The prosecution must provide strong prima facie evidence to justify the denial of bail; mere assertions are insufficient for continued detention.

JUDGMENT :

FARJAND ALI, J.

1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. I have considered the submissions made by both the parties and gone through the niceties of the matter.

5. The first bail application of the petitioner was rejected by this Court owing to the embargo contained under Section 37 of NDPS Act and the nature and gravity of the case. He was given a liberty to renew the prayer for bail after statement of Seizing Officer is recorded in the trial and now, he has been examined as P.W.-3. I have also gone through his statement. It is the case of the prosecution that on 16.01.2023, the police team of police Station Kotwali, Nimbahera noticed suspicious circumstances, upon which, an attempt was made to stop a vehicle, which halt at a place after colliding with a stone. It is stated that two persons were there in the car- Creta bearing registration No. - MH 14 GX 0770. One Suresh S/o Kalu Ram who has been apprehended at the spot and he stated that the other person had made his escape good by fleeing from the spot. In the Parcha Kayami Report, it is stated that upon asking, the co-accused Suresh Bishnoi told the Officer of the Police that the other person who fled away from the spot was one Tufan Banjara, resident of nearby Neemuch, Madhya Pradesh having mobile No.6268558373. During the course of investigation, the petitioner was arrested and sent to the judicial custody. The trial had commenced.

6. The argument that there is no direct or indirect nexus of the petitioner with the alleged crime and that he has falsely been implicated in the case and a false case has been foisted against him, has a substance. In Parcha Kayami Report, the name of the accused who fled away from the spot has been shown as Tufan Banjara whilst the petitioner is named as Tufan Singh son of Udai Singh Sondhiya resident of Village Turkiya, District Mandsaur, Madhya Pradesh. The mobile number disclosed by the co-accused during first interrogation at the spot has no connection with the petitioner. It is noticed that the subscriber of the aforementioned mobile number happens to be one Tufan Khichi son of Duraga Khichi and it can easily be inferred that both are different individuals. Interestingly, the mobile phone had been seized by the police at the spot since it was lying in the car from which the contraband was recovered.

7. The disclosure statement made by the principal accused to the police while in police custody recites description of the person who facilitated the crime as Tufan Singh and certainly the same is an improvement from his first disclosure made at the spot. Further the mobile number which is mentioned in the Parcha Kayami Report has no nexus with the petitioner.

8. The seizing officer (P.W.-3) in cross-examination admits that the parental and residential address of the accused named at crime scene has a distinct feature to the petitioner.

9. It is the duty of the prosecution to establish the fact by producing cogent, reliable and strong evidence with the identity of the petitioner and the person who fled away