Indefinite detention without substantial evidence linking an accused to a crime is unjustifiable; bail may be granted when procedural lapses and lack of corroborative evidence are present.

Order

18/12/2024

1. The jurisdiction of this court has been invoked by way of filing the instant second bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. In nutshell the facts of the case are on 20.05.2023, SHO, Police Station Kotwali Nimbahera received an information from Harvinder Singh, Head Constable regarding illegal transportation of contraband. On the basis of the said information, the SHO alongwith his team reached Jaliya Check Post and found that a Scorpio Car bearing registration No.UP890 EP 9236 and Truck No.RJ01 GA 9611 were detained by Harvinder Singh Head Constable. In the presence of the driver of the Scorpio Car was Om Nath @ Bhopalnath and his companion was Jagdish Bishnoi whereas the driver of the said Truck was Rajuram @ Rajkumar and Khalasi Rajesh Kumar search of the said vehicles were conducted and huge quantity of poppy husk (221 Plastic Bags weighing 44 Quintal 63 Kg and 500 grams) got recovered. It was disclosed that Mukesh @ Holaram is also involved in smuggling of the contraband. A case under the aforementioned offence has been registered and during investigation, on the confession of the co- accused the present petitioner has been arraigned as an accused in this matter.

3. It is contended on behalf of the accused-petitioner that the petitioner is arrested in this case on the basis of statement of principal accused, however he was not present at the spot thus, 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.

4. 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.

5. Perusal of the record revealing that the first bail application was dismissed as not pressed by this Court vide order dated 19.03.2024 passed in SBCRLMB No.1248/2024 was dismissed as not pressed but a liberty was afforded to the petitioner to renew the prayer for bail again after the statement of Investigating Officer is recorded. Now the Investigating Officer has been recorded. It was done because several procedural defects and non-compliance of mandatory provisions were argued but this Court was of the view that an explanation with regard to the defects pointed out should be taken on record during examination of the Investigating Officer.

6. It is revealing that this Court had directed to learned trial Court to make sincere endeavour to record the statement of investigating officer Virender Singh on preferential basis. In pursuance of the directions issued and so also in a routine post- commencement of trial, the learned trial Court issued summons to the Investigating Officer on 06.04.2024 so that his testimony can be recorded on 01.05.2024, however, on the day fixed for the above purpose, the Investigating Officer/police officer did not turn up. The trial Court issued again warrant to secure his presence before the court on 18.05.2024 but he again did not honour the direction of the Court. The learned trial Court again issued a warrant of arrest by fixing another date but of no avail. Whereupon the Court sought for an explanation for the non- appearance and listed the case for hearing on 02.07.2024 and then again looking to his absence, another notice was issued directing him to appear on 19.07.2024, however, every time the directions