Harikishan vs State Of Rajasthan

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the material available on record.

The petitioner has been arrested in FIR No.101/2017 of Police Station Desuri, District Pali for the offences punishable under Sections 8/18 and 8/15 of NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that after rejection of first bail application of the petitioner by this Court, the statements of Investigating Officer has been recorded as PW-1. Learned counsel for the petitioner has submitted that the Investigating Officer in his statement has clearly stated that the Exhibit-P/3 stamp for agreement to sell was purchased by Durgalal and not by the petitioner. It is also submitted that the Investigating Officer has admitted in his statement that he did not interrogate the stamp vendor as well as the person who had notarized the document. Learned counsel for the petitioner has submitted that taking into consideration the above fact, it is clear that the agreement to sell (Exhibit-P/3), on the basis of which the petitioner has implicated in this case, is not related to the petitioner and on the basis of said document the petitioner cannot be held guilty for the commission of offence punishable under Section 8/25 of NDPS Act. Learned counsel for the petitioner has further submitted that from the statements of motbir PW-2, it is clear that in all the total weight of narcotic contraband poppy straw, recovered from the car said to have been owned by the petitioner, is 53 kgs. including 3 bags in which it was filled and the total weight of those bags was 4 kgs. Learned counsel for the petitioner has submitted that from the above, it is clear that the total weight of the narcotic contraband, exculding bags, said to have been recovered from the petitioner is 49 kgs., which is below commercial quantity.

Learned Public Prosecutor has opposed the bail application and submitted that the Investigating Officer (PW-1) in his statements has clearly stated that the agreement to sell (Exhibit- P/3) was executed by the petitioner and there is no reason to disbelieve the said piece of evidence. Learned Public Prosecutor also submitted that though the recovery witness PW-2 in his statements has stated that the total weight of 3 bags, from which the narcotic contraband was recovered, was 4 kgs. but from the perusal of the recovery memo, it is clear that at the time of recovery of narcotic contraband, the separate weight of the bags had not been taken. Learned Public Prosecutor has submitted that the above facts and circumstances of the case, the petitioner is not entitled to be enlarged on bail at this stage.

Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and gravity of the offence, without expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner.

Accordingly, this criminal misc. second bail application preferred by the petitioner under Section 439 Cr.P.C. is rejected.