for the offence under Section 29 of the NDPS Act and it does not matter whether the offence was committed or not in consequence of such abetement or in pursuance of the criminal conspiracy hatched by them. 11. Abetement is defined under Section 107 of the IPC for the ready reference, the same is being reproduced hereunder:- Abetment of a thing. A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. From the above, it is revealing that a person abetes the fact of doing of a thing if he instigate someone to do it or a person abates the doing of a thing, if he conspire with others to do it. If an act or illegal omission occurs in furtherance of that conspiracy then it can be said that an offence of abetement was committed. The other aspect of the provision is that if a person, while abeting the other intentionally aids or assists in doing the thing by any of his act or illegal omission, he is an accused of abetement. Criminal Conspiracy is explained under Section 120-B of the IPC, which is as under:- 120B. Punishment of criminal conspiracy. -- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] To invoke the provision of Criminal conspiracy there has to be an agreement of mind between two or more people to commit an illegal act or to commit an act though not illegal but done by illegal means and the parties have a common intention to commit the act. 12. What is emanating from the provision of abetement or conspiracy that there has to be an act of abetement on behalf of the accused or he must be in agreement with the other persons to do an illegal act. After minutely going through the entire charge- sheet, not an iota of evidence or tissue of the material is there to show or suggest that either there had been a meeting between the petitioner and the principal accused or they were in any manner connected with each other or even to say that anything was done by the petitioner which somehow added/assisted/facilitated/or in any manner cooperated with the co-accused. 13. True, it is that the appreciation rather meticulous appreciation of evidence is not to be done at the inception of the trial but at the same time, it cannot be forgotten that here is an issue of releasing a person on bail who has been detained from more than a year for accusation of committing an offence in a particular provision, at least, there must be something to either corroborate/bolster, to support or verify the saying of the police officer that the petitioner either abeted or was in conspiracy with the principal accused. Had it been the case that soon after or at the time of recovery of the contraband; the principal accused made a disclosure regarding involvement/participation of the accused, if the same was disclosed by him, then the fact situation may be different. What would be the basis for the trial of this accused? Had it been the case that soon after or at the time of recovery of the contraband; the principal accused made a disclosure regarding involvement/participation of the accused, if the same was disclosed by him, then the fact situation may be different. What would be the basis for the trial of this accused? Whether only the assertion of the police officer that co-accused is guilty of the charge without single piece of proof; Whether the same as mentioned above, would be sufficient enough to keep a person detained for an indefinite period; Whether in the circumstances mentioned above, the embargo contained under Section 37 of the NDPS Act would come in the way of granting bail; Whether at this stage of judicial proceeding it would be appropriate to declare that he is not guilty of the offence. No, never. It is neither expected nor desirable from a High Court, since doing so, would mean culmination of the trial at its infancy. 14. Considering the totality of facts and circumstances of the case, the fact that uptil now only two witnesses have been examined out of the total projected witnesses, keeping in mind that co-accused Vinod and Dharemedra have already been enlarged on bail and looking to the fact that the trial would surely take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioners. 15. Accordingly, both the bail applications (No.271/2025 & 12518/2024) filed under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners namely Pawan S/o Satyanarayan and Nakshtra Giri S/o Bhanwar Giri shall be enlarged on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.