The court emphasized that under Section 37 of the NDPS Act, bail can only be granted if the court is satisfied that the accused is not involved in the alleged crime, especially for habitual offenders.

Order

02/02/2024 This is the 3rd bail application and this Court vide order dated 06.11.2023 has rejected the second bail application filed on behalf of the applicant.

The order passed by this Court while rejecting the bail application is reproduced below for ready reference:-

“This second application for bail under Section 439 Cr.P.C . has been filed by the petitioner who has been arrested in connection with FIR No.159/2019 registered at Police Station Dangiyawas, District Jodhpur, for offences under Sections 8/15 of the NDPS Act,420, 465, 468, 472, 473 IPC.

Learned counsel for the petitioner submitted that as per prosecution, on 25.11.2019, police team of P.S.Dangiya was recovered contraband (poppy husk/straw) weighing 345 kgs. From a Hyundai Creta car having registration No.RJ06.CC.5937. Learned counsel submitted that as per prosecution, one police Constable identified the present petitioner as a person fleeing away from the incident leaving the offending vehicle in an abandoned condition. Learned counsel submitted that the petitioner has been arrested for the alleged incident which happened in the year 2019, only on 2.11.2022. It was urged that the contraband was not recovered from the conscious possession of the present petitioner and since the petitioner was not known to the Constable Teja Ram, who had identified the present petitioner as a person fleeing away from the place of incident, the entire prosecution case is doubtful. Learned counsel further submitted that after apprehending the petitioner, test identification parade was also conducted by the investigating agency. Learned counsel submitted that had the petitioner already been identified by Constable Teja Ram, who was member of the police team which recovered contraband greater than the commercial quantity, there was no reason or occasion for the prosecution to conduct test identification proceedings.

Lastly, learned counsel submitted that the petitioner is in judicial custody, investigation against him has already been completed and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

Per contra, learned Public Prosecutor opposed the bail application and submitted that huge quantity of contraband was recovered from the offending vehicle. Learned Public Prosecutor submitted that the petitioner has been identified by Constable Teja Ram, who was member of the police team, therefore, at this stage, involvement of the petitioner in commission of alleged crime cannot be ruled out. It was, therefore, prayed that the petitioner, who has allegedly committed offence under the NDPS Act, does not deserve to be enlarged on bail.

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

Having considered the rival submissions, facts and circumstances of the case, FIR and challan papers, this Court prima facie finds that the statements of the Constable Teja Ram have already been recorded before competent criminal court as PW-1 wherein he has stated that he knew the petitioner previously and had thus, identified him. This Court also prima facie finds that name of the present petitioner was disclosed by the Constable Teja Ram at the time of seizure proceedings itself i.e. on25.11.2019 and therefore, there is no reason to doubt the credibility of the information furnished by the Constable Teja Ram(PW-1). This Court also prima facie finds that the petitioner is a habitual offender and one more case under NDPS Act is already pending against him, therefore, this Court is unable to record its satisfaction/mandatory findings in terms of Section 37 of the NDPS Act that the petitioner is not involved in commission of alleged offence under the NDPS Act. Thus, without expressing any opinion on merits/demerits of the case, this Court is not inclined to enlarge the petitioner on bail.

Accordingly, the bail application under Section 439 Cr.P.C . is rejected.

It is ho