The court ruled that the conditions for bail under Section 37 of the NDPS Act were not satisfied, emphasizing that disability alone does not justify bail in serious drug offences.

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. 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.

Lea