1 1 S.B.CRIMINAL MISC. BAIL APPLICATION NO.1844/2009 Bheru Lal Vs. Central Bureau of Narcotics DATE OF ORDER : 10th December 2009 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Farzand Ali,for the petitioner. Mr.N.K.Rai, Special Public Prosecutor. .... BY THE COURT The petitioner is accused of offences under Sections 8/18, 29 of the NDPS Act and seeks bail under Section 439 Cr.P.C. The learned counsel for the petitioner has strenuously argued on the bail plea with the submissions that the petitioner has been sought to be implicated in the present case merely on the basis of the statement as purportedly made by him on 05.03.2009 under Section 67 of the NDPS Act but the value, worth, and relevance of such a statement remains seriously questionable because the contraband in question was recovered on 25.12.2008; and from the pieces of evidence collected during the investigation until 05.03.2009, the investigating agency had already categorised the petitioner as an accused in this matter. The learned counsel contended that for the petitioner's placement as an accused in this case, the statement as purportedly given by him on 05.03.2009 2 cannot be treated to be an information given under, and for the purpose of, Section 67 of the NDPS Act; and such a statement would be directly hit by Section 24 of the Evidence Act. The learned counsel yet further contended that the alleged statement cannot be said to have been made voluntarily and even by way of specific retraction application as made before the learned Special Judge, NDPS Cases, Chittorgarh on 19.03.2009, the petitioner has clarified that it were not a voluntary statement and that his signatures were obtained in the name of the alleged arrest memo. The learned counsel further submitted that there is not even an iota of corroborative evidence on the record to sustain the accusation against the petitioner of the offence under the NDPS Act. The learned counsel yet further pointed out that the co- accused persons Basant Sualka and Shanker, who were in one way or the other found in the vehicle carrying the contraband, have been ordered to be enlarged on bail by this Court while allowing their respective Bail Applications Nos.3539/2009 and 5541/2009 on 05.10.2009 and on 01.12.2009. 3 The learned counsel further contended that the allegations against the petitioner cannot be taken to be leading to the offence under Section 29 of the NDPS Act; and when the suggestions are, are the most, of some irregular dealing or some embezzlement of the opium produced, in the totality of the facts and circumstances, the petitioner deserves to be enlarged on bail. Having given a thoughtful consideration to the submissions made by the learned counsel for the petitioner and having examined the relevant papers, at this stage of the proceedings, this Court does not feel persuaded to grant indulgence to the petitioner. Prima facie evidence has been suggested in this case that out of the total 9.700 kilograms of opium involved in the crime, 4.700 kilograms of opium was sold by the petitioner. True it is that the contraband in question was recovered on 25.12.2008 and the statement of the petitioner came to be recorded on 05.03.2009 but then, for this reason alone, the entire of the statement cannot be discarded at this stage. It is noticed, inter alia, from the questions and the answers as occurring in the said statement that previously, the petitioner was served with the notice under Section 67 of the NDPS Act on 14.01.2009 and was called upon to appear on 23.01.2009 4 but he did not, allegedly on the ground of some unspecified ailment; then, he was given another notice on 28.01.2009 and was called upon to appear on 14.02.2009 but, again, he did not and in that regard, merely expressed want of knowledge. In the given background, the suggestions as made by the learned counsel that the petitioner had already been categorised or assumed to be an accused before recording of his statement, cannot be accepted at this stage. The value and worth of the statement said to have been made by the petitioner on 05.03.2009, his alleged retraction dated 19.03.2009, and the other requirements of legal evidence would definitely be the matters to be considered by the learned Trial Court at the relevant stage but then, looking to the nature of the crime concerned and the role assigned to the petitioner, from whom the contraband emanated, this Court does not find it a fit case to enlarge him on bail at this stage. So far the aspect of grant of bail to the co-accused Basant Suwalla is concerned, it is noticed from the order dated 05.10.2009 that the submissions on behalf of the said petitioner were taken into consideration by the Court that he was merely driving the vehicle wherein opium was being carried by Radhey Shyam and Banwari Lal who had hired the vehicle; and that he did not permit the co-accused to hire the 5 vehicle with the knowledge that the same was to be used for carrying opium. So far the other accused Shanker is concerned, the submissions were noticed in the order dated 01.12.2009 that the opium was recovered from Radhey Shyam and Banwari Lal, that the purchaser of the opium had been Khinya Ram, and Commission Agent had been Kishan; and that the said accused Shanker was allegedly present at the time the deal was struck between Khinya Ram and Kishan without direct involvement in the transaction. The Court also considered the position that the said accused Shanker was neither the purchaser nor the seller of the opium. Obviously, for the different roles as assigned to the said accused persons, the bail orders in their relation do not enure to the benefit of the present petitioner. Accordingly, the bail application moved on behalf of the petitioner Bheru Lal s/o Chamna Lal under Section 439 Cr.P.C. stands rejected. (DINESH MAHESHWARI),J. s.soni