PARSARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused-petitioner has made second attempt for seeking bail upon his arrest in furtherance of investigation into FIR No. 326 of 2016, registered at Police Station Bilara, District Jodhpur for offence under Sections 8 of 15, 8 of 25 and 29 of the NDPS Act.

(2.) First bail application on behalf of petitioner bearing No. 6546 of 2017 was dismissed on 3rd of August, 2017.

(3.) Arguing on the second bail application, it is submitted by learned counsel that after rejection of first bail application there is substantial change in the circumstances inasmuch as upon completion of investigation charge-sheet in the matter has been filed. Learned counsel has further contended that there is no recovery of contraband from the conscious possession of petitioner and in fact contraband (poppy straw) weighing 310 Kg. was recovered from co-accused Baldev @ Guddu and Rooparam. It is also argued by learned counsel that the vehicle carrying contraband was registered in the name of petitioner, therefore, he is sought to be implicated in the matter. While referring to the statement of Seizure Officer, P.W.3 Baldev Ram, recorded during trial, it is submitted by learned counsel that when he carried out the search, he was not posted as SHO at the concerned Police Station, and therefore, the entire search and seizure proceedings are prima facie vitiated. Learned counsel has further submitted that a bare perusal of the statement of P.W.3 makes it abundantly clear that on the crucial day when search was carried out, SHO of the concerned Police Station was Ghewar Singh. In support of his contentions, learned counsel has placed reliance of Gopal Gadari and ors. v. State of Rajasthan [2017 (3) Cr.L.R. (Raj.) 1581] , wherein a Coordiante Bench has considered Notification dated 16th of October, 1986, issued by State Govt. in exercise of powers conferred under Section 42 of the NDPS Act. Learned counsel has also argued that motbir Tejaram (P.W.2) has not supported the prosecution case by turning hostile. With all these arguments, learned counsel submits that rigor of Section 37 of the NDPS Act cannot be pressed into service while considering bail application of the petitioner.