The court emphasized that bail should be granted when there is insufficient evidence linking the accused to the crime, especially when co-accused have been released on similar grounds.

ORDER :

(KULDEEP MATHUR, J.)

This 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.137/2022 registered at Police Station Mandafiya, Dist. Chittorgarh, for the offences under Sections 8/15 and 8/18 of NDPS Act.

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

3. Learned counsel for the petitioner submitted that co-accused Ashok, on the basis of whose information supplied under Section 27 of the Indian Evidence Act, the petitioner has been implicated in the present case, has already been enlarged on bail by this Court vide order dated 07.01.2025. Learned counsel submitted that apart from the disclosure statements of co-accused Ashok while he was in custody, there is not even an iota of evidence available on record indicating involvement of the petitioner in commission of the alleged crime.

4. The order dated 07.01.2025 passed by this Court while enlarging co-accused Ashok in S.B. Criminal Miscellaneous Bail Application No.11496/2024 is reproduced hereinbelow for ready reference:-

“This second 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.137/2022, registered at Police Station Mandafiya, District Chittorgarh, for offences under Sections 8/15 and 8/18 of NDPS Act.

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

Learned counsel for the petitioner submitted that as per the prosecution, on 29.09.2022, during routine nakabandi, the police team of Police Station Mandafiya, flagged down a white coloured car bearing registration No.GJ-06-JE-9994. The driver of the offending vehicle upon seeing the police party fled away from the scene. The police team upon a search of the offending vehicle recovered contraband (Poppy Husk/Straw) weighing 368.900 kgs. in 29 plastic sacks and Opium weighing 900 gms. in 1 plastic bag.

Learned counsel for the petitioner submitted that the petitioner has been implicated and arrested in the present case solely on the basis of suspicion on 23.02.2024 i.e. after more than one and a half years from the date of recovery of the contraband, without there being any direct or circumstantial evidence against him available on record, indicating his involvement in the commission of the alleged crime.

Drawing attention of the Court towards the challan papers, learned counsel submitted that the Investigating Agency in the challan papers has mentioned that a false and fabricated number plate was used for plying the offending vehicle. The Investigating Agency had recovered a mobile phone from the offending vehicle which contained a sim card No. 9784653753 belonging to one Barkat Khan.

Barkat Khan in his statements recorded under Section 161 Cr.P.C. had stated that he never got the sim card No.9784653753 issued in his favour and the sim card did not belong to him. Learned counsel submitted that upon and investigation with regard to the frequent contacts of Barkat Khan, it surfaced that on 28.09.2022, a day prior to the incident, one Bankaram had exchanged certain calls with Barkat Khan. Thereafter Bankaram in his statements recorded under Section 161 Cr.P.C. informed the Investigating Agency that the sim card No. 9784653753 was being used by the present petitioner. The petitioner however, switched off the mobile/sim card No. 9784653753 from 29.09.2022.

Drawing further attention of the Court towards the challan papers, learned counsel submitted that there is nothing on record to establish that the offending vehicle belonged to the present petitioner or was being used by him for transportation of the contraband illegally.

Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accu