NARCOTICS CONTROL BUREAU Vs. RAJESH KUMAR

JUDGEMENT

(1.) Heard learned Special Public Prosecutor for Narcotics Control Bureau and learned counsel for the respondent-accused.

(2.) The instant application for cancellation of bail has been preferred by the Narcotics Control Bureau, Jodhpur for assailing the order dtd. 8/2/2019 passed by the Special Judge, NDPS Act Cases, Jodhpur in Criminal Misc. Application No.69/2019 where by, the bail application of the respondent-accused under Sec. 439 Cr.P.C. was accepted.

(3.) Learned Special Public Prosecutor Shri M.P. Pareek submits that ex-facie the order impugned is illegal on the face of the record because contraband opium which was recovered from the three accused persons namely Avinash Kumar and Yogendra Kumar weighed 5 Kg 750 gins., which was well above the commercial quantity. All the three accused persons are residents of Bihar. They failed to offer any explanation for being found in possession of the contraband opium. He points out that two bail applications preferred by the accused Yogendra Kumar and five bail applications preferred by the accused Avinash Kumar have been rejected by this Court. He drew the Court's attention to the Supreme Court judgment in the case of State of Kerala Etc. Vs. Rajesh Etc. reported in AIR 2020 SC 721 wherein the Hon'ble Apex Court considered the concept of bail under the NDPS Act and held that before granting bail to the accused for an offence under the NDPS Act, where the recovered quantity is commercial, it is essential for the Court seized of the matter to record a satisfaction in terms of Sec. 37 of the NDPS Act. He urges that the impugned order dtd. 8/2/2019, does not indicate any such satisfaction recorded by the trial Court and hence, the same cannot be sustained.