State Of Rajasthan, Through PP vs For Respondent(s)

: Mr. Rajveer Singh Gurjar For Respondent(s) : Mr. S.R. Dhakar, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN 01/04/2025 Order

1. This second bail application under Section 483 of BNSS has been filed on behalf of the petitioners, who have been arrested in connection with FIR No.76/2024 PS Kamkhera, Jhalawar for offence under Section 8/15 of the NDPS Act. After completion of investigation, police has filed charge sheet for offences under Sections 8/15, 19 and 29 of the NDPS Act in the court concerned.

2. Vide order dated 07.01.2025, First bail application (No.16071/2024) filed on behalf of the accused petitioners was dismissed as withdrawn with liberty to renew the prayer for bail [2025:RJ-JP:14774] (2 of 5) [CRLMB-4419/2025] after recording testimony of the Seizure Officer. Now, he has been examined at trial, hence, this second bail application.

3. Learned counsel for the accused petitioners submits that the petitioners have falsely been implicated in this case. He submits that as per prosecution case, contraband opium dodachura kept in five plastic bags (weighing 97.26 Kgs) were recovered from the possession of the petitioners. Each bag was separately weighed with the help of electronic weighing machine and as per which, net weights of each bag were 17.470 Kgs, 16.880 Kgs, 31.440 Kgs,

21.150 Kgs and 10.320 Kgs. Learned counsel contends that as a matter of fact, opium is cultivated by the families of the petitioners on the strength of requisite license and permission of the Government. The alleged recovered contraband was not procured by the petitioner from any other person or source. The alleged recovered contraband is remaining of the cultivated contraband, after supplying the required quantity to the concerned Department under license. It is alleged against the petitioners that they were intended to supply the same to some other person. Learned counsel further contends that in none of the bag, contraband opium doda chura was in commercial quantity. Counsel submits that it is not appropriate to club the entire quantity to bring the quantity of contraband in the category of commercial quantity. Counsel submit that this issue was considered by co-ordinate Bench of this Court in the case of Akhlak @ Vilasan & Anr. Vs. State of Rajasthan reported in 2010(2) Cr.L.R. (Raj.) 1542 wherein it was held that if two persons are carrying separate quantity then same cannot be clubbed. Counsel submit that it appears from testimony of Seizure [2025:RJ-JP:14774] (3 of 5) [CRLMB-4419/2025] Officer that separate recovery was made from each accused and all were found at public place. Relying upon the judgment passed by Hon’ble Apex Court in case of Mallikarjun Vs. The State of Karnataka arising out of Special Leave to Appeal (Crl.) No(s).3341/2023 wherein in identical circumstances, benefit of bail was granted to the accused by considering the arguments of the counsel and it was observed that “since it is a case of two accused carrying two separate bags containing different quantity of contraband, clubbing of the total contraband in the two bags was not at all justified as that would bring the quantity of contraband to commercial quantity category and it will be prejudicial to the accused. Moreover, if individual bags are taken into account, the contraband would be below the commercial quantity”. It is also contended that recovery was allegedly effected on 02.06.2024 while inventory was prepared on 07.08.2024. After two months thereafter, on 09.10.2024, samples drawn in presence of the jurisdictional magistrate, were sent to FSL. There is no reasonable explanation for this delay in sending the samples to the FSL. The petitioners do not have any criminal antecedents. They are in custody since 02.06.2024 and further custody of the petitioners would not serve any fruitful purpose whereas trial will take long time in its conclusion.

4. Per contra, learned Public Prosecutor has opposed the submissions made by the counsel for the petitioners. He submits the looking to the huge quantity of the contraband recovered from the possession of the petitioners, they do not deserve indulgence of bail.

5. I have considered the contentions. [2025:RJ-JP:14774] (4 of 5) [CRLMB-4419/2025]

6. Having regard to the totality of the facts and circumstances f the case; considering the arguments advanced by learned counsel for the petitioners, material made available on record in the form of charge-sheet including testimony of Seizure Officer so also considering the observations made by co-ordinate Bench of this Court in Akhlak @ Vilasan & Anr. (Supra) and Mallikarjun; absence of criminal antecedents against the petitioners of similar nature as well as looking to the custody period, but without commenting anything on the merits/demerits of the case, I deem it proper to allow this second bail application.

7. This second bail application is accordingly allowed and it is directed that accused-petitioners (1) Jagdish S/o Shri Kanhaiya Lal (2) Mangilal S/o Shri Devi Shankar (3) Omprakash S/o Shri Mannalal and (4) Kanhaiya Lal S/o Shri Mannalal shall be released on bail provided each of them furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) together with two sureties in the sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) each to the satisfaction of the learned Trial Court with the stipulation that each of themshall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.

8. It is made clear that the accused-petitioners shall not involve in any other offence(s) during currency of the bail and they shall mark their presence in first week of every month in the concerned police station, till trial is concluded. [2025:RJ-JP:14774] (5 of 5) [CRLMB-4419/2025]

9. Concerned SHO is directed to maintain a register recording the attendance of the petitioners, as directed above. In case the petitioners fail to mark their presence in the concerned police station, as directed above, the concerned SHO is directed to immediately report the matter to the concerned Court in this regard.

10. If breach of any of these conditions is reported or come to the notice of the Court, the same shall alone be a reason for the trial Court to cancel the bail granted to them by this Court.

11. The observation made herein above is only for decision of these instant bail applications and would not have any impact on the trial of the case in any manner. GAUTAM JAIN /733 (ANIL KUMAR UPMAN),J