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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 13145/2021

Rajesh Kumar S/o Ram Prasad, Aged About 31 Years, Ghotda

Patta, P.s. Bhadra, Tehsil Bhadra, Dist. Hanumangarh. (At
Present Lodged In Sub Jail, Rajgarh, Dist. Churu).
----Petitioner
Versus
State, Through Pp
----Respondent

For Petitioner(s) : Mr. Devendra Mahalana

For Respondent(s) : Mr. N.S. Bhati, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

09/03/2022
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.

This Court perused the material available on record.

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.

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

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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. 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.

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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.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.”

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.

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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.

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.

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.

Learned Public Prosecutor opposed the bail application.

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.

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.

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

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and every date of hearing and whenever called upon to do so till

the completion of the trial.

(DR.PUSHPENDRA SINGH BHATI),J

69-Zeeshan

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