HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc. Bail No. 7111 / 2017

Khartha Ram Son of Hari Singh, By Caste Jat, Resident of

Mandpura, Barwala, Nagana Police Station, District Barmer.

(Lodged in District Jail, Barmer)

----Petitioner

Versus

State of Rajasthan

----Respondent

_____________________________________________________

For Petitioner(s) : Mr. Vijay Raj Bishnoi.

For Respondent(s) : Mr. O.P. Rathi, PP.

Mr. Ram Niwash, SHO, P.S. Siwana, present in person.

_____________________________________________________

HON'BLE MR. JUSTICE SANDEEP MEHTA

Order

11/09/2017

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

The instant second bail application under Section 439 Cr.P.C.

has been preferred on behalf of the petitioner who is in custody in

connection with F.I.R. No.152/2016, registered at Police Station

Sindhari, District Barmer for the offences under Sections 8/15 and

29 of the NDPS Act and 3/25 of the Arms Act.

The first application for bail submitted on behalf of the

petitioner was rejected by this Court upon being withdrawn.

Thereafter, this second bail application has been moved.

Shri Vijay Raj Bishnoi, learned counsel representing the

petitioner urges that the petitioner has been named in this case as

an occupant of the Honda vehicle No.RJ-46-CA-0267 from which

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contraband poppy straw weighing 378 Kgs. was recovered. He

points out that it is mentioned in the seizure memo that the driver

of the vehicle was identified as Virdha Ram whereas the petitioner

was identified as the other occupant of the vehicle. Both the

accused sitting in the vehicle managed to escape from the scene

of occurrence on seeing the police party. The seizure memo

records without specifying the name of the particular witness that

the members of the raid party (the staff) identified the two

occupants of the vehicle viz. Virdha Ram and Khartha Ram. Shri

Bishnoi urges that the name of the staff member who allegedly

identified the accused has not been mentioned either in the

seizure memo nor, did any member of the police party present at

the time of seizure, gave evidence under Section 161 Cr.P.C.

claiming to have identified the escaped accused as Virdha Ram

and Khartha Ram. He further urges that by way of a significant

development, Virdha Ram has been let free by the investigating

officer on the premise of plea of alibi. He thus urges that there is

no evidence worth the name on the record of the case so as to

justify arraignment of the petitioner in this case and thus implores

the Court to release the petitioner on bail.

Learned Public Prosecutor assisted by the investigating

officer Shri Ram Niwash, SHO, P.S. Siwana vehemently opposes

the submissions advanced by the petitioner’s counsel. However, he

too is not in a position to dispute the fact that in the seizure

memo, a bald mention has been made that the staff members

identified the two occupants of the vehicle as Virdha Ram and

Khartha Ram. The name of the particular staff member who

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identified the accused was not specified in the seizure memo.

None of the staff members, who were examined under Section

161 Cr.P.C., has individually taken the responsibility of identifying

the accused. Virdha Ram, who was allegedly driving the offending

vehicle, has been let free on the basis of plea of alibi. Though the

learned Public Prosecutor claims that the petitioner is arraigned in

other cases under the NDPS Act but in the case at hand, there is

no convincing evidence so as to keep the accused behind the bars.

In this background, I am of the opinion that there exists

valid and sufficient grounds so as to enlarge the petitioner on bail.

Accordingly, the second bail ap