KALU RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant 2nd bail application has been filed under Sec. 439 Cr.P.C. on behalf of the petitioner Kalu Ram @ Karu Lal S/o Jagdish @ Jagdish Chandra Anajana, who is in custody in relation to F.I.R. No.205/2021, Police Station Sadar, Nimbahera District Chittorgarh for the offences under Ss. 8/15 & 29 of the NDPS Act.

(2.) Learned counsel for the petitioner submits that a Coordinate Bench of this Court has granted bail to one of the co-accused Ghanshyam (S.B. Criminal Misc. Bail Application No.488/2021 decided on 13/2/2023) and the case of the present petitioner is on better footing than the co-accused Ghanshyam who has already enlarged on bail. He submits that the contraband (poppy straw) weighing 512.5 kg was recovered at the instance of Pukhraj and the petitioner is nowhere connected with this recovery. He further submits that on the basis of similarity of name, as disclosed by one of the co-accused, he was implicated but this evidence is not admissible as recorded under Sec. 27 of the Evidence Act. He further submits that the mandatory provisions under the NDPS Act were not followed at the time of recovery and investigation. He further submits that the statement of P.W.1 Tulsi Ram as recorded before the trial Court indicates that no notice was ever given to the petitioner and no statement under Sec. 67 of the NDPS Act was recorded with regard to the present petitioner. He further submits that present petitioner has been arrested on the basis of suspicion whereas, it is admitted by P.W.1 Tulsi Ram that Kalu Ram and Karu Lal are two different individuals.

(3.) He further submits that in the cases where no recovery has been effected and no identification parade has been conducted then accused were released on bail by this Court. He further submits that statement of Pukhraj under Sec. 27 of the Evidence Act was recorded by Shri Harinder Singh Sodha, SHO. In which, he named accused Kalu Lal and Ghanshyam whereas the present petitioner is Karu Lal and his statement was recorded by the police. He further submits that the Election Voter ID Card, recovered from the present petitioner further indicates that the name of present petitioner is Karu Lal and not Kalu Lal. He further submits that the information recorded under Sec. 27 of the Evidence Act is not admissible against the present petitioner unless recovery of contraband is effected from the conscious possession of the accused. In pursuant to the recovery memo prepared by the Investigating Officer he further submits that P.W.1 in his cross examination has admitted that Kalu Ram and Karu Lal are different individuals, therefore, where no link is established then the present petitioner who is in custody may be released on bail. In support of his contentions learned counsel has placed reliance upon the orders/judgments delivered passed by the Coordinate Bench of this Case Court in the case of Hathila Saddique Vs. State Of Rajasthan passed in S.B. Crl. Misc. Bail Application No.2540/2022 decided on 20/12/2022. He further placed reliance on the judgment in the matter of Surinder Kumar Khanna Vs. Intelligence Officer, Revenue Intelligence reported in 2018 (3) CCSC 1404 (SC) 1404, Tofan Singh Vs. State of Tamil Nadu reported in AIR 2008 SC 1044, 2020 (1) CCSC 257 (SC) and Bharat Chaudhary Vs. Union Of India reported in 2021 SCC Online SC 1235 wherein law regarding second statement under Sec. 67 of the NDPS Act and under Sec. 27 of the Evidence Act have been laid down by the Hon'ble Supreme Court.