Rajasthan High Court - Jodhpur

Bhanva Ram vs State Of Rajasthan (2023:Rj-Jd:41620) on 28 November, 2023

Author:
Rajendra Prakash Soni

Bench:
Rajendra Prakash Soni

[2023:RJ-JD:41620]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. 2nd Bail Application No. 11462/2023

Bhanva Ram S/o Shri Gobra Ram, Aged About 38 Years, R/o
Nawapura, Bagora P.s. Dist. Jalore
(Lodged In Sub Jail, Bhinmal)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent

For Petitioner(s) : Mr. Achla Ram
For Respondent(s) : Mr. Mool Singh Bhati, PP

HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

Order

28/11/2023

1. The petitioner, who is in custody in connection with the F.I.R.

No.25/2022 of Police Station Bagora, District Jalore for the alleged

commission of offences punishable under
Sections 8
/
&
/
of

NDPS Act, 1985 seeks grant of bail in terms of
Section 439
of the

Cr.P.C., 1973.

2. After rejection of the first bail application, statements of

Seizure Officer - Chhatar Singh Deora (PW-1) and Investigation

Officer - Laxman Singh (PW-2) have been recorded during the

trial.

3. The accusation against the petitioner is that on the basis of a

source information, on 22.02.2022 a raid was conducted in the

premises of the petitioner. The person standing outside of the

house introduced himself as Bhanva Ram but none of his family

members were found there. After due formalities, under a pile of

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net, which is used to cover plants in the field, in a corner of

Dhaliya (open sitting area) 6 kg 110 gms of opium was seized in a

transparent plastic bag.

4. Learned counsel for the petitioner drew the attention of the

Court towards the cross-examinations conducted from Seizure

Officer - Chhatar Singh Deora (PW-1) and Investigation Officer -

Laxman Singh (PW-2), wherein both of them admitted that no

evidence whatsoever was collected regarding the title or

ownership or actual physical possession of Dhaliya in question

during the investigation. Even no documentary evidence was

collected in respect of the land/field whereupon Dhaliya was

stated to be situated. It is argued that at the time of search and

seizure, the petitioner was found standing on the public road

which was a public way and he never had exclusive ownership or

possession on the Dhaliya in question.

5. It is further argued that neither the petitioner nor any of his

family member was found present in that Dhaliya. Petitioner has

been implicated in the present case, on the basis of his

confessional statement only made while in custody, which is not

admissible according to law. According to him, on the basis of

such confessional statement and the recovery made from an open

place, liberty of petitioner cannot be curtailed indefinitely;

petitioner is ready to abide by any condition imposed by the Court

in case he is released on bail.

6. On the opposite side, learned Public Prosecutor has opposed

the grant of bail to the petitioner and argued that petitioner is

involved in drug peddling; that recovered contraband weighes

above commercial quantity as per the schedule appended to the

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Act and the Bar as contained in
Section 37
of the NDPS Act is

attracted. He, thus, craves rejection of the petitioner's bail

application.

7. I have been addressed by the counsel for the parties at

length and also have been taken through the record. I have

considered the respective submissions.

8. The Seizure Officer - Chhatar Singh Deora (PW-1) in his

deposition during the trial has deposed as under :-

"It is correct to say that neither I nor any member of
the police party knew petitioner Bhanva Ram earlier
.... We had never been to the recovery Dhaliya
earlier. It is correct to say that we did not recover
any opium from the residential house of Bhanva Ram
..... It is correct to say that the place wherefrom the
opium was recovered was an open place; there was
no door on it and any other person could easily
come in and go out from there. Any person could
take away and keep in any item there .... It is
correct to say that Dhaliya was located adjacent to
the public road .... It is also correct to say that
Dhaliya was built in a field ..... It is correct to say
that there was a distance of 60 feet between the
residential house situated in the field and the
Dhaliya in question .... The field was also located
adjacent to the public road ..... It is correct to say
that at the time of recovery, the petitioner Bhanva
Ram was found standing on the public road ....
vehicle ply on that road .... no evidence/information
in respect of the khasra numbers of the field was
collected whereupon the Dhaliya was situated. He
did not know that how many khatedars/co-tenants
had their share in the field and whether the field had
been divided amongst the khatedars/co-tenants or
not ..... It is correct to say that I did not get any

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information about the Patwari, Sarpanch, Ward
Panch or any neighbour about the possession and
ownership of field and Dhaliya in question ----. No
documents were found at the place of search and
seizure which revealed ownership or possession of
the Dhaliya and land no member of family of the
petitioner Bhanva Ram was found living there."

9. The Investigation Officer - Laxman Singh (PW-2) has also

deposed to the same nature and effect. In view of above

deposition of Investigating Officer and Seizure Officer recorded

during the trial, prima facie there appears to be a serious doubt in

respect of ownership and possession of the place in question

wherefrom the seizure was effected.

10. Above deposition prima facie clarifies that there are certain

grey areas in the case against the petitioner as regard the

exclusive ownership and possession of place of recovery; trial of

the case is likely to consume sufficient time and no useful purpose

would be served by keeping the petitioner in detention for an

indefinite period. The petitioner has been suffering incarceration

for 21 months and as per the bail rejection application order,

petitioner does not have any criminal antecedents.

11. In view of the matter, I am of the opinion that the conditions

of
Section 37
of the Act are duly satisfied. Hence, the petitioner

deserves indulgence of bail during trial of the present case.

12. Consequently, the second bail application is allowed. It is

ordered that the accused-petitioner Bhanva Ram S/o Shri

Gobra Ram in F.I.R. No.25/2022 of Police Station Bagora, District

Jalore shall be released on bail; provided he furnishes a personal

bond of Rs. 1,00,000/- and two surety bonds of Rs. 50,000/- each

to the satisfaction of the learned trial court with the stipulation to

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appear before that Court on all dates of hearing and as and when

called upon to do so and if not required by Jail Authorities in any

other case. This order is subject to the condition that accused,

within 7 days of his release and sureties, on the day of furnishing

bail, will also furnish details of his all bank accounts, with bank

and branch name, in shape of an affidavit, and submit legible copy

of their Aadhar cards as well as front page of Bank pass book, for

smooth recovery of penalty amount, if there arise a need for

recovery of penalty under
Section 446
Cr.P.C in future.

(RAJENDRA PRAKASH SONI),J
37-Payal/-

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