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Judgment
Kuldeep Mathur, J
This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.VIII(IO)01/NCB/JZU/2022 registered at Police Station NCB, Jodhpur, for offences under Sections 8/20 and 29 of the NDPS Act.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
Learned counsel for the petitioner submitted that the co-accused Mohammad Sabir (S.B. Criminal Misc. Second Bail Application No.15115/2023) has already been enlarged on bail by this Court vide order dated 02.02.2024. The order dated 02.02.2024 passed by this Court is reproduced herein below for ready reference:
“This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.VIII(IO)01/NCB/JZU/2022 registered at Police Station NCB, District Jodhpur, for offences under Sections 8(c), 20(b)(ii)(C) and 29 of the NDPS Act.
Learned counsel for the petitioner submitted that as per prosecution, on 7.1.2022, the SHO Police Station Kokama, Bihar on seeing suspicious activities of the petitioner and co-accused, interrogated them. The petitioner during interrogation divulged the information that the co-accused persons namely Mohit, Vikas and Fardeen had concealed about 40 kgs. of Ganja on 6.1.2022 in the toilet near sear No.72 of Coach No.7 of train No.15632 (Guwahati Barmer Express). The contraband (Ganja) was to be unloaded by them at Mokama Railway Station. However, before they could unload the contraband, they had been detained by the SHO Police Station Mokama. Learned counsel submitted that as per prosecution, on the basis of the said information of the petitioner, the train No.15632 (Guwahati Barmer Express) was searched, thereupon contraband (Ganja) weighing 42.135 kgs. in 33 packets was recovered and seized.
Learned counsel for the petitioner submitted that the petitioner, who is aged about 21 years, has been falsely implicated in the present case. Learned counsel submitted that the contraband (Ganja) was not recovered from the conscious possession of the petitioner. The petitioner has been implicated in the present case solely on the basis of the disclosure statements made by him before the police officials. Learned counsel further contended that the petitioner was to receive only a sum of Rs.1000/- from the co-accused for the said delivery of the contraband which indicates that he is not the main accused in the alleged crime but was working as a delivery boy of the main accused persons.
Placing reliance on the judgment of Hon’ble the Supreme Court in the case of Toofan Singh vs. State of Tamil Nadu reported in (2021)4 SCC 1, learned counsel submitted that solely on the ground of the disclosure statement, the petitioner cannot be implicated in the present case.
Lastly, learned counsel submitted that the petitioner is in custody since 7.1.2022 and the trial of the case is likely to consume sufficiently long time. On these grounds, he implored the Court to enlarge the petitioner on bail.
Per contra, learned Special Public Prosecutor has opposed the bail application and submitted that looking to the seriousness of the accusation against the petitioner, he does not deserve to be enlarged on bail.
Heard learned counsel for the petitioner and learned Special Public Prosecutor. Perused the material available on record.
Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the contraband (Ganja) was not recovered from the conscious possession of the present petitioner. This Court also prima facie finds that the petitioner who is aged about 21 years is in judicial custody since 7.1.2022 and trial against him is likely to take sufficiently long time to conclude. This Court on careful perusal of the documents attached with the case file, finds that the petitioner is not the main accused but was working as a delivery boy of the main accused and was to receive only a sum of Rs.1000/- from the main accused against unloading of the contraband from train No.15632 (Guwahati Barmer Express). Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the second bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Mohammad Sabir S/o Shri Aklakh Khan arrested in connection with F.I.R. No.VIII(IO)01/NCB/JZU/2022 registered at Police Station NCB, District Jodhpur, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.
It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.”
Learned counsel for the petitioner further submitted that the petitioner is aged about 25 years and he is in judicial custody since 10.01.2022. Learned counsel also submitted that the case of the present petitioner is not distinguishable from that of the co-accused Mohammad Sabir, who has already been enlarged on bail. Learned counsel submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.
Per contra, learned Public Prosecutor has opposed the bail application and submitted that looking to the seriousness of the accusation against the present petitioner, he does not deserve to be enlarged on bail. However, he was not in position to refute the fact that co-accused Mohammad Sabir has already been enlarged on bail by this Court vide order dated 02.02.2024.
Having considered the rival submissions, facts and circumstances of the case, this court prima facie finds that the case of the present petitioner is not distinguishable from that of the co-accused Mohammad Sabir, who has already been enlarged on bail. This court also finds that the contraband (Ganja) was not recovered from the conscious possession of the present petitioner; petitioner is aged about 25 years and he is in judicial custody since 10.01.2022; and the petitioner does not have any criminal antecedents. Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the second bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Suhaib Khan S/o Anwarulhak, arrested in connection with F.I.R. No.VIII(IO)01/NCB/JZU/2022 registered at Police Station NCB, Jodhpur, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.