State Of Rajasthan, Through Its Pp vs For Respondent(s)

: Mr. Vinay Pal Yadav For Respondent(s) : Mr. Shree Ram Dhakar, PP HON'BLE MR. JUSTICE PRAVEER BHATNAGAR 05/08/2025 Order The instant third bail application has been filed under Section 483 BNSS on behalf of accused-petitioner. The petitioner has been arrested in connection with FIR No. 451/2023 registered at Police Station Vijaynagar, District Beawar for the offence(s) under Sections 8/15 and 8/29 of the NDPS Act. Learned counsel for the petitioner submits that the accused- petitioner has falsely been implicated in this case. It is argued that compliance of Section 42 of NDPS Act was not made. The independent witnesses have been declared hostile and did not support the prosecution story. Apart from the independent witnesses, two stock witnesses were also declared hostile and not supported the prosecution story. It is also contended that as per the prosecution story the contraband articles were being transported in a Scorpio car alongwith a alto car and no [2025:RJ-JP:29958] (2 of 5) [CRLMB-9233/2025] investigation was made regarding carrying contraband articles in Scorpio car. It is also contended that petitioner has been falsely implicated under Section 8/15 of the NDPS Act, no recovery was effected at the instance of the present petitioner, the recovery of contraband article was effected from open field and the petitioner was not the owner of the said field. Learned counsel for the petitioner placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Omprakash Repswal Vs. State of Chhattisgarh, decided on 07.04.2025, passed in Criminal Appeal No. 1831/2025, granted bail under NDPS Act on the basis of turning hostile of independent witnesses. Similarly, in the case of Makhan Singh Vs. State of Haryana 2016(1) SCC Crime 96, at para-16 the Hon'ble Apex Court held that when the independent witnesses have not supported the prosecution case and the recovery of contraband articles has not been satisfactorily proved, the conviction of the appellant under Section 15 of the NDPS Act cannot be sustained. The co-ordinate Bench of this court in Devendra Singh S/o Sucha Singh Vs. State of Rajasthan, decided on 30.06.2025 passed in SB Criminal Misc. Second Bail Application No. 8058/2025, allowed the bail application of accused on ground of long incarceration and turning hostile of the independent witnesses, similarly the co-ordinate Bench of this court in the case of Kamlesh Kumar Vs. Union of India decided on

30.10.2023, passed in SB Criminal Misc. 4th Bail Application No. 11544/2023, enlarged the petitioner on bail on the ground of non- compliance of Section 42 of the NDPS Act and long incarceration. The Hon'ble Apex Court in the case of Devendra Kumar Mishra @ bade Guru Vs. State of Madhya Pradesh passed in [2025:RJ-JP:29958] (3 of 5) [CRLMB-9233/2025] Special Leave to Appeal (Crl.) No. 14639/2023, enlarged the petitioner on bail under NDPS Act on the ground of long incarceration and non examination of material witnesses during trial. Similar view was taken in Niteshbhai Jerambhai Dhoriya Vs. State of Gujarat passed in Special Leave to Appeal (Crl.) No. 1741/2025, decided on 17.03.2025 and later on, reiterated in the case of Azizur SK @ Abdul Ajij Vs. The State of West Bengal & Anr. in Special Leave to Appeal (Crl.) No. 1280/2025 decided on

21.03.2025. Therefore, on the above grounds the third bail application of the accused-petitioner may be allowed. Learned Public Prosecutor vehementally opposed the bail application and contended that provisions of Section 37 of the NDPS Act are mandatory and mere delay in trial and long incarceration itself cannot be a ground to enlarge the petitioner on bail. The petitioner is unable to satisfy the court that the petitioner was not carrying the contraband articles and he was not found in possession with the contraband articles. Prima facie at this stage, it cannot be concluded that the petitioner was neither carrying nor found in possession of contraband articles. It is also contended that whether the Section 42 or 43 of the NDPS Act will apply is a question of trial and to be seen by trial court. At this juncture, it cannot be said that mandatory provisions of Section 42 has not been complied with. It is also contended that merely turning hostile of witnesses cannot be a ground to enlarge the petitioner on bail and to disbelieve the testimony of other police officials, other witnesses relating to recovery of the contraband articles are yet to be examined, therefore considering the above facts, there is [2025:RJ-JP:29958] (4 of 5) [CRLMB-9233/2025] no ground to allow the petitioner's bail application and same is deserves to be dismissed. Heard and perused the material available on the record. The prosecution story in brief states that on 18.12.2023 SHO Police Station Vijay Nagar, Sh. Dinesh Kumar received telephonic information regarding accident of a scorpio car and it is stated that Sh. Dinesh Kumar alongwith other police officials reached at the place of accident at 12.30PM and came to know that in the said scorpio car poppystraw were being transported in gunny-bags and it was also revealed that the gunny-bags were being carried in a tractor trolly belonging to Dharmichand and lateron he concealed the poppystraw in a filed and at the instance of Chothmal @ Dharmichand the said gunny-bags were recovered from a open field. Police after investigation submitted charge- sheet against the petitioner under Section 8/15 read with Section 8/29 of NDPS Act. Whether the compliance of Section 42 of NDPS Act was necessary or not is a disputed question of fact and it would be too early to opine anything about the fact that whether it has been complied with or not. Similarly, at this juncture this court cannot find any cogent reason to disbelieve the testimony of seizure Officer only on the grounds that the other independent witnesses have turned hostile, this is also a question of fact which needs to be scrutinized by the trial court, before parting the judgment. Hon'ble Apex Court in the case of Narcotics Control Bureau vs. Mohit Aggarwal 2022 Livelaw (SC) 613 categorically held that the provisions of Section 37 of the NDPS Act are mandatory and mere long incarceration itself cannot be a ground to dilute the conditions enshrined under Section 37 of the NDPS [2025:RJ-JP:29958] (5 of 5) [CRLMB-9233/2025] Act. Therefore, considering the above facts, this court is not inclined to enlarge the accused-petitioner on bail. Accordingly, the instant third bail application filed by the accused-petitioner is hereby dismissed. ashu /59 (PRAVEER BHATNAGAR),J