Back
1996 Supreme(Raj) 776
High Court Of Rajasthan
Judgename : A.S. Godara
Ashwani Kumar Bhardwaj - Appellant
Versus
State of Rajasthan - Respondent
Criminal Miscellaneous Bail Appeal No. 2988 of 1996
Decided On : 12/20/1996
H.D. Purohit, Anand Purohit, R.K. Charan and Pradeep Shah, for the Appellant
K.L. Jashmatia, Addl. Adv. General and S.K. Vyas, Public Prosecutor, for the Respondents
In cases involving charges under the Narcotic Drugs and Psychotropic Substances Act, 1985, the court may grant bail to the accused if there are sufficient grounds to believe that the accused was not a privy to the commission of the offence charged with, considering the circumstances and evidence.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8/15 - ACCUSED-PETITIONER CHARGED WITH MANUFACTURING, POSSESSING, AND SELLING/TRANSPORTING OPIUM POPPY POWDER - COURT GRANTS BAIL CONSIDERING THE CIRCUMSTANCES AND EVIDENCE.
Fact of the Case:
The accused-petitioner, Mr. Bhardwaj, was involved in illegal activities related to excisable contraband articles. He obtained contracts for collection, storage, and transportation of opium poppy in the name of his associates. The petitioner and his co-accused, Mukesh Kumar, were in control of a warehouse godown where opium poppy was stored. During a raid, 500 gms of opium poppy powder was found in a mill (machine) on the premises.
Finding of the Court:
The court found that there was ample evidence to believe that the petitioner was deeply involved in illegal activities related to excisable contraband articles. However, the prosecution had not filed a charge-sheet for any contravention in respect of obtaining a license for the collection and warehousing of poppy husk in the warehouse godown. The court also noted that the petitioner was already in jail when the premises were raided and that it was not clear whether Mukesh Kumar conducted the illegal activities at the instance and under the authority and knowledge of the petitioner.
Issues: 1. Whether the petitioner was involved in the commission of the offence charged with under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Whether the petitioner should be granted bail considering the circumstances and evidence.
Ratio Decidendi: The court held that the possibility could not be totally ruled out that the petitioner was not a privy to the commission of the offence charged with. The court considered the petitioner's background, the evidence collected during the investigation, and the fact that the petitioner was already in jail when the premises were raided. The court concluded that there were sufficient grounds to bail out the accused petitioner.
Final Decision: The court allowed the bail petition and ordered the release of the accused-petitioner on furnishing a personal bond and two surety bonds. The petitioner was also directed not to indulge in any illegal activity in contravention of the NDPS Act and Rules framed thereunder while on bail.
A.S. Godara, J.-This bail petition has been filed under Section 439, CrPC by the accused-petitioner in FIR No. 228/96. P.S. Chanderia, District Chittorgarh, after similar application was dismissed by the learned Addl. District and Sessions Judge No. 1. Chittorgarh in Criminal Disc. Petition No. 563/96 vide its order dated 6-12-1996.
2. Briefly stated, the prosecution case against the present petitioner as well as his co-accused Mukesh Kumar Sharma who is, presently absconding evading his arrest right from the beginning, is that Bhanwar Singh, SHO of P.S. Chanderia received an information on 10-6-1996 that Mukesh Kumar was running a Mill wherein poppy-husk was being powdered. Bhanwar Singh, accompanied by his subordinate officials as well as two motbir witnesses Nanda and Ram Singh, raided the premises situated in the village Bojunda, on the Chittorgarh-Udaipur highway road and they found that a room was being used as a Mill for preparation of the powder by milling the poppy-husk illegally in the premises that was situated just behind the warehouse go down, found to have been taken on rent by Mukesh Kumar in his own name and, in fact, the same having been taken for and on behalf of the present petitioner, powder of poppy-husk weighing 500 gms. was taken out from the machine of the Mill and, after due formalities, two packets of samples each weighing 100 gms and the remaining lot of the contraband, were packed and sealed in three separate packets by the raiding party. All the persons incharge of the premises of the warehouse godown as well as adjacent to rooms whereat the Mill was so found, made good their escape. The Mill (machine) was also seized. Lastly, on the basis of the report of Bhanwar Singh, FIR NO. 228-96 under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, (for short ‘the Act) was registered and investigation was taken up by the Dy. S.P.
3. Thepresent petitioner was already arrested on 7-6-1996 in another case and he was continuing in custody had, during the course of investigation, his formal arrest was also made in this case as well. As regards Mukesh Kumar, he could not be arrested and is still absconding.
4. The petitioner moved similar bail petition under Section 439, CrPC before the Lower Court and the same, as above, was lastly, rejected on 6-12-1996 and hence this petition.
5. I haveheard the learned counsel for the petitioner as well as the learned Addl. Advocate General and have also been taken through the statements of Ratan Lal, Pane Singh and Nawal Ram, recorded under Sections 161 and 164, CrPC besides the statements of Shakti Singh, Ashok Chandak, Dilip Kumar, Rajendra Kumar Pareekh, Hamath Singh (Both Excise Officers), Shyam Lal, Devi Ram, Kishna, Bhanwar Lal as well as Manoj Kumar, Dhoola Ram, Mubarik and Shiv Singh, Bhanwar Singh SHO of P. S. Chanderia, along with his associates, besides, Nanda and Ram Singh motbir witnesses, who raided the premises wherein the alleged powdered opium poppy weighing 500 gms. was recovered from the grinding mill (Machine), are the witnesses of the alleged search and seizure.
6. Thelearned counsel for the petitioner vehemently argued that since Shri Shriniwash Jonga Rao, S.P. Chittorgarh because of some trifling incident, got annoyed and enraged and, consequently, he along with his subordinate police officials, is bent upon wrecking vengence on the petitioner and as a result, he has been falsely booked in as many as 16 cases besides under the National Security Act as well and the order passed under Section 3 of the Act at the initiative of S.P., was quashed by the High Court and has also been affirmed by the Hon’ble Supreme Court and so the S.P., Chittorgarh and his subordinates have made it a prestige point thereby not allowing the petitioner to be bailed out in all the cases, so pending against him.
7. It is also contended that, as is evident from the statements of Mukesh Kumar and Dhoola Ram Sindhi, the warehouse godown, being a licensed
