KALU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present bail applications have been filed under Section 439 Cr.P.C. The petitioners have been arrested in connection with FIR No. 04/2020 registered at Police Station Bhinai, District Ajmer for the offence under Section 8,15, 18 of NDPS Act (for brevity, "the Act of 1985").

(2.) Learned counsel for the petitioners, drawing attention of this Court towards the vehicle tracking record dated 04.01.2020 of the vehicle no. RJ01 UA 6979 and reply by the SHO Police Station Bhinai, District Ajmer dated 13.07.2021 furnished under the Right to Information Act, 2005 (for brevity - 'the Act of 2005') wherein it was stated that on 04.01.2020, Police Station Bhinai was having Government vehicle Bolero RJ01 UA 6979, submitted that the genesis of the prosecution story, as revealed from the FIR that the police party left the Police Station at about 12.20 PM on 04.01.2020 in Government vehicle, stands falsified inasmuch as the vehicle tracking record discloses crossing of the toll plaza in between Ajmer and Bhilwara at about 12.06 o'clock. He submitted that two different seizure memos have been prepared by the prosecution for seizing the same articles and the order in which the accused persons have put their signature(s)/thumb impression differs in both the seizure memos establishing that the investigation was not conducted properly. Drawing attention of this Court towards notice given under Section 42(2) of the Act of 1985, he submitted that two notices were prepared at the same time; one in hand writing; whereas, another is computer printed for which there is no explanation. Learned counsel submitted that there has been violation of the mandatory provisions contained in Section 100 Cr.P.C. inasmuch as there was absence of independent witnesses at the time of search and seizure. He further submitted that the search memo does not reveal name of the persons who refused to be the witness. Learned counsel submitted that the seizure memo discloses seizure of poppy seeds as well as poppy straws; but, their separate weight is not reflected. Drawing attention of this Court towards the definition of poppy straw under the Act of 1985, learned counsel submitted that poppy seeds are excluded from it and in absence of their separate weight having been mentioned, it cannot be held that contraband allegedly recovered from the petitioners' possession is of commercial quantity. Learned counsel submitted that there has been violation of mandatory provisions contained in Section 50 inasmuch search and seizure, which ought to be conducted in the presence of a Gazetted Officer, was conducted by an Officer of the Assistant Sub-Inspector rank, who was not a Gazetted Officer. In support of his submissions, learned counsel relied upon judgments of the Hon'ble Apex Court in case of Arif Khan @ Agha Khan v. State of Uttarakhand: 2018 Cr.L.R. (SC) 464 and a co-ordinate Bench judgment of this Court dated 24.06.2021 in S.B. Criminal Miscellaneous Bail Application No. 6775/2021: Kalu Ram v. State of Rajasthan.

(3.) Qua limitation contained under Section 37 of the Act of 1985, learned counsel for the petitioners, relying upon the judgment of the Hon'ble Apex Court of India in case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr.: 2005(5) SRJ 134, submitted that this Court should not insist upon enlarging the petitioners on bail only upon satisfaction of twin conditions laid down therein. He submitted that the petitioners are labourers at the dhaba of co-accused Ranjeet Singh and they have falsely been implicated in this case as they were unaware of the nature of contraband as is apparent from the seizure memo. Learned counsel submitted that the petitioners are in custody since 04.01.2020 and they may be extended benefit of bail.