The court's decision was influenced by the acquittal of the co-accused and the prosecution's failure to prove the nature of the seized contraband under the NDPS Act.

JUDGMENT

Subodh Abhyankar, J. - They are heard. Perused the case diary / challan papers.

2. This is applicant's FIRST application under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as the present applicant is apprehending his / her arrest in connection with Crime No.1/2022 registered at Police Station Kota, District Rajasthan for offence punishable under Sections 8/15(C)/21(C) of the NDPS Act.

3. The allegation against the present applicant is that he was also involved in the aforesaid case wherein his brother main accused Mangilal was found in possession of 392 Kgs of poppy straw, who has also given a memo under Section 27 of the Evidence Act and has stated that it was stolen by him from the present applicant's room.

4. Counsel for the applicant has submitted that the co-accused Mangilal has already been acquitted by the trial Court in Special Case.No.19/2022 dated 13.03.2023 and even the keys of the room from which the aforesaid contraband was stolen has been found from the possession of main accused Mangilal. Counsel for the applicant has further submitted that the case of the prosecution is that father of the applicant is a opium cultivator and the contraband was lying in the room of the present applicant. However counsel has not denied that from the room of the applicant, no contraband has been recovered and thus, his custodial interrogation is not necessary. Thus, it is submitted that the applicant be released on anticipatory bail.

5. Counsel for the respondent, on the other hand, has opposed the prayer. O n due consideration of submissions made by learned counsel for the parties and on perusal of the case-diary and also on the perusal of the judgment delivered by the trial Court where applicant's brother main accused Mangilal has been acquitted on the ground that the contraband was seized from him and it is also found that the trial Court has observed that the prosecution has failed to prove that the contraband seized from the possession of the main accused Mangilal was actually poppy straw as per the provisions of the NDPS Act. In such circumstances, this Court has no hesitation to hold that the custodial interrogation of the applicant is not necessary.

6. Accordingly, the application stands allowed. It is directed that in the event of arrest, applicant JAYRAJ GURJAR S/O NANURAM GURJAR, shall be released on bail, upon executing a personal bond in the sum of Rs.25,000/- (rupees twenty five thousand only) and furnishing solvent surety in the like amount to the satisfaction of the Arresting Officer (Investigating Officer).

7. The applicant shall make himself / herself available for interrogation by a Police Officer, as and when required. He / she shall further abide by the other conditions enumerated in Sub Section (2) of Section 438 of the Code of Criminal Procedure, 1973.

8. The applicant is also directed to cooperate with the investigation. Accordingly, Miscellaneous Criminal Case No.60310/2022 stands allowed.