PHARSA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant criminal misc. bail application under Sec. 439 of the Code of Criminal Procedure, 1973 (for short 'the Code' hereinafter) has been filed by the accused-petitioner in FIR No. 12 of 2005, Police Station, Dangiawas, Distt. Jodhpur.

(2.) Facts and circumstances giving rise to the instant bail application are that on 18.1.2005, Circle Officer, Biiara directed SHO, Police Station, Dangiavas for 'Nakabandi' at Dangiawas informing him that a jeep with a great speed is coming from Biiara side, which is being chased by the Circle Officer and other police officials as the police had secret information that in the said jeep, three persons are carrying opium. It is alleged that by seeing the Police 'Nakabandi', the jeep driver alleged to have been carrying opium suddenly turned the jeep on a way to village Dangiawas-Pithawas. The said jeep was chased by the Circle Officer, Biiara alongwith police party, SHO, Police Station Biiara alongwith poiice party in a jeep and SHO, Police Station, Dangiawas alongwith police party. It appears that near to hamlet (Dhani) of one Bhiyanram Bishnoi, who is grand-father of present petitioner, a person alighted from the jeep having a bag and started running. He was surrounded by the police party and caught with bag containing opium weighing 11.900 kgs. (opium milk). The secret information received from Circle Officer, Biiara was reduced to writing. The petitioner was served with a notice under Sec. 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act' hereinafter) wherein the petitioner consented that he is prepared to be searched himself and the bag, which he had. The consent was reduced to writing and signed by the petitioner in presence of two Motribs. The petitioner and the bag which he had were searched in presence of two Mothers. The bag was found containing the opium milk weighing 11.900 kgs., samples were taken and sealed. The petitioner failed to show permit for possession of the said opium and therefore, he was arrested. The contrabrand opium, alleged to have been recovered from the petitioner is commercial quantity. The usual investigation was carried out including preparation of site map, site inspection, the spot sealing and the statements of the witnesses under Sec. 161 of the Code viz. Raji Ram, Madho Singh, Chen Singh, Balwat Singh, Arshad Ali, Dy. S.R Sohan Lai, Rampal, Hariram, Mohd. Noor, Ramkishore, Mangilal, Jagdish etc. recorded by the police. Almost all the witnesses noticed above stated that it was the present petitioner, who alighted from the jeep having a bag, the jeep was carrying the contraband opium. During investigation, it appears that father of the petitioner moved to the State Government stating therein that his son, the present petitioner is innocent and plea of alibi was taken that on the relevant date, he was busy in election meeting of one Thana Ram, who alleged to have contested the election for Sarpanch. If the request of the father of the petitioner, the investigation was changed. It appears that the subsequent investigation was carried out by one Ram Niwas, Circle Inspector under the supervision of Mahendra Singh Choudhary, Additional S.R CID, CB. The statements of the witnesses noticed above were again recorded. Apart from the statements of these witnesses, the police also recorded the statements of some of the villagers in support of the plea of alibi.

(3.) I have carefully gone through the statements earlier recorded by the police and subsequently by police (CID, CB). So far as the witnesses to the occurrence are concerned, they are consistent to the case as setup originally by the police and almost all those witnesses categorically stated that on receiving a secret information that a jeep occupied by three persons is carrying opium, which was chased by the Circle Officer of rank of Dy.S.R and other police officials as also the SHO, Police Station, Biiara, however since the said jeep was at a great speed and it was plying on the road from Biiara to Jodhpur via Dangiawas and, therefore, Circle Officer, Biiara informed the SHO, Dangiawas to have the 'Nakabandi'. SHO, dangiawas was well in found that a jeep coming from Biiara at a great speed in carrying opium. That information was reduced to writing and with no lost of time, the 'Nakabandi' was held and seeing the 'Nakabandi' the driver of the jeep suddenly took the jeep on the way to village Dangiawas. The jeep was continuously being chased by the Circle Officer and its party and SHO, Biiara and its party. The SHO, Dangiawas too chased the jeep when it suddenly turned by seeing the police 'Nakabandi'. After some distance, the jeep stopped for a while near to 'Dhani' of Bhiyanram Bishnoi, the grand-father of present petitioner, and one person alighted from the jeep having a bag and thereafter, he started running. He was surrounded by the police and caught with the bag containing opium weighing 11.900 kgs. opium milk. This evidence prima facie shows that it was the petitioner, who was found in possession of contrabrand opium noticed above. Some of the villagers, who may be interested in petitioner and his relatives, if at all say that the petitioner was busy in serving the tea to the public in a meeting held for the election of Sarpanch, even on careful perusal of the statements of the various witnesses, they say that he was there upto 4.00 RM. The occurrence is between 4.45 RM. to 5.00 RM. Some of the witnesses in the subsequent investigation shown the occurrence of at about 3-3.30 RM., obviously the plea of alibi taken by the petitioner is that upto 4.00 PM., the petitioner was busy in serving the tea but at this stage, the entire official record of the police right from receiving the secret information, wireless messages QST etc. cannot be brushed aside only because the witnesses interested in the petitioner say that the occurrence is of at 3-3.30 RM. whereas the very information canvassed to SHO, Police Station, Dangiawas by Circle Officer, Biiara was at 4.30 P.M. and thereafter the "Nakabandi' was held. The occurrence is alleged to have taken place nearly between 4.45 to 5.00 RM. Thereafter on investigation being changed at the instance of the petitioner, Circle Inspector Ram Niwas and Additional Superintendent of Police, Mahendra Singh Choudhary (CID-CB) recorded the statements of various persons, who are close relatives and directly interested in the petitioner in order to set up the plea of alibi.