ORDER

31/07/2024

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

S.No. Particulars of the Case 1. FIR Number 26/2024 2. Concerned Police Station Airport 3. District Jodhpur City East 4. Offences alleged in the FIR Sections 8/18, 29 of the NDPS Act, Sections 3 & 25(1-B)(a) of the Arms Act 5. Offences added, if any -

6.Date of passing of impugned order 20.04.2024 (2 of 10)

2.Briefly stated the facts of the case are that on 13.02.2024, the IPS Probationer Abhishek Asandu along with his team reached at the house of Banshi Lal; it was found that a man was sleeping on a cot and other seven persons were sleeping on the floor. The person who was lying on the cot woke up and when asked for his name to which he replied his name was Banshi Lal. During search, three poly bags having black liquid substance were recovered which were lying under the cot on which Banshi Lal was sleeping.

He said that it is opium milk and total weight of which was 3.549 Kg. Another seven persons disclosed their names as Toofan, Sadalal, Unkarlal, Ganpat, Parasmal, Dinesh and Anil. A pistol and two cartriges were recovered from Dinesh’s possession.

Thereafter, he was arrested and a case under Sections 8/18, 29 of the NDPS Act and under Section 3/25 of the Arms Act was registered.

3.It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are several flaws and laches in the case of the prosecution. 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 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 recovered contraband is way above the demarcated commercial quantity and therefore, in view of the bar (3 of 10) contained under Section 37 of NDPS Act, no case of bail is made out.

5.I have considered the submissions made by both the parties and have perused the material available on record.

6.This Court on 30.05.2024 directed the Investigating Officer to remain present before the Court along with the case diary and CCTV footages which were supplied to the police in a pen drive alongwith a certificate under Section 65-B of the Evidence Act on 05.07.2024.

7.On 05.07.2024, this Court has passed the following order: -

1.Learned counsel for the petitioner submits that a patently false case has been lodged against the petitioner by planting false recovery of opium and this fact can very well be verified from the CCTV camera installed near the seizing place. As per him, the footages of the CCTV camera were taken in a pen drive and so submitted before the police concerned to bolster their plea of innocence and a copy of which has been made available for the perusal of this Court as well.

2.It is the case in which the claim of the prosecution party is that certain quantity of opium has been recovered from the house of the petitioner and in the exact contrast it is contended that no such things were recovered as claimed by the police officer and the actual scenario can be verified from examining the footage captured on the CCTV cameras of the relevant time installed at the alleged place of recovery. There appears a serious conflict between two claims. The memos of recovery recites recovery of opium from the place mentioned in the memo and the footage available are depicting an altogether different scene.

(4 of 10)

3.The CCTV footages stored in a pen drive were seen during course of the hearing of the bail application.

4.Today, Mr. Hanuman Singh, CI