Interim Order 3

Order Details: COPY OF ORDER
Pdf Text: IA-1-2023
State V. Raj Kishore
FIR No. 174/2022
PS Crime Branch
Under Section 15/25 NDPS Act
23.02.2023
Pr: Sh. J.S Malik, Ld. Addl. Substitute P.P for the State.
Sh. Ankit Rai, Ld. Counsel for the applicant / accused
I.O with case file.
Arguments heard on the second application under
Section 439 Cr.P.C for grant of regular bail to accused-applicant.
It is pleaded on behalf of the applicant that the
accused/applicant has been falsely implicated in the present case
and has been lying in Judicial Custody since 17.08.2022.It is
submitted that earlier bail application of the accused/applicant
was dismissed vide order date 15.09.2022 by wrongly placing
reliance upon the judgment of Hon’ble SC in Union of India
through NCB Lucknow V. Nawaz Khan, Crl. Appeal No.
1043/2021 which does not apply herein .
It is argued that the investigating authority has not
complied with the mandatory provisions of Section 50 of the
NDPS Act and the alleged recovery has not been effected in the
presence of any Gazetted Officer or Magistrate. In this regard,
reliance is placed upon case titled Vijaysinh Chandubha Jadeja
V. State of Gujarat Crl. Appeal No. 943/2005 dated
29.10.2010 passed by Hon'ble Supreme Court. It is further
pleaded that as such nothing has been recovered from the
possession of the accused/applicant and the alleged recovery is
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planted upon the accused/applicant. It is further pleaded on
behalf of the accused/applicant that the investigation qua the
accused/applicant in the matter has already been completed and
he is no longer required for purpose of investigation. In support
of his arguments, Ld. Counsel for the accused/applicant has
placed reliance on the following judgments:
(I) Dataram Singh V. State of U.P & Anr (2018) 3 SCC 22
(II) Sanjay Chandra V. CBI, Criminal Appeal No. 2178 to
2182 of 2011
(III) Arnab Manojraja Goswami V. State of Maharashtra &
Ors (2020) SCC OnLine SC 964.
Per contra, Ld. Addl. P.P for the State has vehemently
opposed the bail application stating that as per the reply filed by
the IO, on the intervening night of 16-17/08/2022, on a prior
information regarding supply of poppy straw, a trap was laid and
one tempo Tata Ace DL 1LW 4392 was intercepted which was
loaded with 8 plastic bags containing poppy straw and accused
Raj Kishore (accused/applicant) and Rajesh Rajpit were arrested.
Each bag was weighing around 19.7 KG (Total 154.6 KG poppy
straw ) on the basis of which FIR was got registered. On the
interrogation of accused /applicant, one accused Sanjay was
arrested with poppy straw weighing around 356.6 KG. Source of
the recovered contraband was disclosed to be one Nirpal who is
still absconding and coercive process has been got issued qua
him. The vehicle Tata Ace DL 1LW 4392 was also found
registered in the name of accused/applicant herein.
It is further submitted by Ld. Addl. PP for the State that the
accused/applicant is involved in recovery of commercial quantity
of contraband and hence, rigors of Section 37 of NDPS Act are
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attracted in the present case. It is further submitted that there is
no change of circumstances since the dismissal of previous bail
application dated 15.09.2022.
Heard and considered.
Since the dismissal of previous bail application, the
chargesheet in the matter has been filed.
The only fresh ground taken in the present second bail
application is the non-compliance of mandatory provisions of
Section 50 of the NDPS Act though it is not elaborated as to how
the said non-compliance is there. It is simplicitor claimed on
behalf of the accused/applicant that the alleged recovery has not
been effected in the presence of any Gazetted Officer or
Magistrate.
As per the case of prosecution, the allegations against the
accused/applicant are that he was found travelling by tempo Tata
Ace DL 1LW 4392 alongwith co-accused Rajesh Rajpit and the
recovery of contraband has been effected from the said Tata Ace
Tempo only . It is not from the personal search of the
accused/applicant. Hence, there is no issue of compliance of
Section 50 of NDPS Act for conducting search of aforesaid Tata
Ace Tempo.
It is not disputed that the amount of quantity recovered
from the accused/applicant falls under the category of
commercial quantity and bar under 37 of the NDPS Act is
applicable in the present. Therefore, the onus is upon the
applicant to satisfy the twin conditions imposed as mandated in
judgment viz; Union of India through NCB Lucknow V.
Nawaz Khan, Crl. Appeal No. 1043/2021. Thus, the
accused/applicant has failed to overcome the bar prescribed
under Section 37 of NDPS Act which dis-entitle him for the bail.
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Thus, there is no change of circumstances since the dismissal of
previous bail application dated 15.09.2022.
The judgments relied upon Ld. Counsel for the
accused/applicant are not applicable to the present case being
distinguishable on facts.
In view of the above facts and circumstances of the case, I
am of the considered view that no ground is made out for
grant of bail to accused/applicant. Therefore, the application
moved on behalf of the accused/applicant stands dismissed.
A copy of this order be sent to the Jail Superintendent
concerned for further communication to the
accused/applicant. Copy of this order be also forwarded to
Superintendent concerned through E-Mail.
(Gagandeep Singh)
ASJ/Spl. Judge (NDPS):
North, Rohini Courts, Delhi
23.02.2023
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