Bail granted as no contraband was recovered from the petitioners, and the evidence against them was insufficient, satisfying the conditions under the NDPS Act.

Order :

1. These second applications for bail under Section 483 BNSS (439 Cr.P.C.) have been filed by the petitioners who have been arrested in connection with F.I.R. No.27/2023 registered at Police Station Pur, Dist. Bhilwara, for the offences punishable under Sections 8/15, 29 of NDPS Act and Section 477 of IPC.

2. Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the material available on record.

3. Learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the present case. Learned counsel submitted that nothing has been recovered from the conscious possession of the present petitioners.

4. Drawing attention of the Court towards the FIR, the challan papers and the statements of the Investigating Officer (PW.5) recorded before the competent criminal Court, learned counsel submitted that as per the prosecution, the contraband (poppy husk/straw) weighing 215.200 kgs. was recovered from an abandoned pickup vehicle bearing registration No.RJ-14-GG-9701. The petitioners have been made accused in the present case solely on the basis of FASTag of the offending vehicle. Learned counsel submitted that as per the prosecution, the amount of FASTag at toll plaza situated at National Highway-48 was deducted from the FASTag affixed on the windshield of the offending vehicle which was connected/registered with mobile No.9983551145 in the name of Ram Swaroop. When Ram Swaroop was questioned by the Investigating Agency, he stated that mobile No.9983551145 is being used by his younger brother Harikishan (petitioner). The petitioner- Harikishan in the information divulged by him under Section 27 of the Indian Evidence Act stated that on the date of the alleged incident, the offending vehicle was being driven by the petitioner-Kalu Mohammad.

5. Learned counsel submitted that though the petitioners have been implicated in the present case on the basis of the FASTag allegedly affixed on the windshield of the offending vehicle but the Investigating Officer (PW.5) during his Court statements has stated that no such FASTag was recovered by him. Further, there is nothing on record to establish that any FASTag was connected/registered with the mobile phone allegedly used by the petitioner. Learned counsel submitted that the statements of the Investigating Officer are sufficient to show that the petitioners have been made accused in the present case solely on the basis of conjunctures and surmises without there being any direct/corroboratory evidence available against them on record.

6. Lastly, learned counsel for the petitioners submitted that the petitioners are in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioners.

7. Per contra, learned Public Prosecutor has vehemently opposed the bail applications.

8. The relevant portion of the cross examination of the Investigating Officer (PW.5) is reproduced below for ready reference:-

9. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the contraband has not been recovered from the conscious possession of the petitioners; though the petitioners have been implicated in the present case on the basis of the FASTag affixed on the offending vehicle and the mobile phone connected/registered with it but in view of the statements of the Investigating Officer (PW.5) no corroboratory evidence in this regard has been procured/made part of the record by the Investigating Agency. This Court also prima facie fidns that the petitioners do not have any criminal antecedents. The twin conditions enumerated under Section 37 of the NDPS Act are duly satisfied in the present case. Thus, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioners deserve to be accepted.

10. Consequently, these second bail applications under Sec