Order

17/11/2023

1. The present bail application under Section 439 of the Code of Criminal Procedure has been filed by the applicant, who is in custody in connection with the FIR No.48/2023 registered at Police Station Surajpole, District Udaipur for the offences punishable under Sections 8/18, 22 & 25 of the Narcotic Drugs and Psychotropic Substances Act.

2. Mr. Shambhoo Singh, learned counsel for the applicant submitted that allegation against the applicant is that he was sitting in the abandoned car from which the contraband substances of 34.20 gms MDMA and 220 gms of opium were recovered.

3. Learned counsel submitted that similarly situated co-accused namely, Mustak Khan @ Tinku @ Pawna and Asif Khan have been enlarged on bail by the Co-ordinate Bench of this Court vide its order dated 09.10.2023 and prayed that the applicant be granted similar relief as his case is exactly identical.

4. Learned Public Prosecutor opposed the bail application of the applicant.

5. Heard learned counsel for the parties and perused the material available on record.

6. While accepting the bail applications filed by the co-accused – Mustak Khan @ Tinku @ Pawna and Asif Khan, the Co-ordinate Bench of this Court in its order dated 09.10.2023 in S.B. Criminal Misc. Bail Application Nos.6515/2023 & 7459/2023 has observed thus:

“Learned counsel for the petitioners submits that according to recovery memo, total 34 Gram of MDMA has been recovered from the possession of the petitioners and the FSL report clearly shows that the sample contains a positive test for the presence of Mephedrone. Counsel further submits that according to the Gazette notification dated 05.02.2015 issued by the Government of India, small quantity of Mephedrone is 2 gram and commercial quantity of it is 50 gram. Admittedly, in the present case, total 34 grams of MDMA has been recovered which is below commercial quantity. The accused- petitioners are in judicial custody and the trial of the case will take sufficient long time to be concluded. Therefore, the benefit of bail should be granted to the accused- petitioners.

Dr. Jaya Rathore, SSO (Chemistry) from RFSL Jodhpur present in person submitted that the recovered contraband of MDMA is below commercial quantity.”

7. Having regard to the facts and circumstances of the case and in view of the fact that the recovered contraband substances is below commercial quantity, the embargo of Section 37 of the Narcotic Drugs and Psychotropic Substances Act is not applicable and considering that the applicant was not apprehended at the time of seizure and he was enroped in the case later on and because the co-accused has been granted benefit of bail, I am inclined to accept the bail application filed by the applicant.

8. Consequently, the present bail application filed under Section 439 of the Code of Criminal Procedure is allowed. It is ordered that the applicant – Salman Khan S/o Shri Azij Khan arrested in connection with FIR No.48/2023 registered at Police Station Surajpole, District Udaipur shall be released on bail; provided he executes a personal bond in the sum of ₹1,00,000/- and two sound and solvent sureties of ₹50,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.

9. Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.

(DINESH MEHTA),J

95-Arvind/-