HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous Bail Application No. 3923/2022

Bhairulal Son Of Shri Ganesh Narayan Sharma, Aged About 43

Years, Resident Of Baagdo Ka Mohalla, Subhash Circle, Near

Hanuman Temple, Police Station Chomu, Chomu District Jaipur

Rural (Raj.) ( At Present Confined In Central Jail Jaipur)

----Accused-Petitioner

Versus

State Of Rajasthan, Through P.P.

----Respondent

For Petitioner(s)

:

Mr. Anil Kumar Upmant with

Mr. Rajveer Singh

For Respondent(s)

:

Mr. S.K. Mahala, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

15/03/2022

1.

The instant bail application has been filed under Section 439

Cr.P.C. on behalf of accused-petitioner Bhairulal Son Of Shri

Ganesh Narayan Sharma. The petitioner has been arrested in

connection with FIR No.30/2018 registered at Police Station

Lakhanpur, District Bharatpur for the offence(s) under Sections

8/20 of the NDPS Act.

2.

Learned counsel for the accused-petitioner submits that

petitioner is in judicial custody since long. After charge-sheet, the

matter is pending trial and probably it will take a long time to

culminate.

3.

Heard learned counsel for the petitioner as well as learned

Public Prosecutor and gone through the order impugned and

challan papers.

(2 of 3)

[CRLMB-3923/2022]

4.

It is revealing from perusal of the challan paper that on

26.09.2018, a vehicle Maruti Eeco was intercepted by the police

team, which was being driven by the accused-Ramjan Ali. Upon

search, contraband Ganja weighing 38.308 KG was recovered

from eight bundles. Every bundle was carrying different weights.

The bundle carrying highest weight was 5.230 KG. It is a case of

the prosecution that the Seizing Officer collected sample from one

bundle since it was open whilst the other seven bundles were not

touched since those were packed and thus the sample was taken

from only one bundle.

5.

It is also revealing that sample was collected from bundle

which was weighing 2.15 KG Ganja as it was found open. As per

the story of the prosecution, the principal accused-Ramjan was

supposed to deliver the contraband to the petitioner, however,

there is no evidence even for the namesake in the entire challan

papers. If such disclosure by the principal accused had been made

immediately after seizure at the spot, then a plea can be taken by

the State regarding applicability of doctrine of Res Gestae but it is

not a case since there is no whisper in the parcha kayami and the

recovery memo. The entire case of the prosecution hinges upon

the so-called disclosure made by the principal accused to the

police team while in police custody and the same is not admissible

in evidence, in view of Sections 24, 25 and 26 of the Indian

Evidence Act, suffice it to say that there is no legally admissible

evidence on record on the basis of which further incarceration of

the petitioner can be allowed. In the given circumstances, the

embargo contained under the Section 37 of the NDPS Act would

not be applicable since there are no reasonable grounds to

presume involvement of the petitioner in commission of crime. So

(3 of 3)

[CRLMB-3923/2022]

also the weight of one bundle from which ganja was allegedly

recovered is below than commercial quantity.

6.

Considering the arguments advanced by the counsel for the

parties and looking to overall facts and circumstances of the case,

this court deems it just and proper to enlarge the petitioner on

bail.

7.

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

allowed and it is ordered that the accused-petitioner named above

shall be enlarged on bail provided he furnishes a personal bond in

the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to

the satisfaction of the learned trial Judge for his appearance

before the court concerned on all the dates of hearing as and

when called upon to do so.

8.

It is made clear that the observa