IMPORTANT POINT
Bail under Section 37 of the NDPS Act requires clear evidence of innocence and no likelihood of reoffending, especially for serious crimes.

ORDER :

Kuldeep Mathur, J.

1. This third application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.158/2020, registered at Police Station Bilara, District Jodhpur Rural, for offences under Sections 307/34 of IPC; Sections 8/15 of NDPS Act; and Sections 3/25 of Arms Act.

2. The first bail application No.7992/2023 filed on behalf of the petitioner was dismissed by this Court on 27.04.2023. The second bail application No.895/2024 filed by the petitioner came to be rejected by a detailed order dated 07.02.2024 passed by this Court. The order dated 07.02.2024 passed by this Court is reproduced below for ready reference:-

“1. This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.158/2020 registered at Police Station Bilara, District Jodhpur Rural, for offences under Sections 307/34 IPC, Section 8/15 of the NDPS Act and Sections 3 and 25 of the Arms Act.

2. Learned counsel for the petitioner submitted that as per prosecution, the SHO Police Station Bilara received a source information regarding transportation of narcotics and illegal weapons in an unnumbered scorpio car, which was being escorted by an unnumbered swift dezire car. The police party in furtherance of the aforesaid information started search of the above-mentioned vehicles and reached near Jhakh river area. Thereupon, when unnumbered scorpio vehicle and swift dezire car came in that area, the same were flagged down. However, the persons sitting in the offending vehicles started firing towards police personnel. The present petitioner, who was seen sitting in the unnumbered swift dezire car with the co-accused Raghunath Bishnoi escaped from the place of incident along with the other coaccused persons. As per the prosecution, during the search of the unnumbered scorpio vehicle, contraband (poppy husk/straw) weighing 450 kgs. in 24 plastic bags was recovered.

3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. The petitioner has been arrested after about one year from the date of alleged incident without there being any material indicating his involvement in the commission of alleged crime. Learned counsel submitted that as per prosecution, one Shrawan Kumar, Constable identified the petitioner as a person who escaped from the place of the incident. It was contended that statements of Shrawan Kumar have been recorded before competent criminal court as PW-1, wherein he has admitted that he had never met with the accused person previously and no test identification parade to confirm his involvement/complicity was conducted by the investigating agency. Learned counsel further contended that since the recovery of the contraband was effected from a vehicle in transit, the compliance of the provisions of Section 43 of the NDPS Act ought to have been made by the prosecution.

4. Learned counsel vehemently further contended that though as per prosecution, the petitioner ran away from the place of incident in an unnumbered swift dezire car, however the same has not been recovered by the investigating agency. Learned counsel submitted that there is absolutely no evidence in the form of call details, call locations etc. showing involvement of the petitioner in the alleged crime with the co-accused persons. Learned counsel thus, implored the Court to enlarge the petitioner on bail.

5. Per contra, learned Public Prosecutor has vehemently opposed the bail application. Learned Public Prosecutor submitted that the petitioner is a habitual offender. The petitioner is also involved in a previous case under NDPS Act, therefore, the bar/embargo under Section 37 of the NDPS Act, 1985 would apply in the present case. Learned Public Prosecutor further submitted that it is a settled law that no person accused of offence involving trade of commercial quantity of narcotics is liable to be