AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the parties. Perused the material available on record. The instant second bail application under Section 439 Cr.P.C.has
been preferred on behalf of the petitioner who is in custody since 27.12.2015 in connection with F.I.R. No.236/2015, registered at Police Station
Gudamalani, District Barmer for the offence under Sections 8/15 and 29 of the NDPS Act and Section 353, 307/149 IPC and Section 3/25 of the
Arms Act. The allegation of the prosecution is that the petitioner and co-accused Hemaram were intercepted by the police party while travelling in
two vehicles. The police team signaled the cars to be stopped on which, four persons got down and started running away. They were warned on
which they started firing at the police party. Ultimately, the petitioner and Hemaram could be apprehended. The firearm and ammunition were
recovered from possession of the co-accused Hemaram. Twenty gunny bags of poppy straw were recovered from the pick-up vehicle whereas
twenty three gunny bags were recovered from Tavera vehicle. The earlier bail applications of the petitioner as well as Hemaram were rejected
looking to the gravity and nature of allegations. However, Hemaram filed a third bail application under Section 439 Cr.P.C. which came to be allowed
by Coordinate Bench with the following observations: “Arguing on the third bail application, it is submitted by learned Senior Counsel that after
rejection of second bail application, learned trial Court has made sincere endeavour to summon seizure officer inasmuch as process is issued from time
to time, but he is not turning up for deposing. In support thereof, learned Senior Counsel has placed on record order-sheets of learned trial Court from
21st of February, 2018 to 20th of September, 2018. It is also argued by learned Senior Counsel that the Court has also issued bailable warrants with
instructions to Director, Rajasthan Police Academy, Jaipur to serve bailable warrants but all in vain. Learned counsel has, therefore, argued that trial is
being prolonged because of non-appearance of the Seizure Officer and, in that background, considering the prolonged custody of the petitioner as
under- trial for more than two years and ten months, his third bail application merits favourable consideration. It is also submitted by learned counsel
that there is no recovery of contraband from conscious possession of the petitioner. Learned Senior Counsel further submits that coaccused Mohanlal
and Nagaram, who were subsequently apprehended, have been enlarged on bail. Learned Senior Counsel has further argued that as regards offence
under Section 307 IPC, there is no cogent/direct evidence, come to the fore during investigation, so as to castigate any accused who fired gun and
further there is nothing on record to show an individual injured on account of gun fire. He, therefore, submits that the allegations as such are omnibus
and that is why, in the charge-sheet against all the four accused persons, offence under Section 307 IPC is slapped with the aid of Section 34 IPC.
Per contra, learned Addl. Advocate General has vehemently opposed the bail plea of petitioner. It is submitted by learned Addl. Advocate General
that the contraband recovered in the matter is umpteen times higher than commercial quantity and, in fact, the contraband was recovered from two
vehicles and in one of them, petitioner was travelling and when the said vehicle was intercepted, he fled away from the scene of occurrence. When
being confronted on total collapse and non-cooperative posture of the Seizure Officer to depose before the learned trial Court, learned Addl. Advocate
General submits that appropriate action shall be taken against the erring official for showing total apathy to his duties. However, leaned Addl.
Advocate General did not dispute this fact that Seizure Officer has so far not appeared before the learned trial Court for recording his statements.
I have bestowed my consideration to the arguments advanced at Bar and also considered the prolonged custody of the petitioner besides other
arguments, which are canvassed by the learned Senior Counsel to highlight material change in the circumstances.
Having regard to the facts and circumstances of the case, in my opinion, it would be a fit case wherein petitioner can be granted benefit of bail by
toning down rigor of Section 37 of the NDPS Act.
Accordingly, this third bail application under Section 439 Cr.P.C. is allowed and it is ordered that accused-petitioner, Hema Ram S/o Shri Uda Ram,
arrested in connection with FIR No. 236/2015, registered at Police Station Gudamalani, District Barmer, may be released on bail; provided he
furnishes a personal bond of Rs.1,00,000/-with two surety bonds of like amount to the satisfaction of learned trial Court with the stipulation to appear
before that Court on all dates of hearing and as and when called upon to do so.â€
Thus, Shri Bora, learned Sr. Counsel submits that the petitioner too deserves indulgence of bail on parity.
Learned Public Prosecutor is not in a position to dispute the fact that no other case under the NDPS Act has been registered against the petitioner till
date. The allegations against Hemaram can be considered to be graver in nature considering the fact that the firmarm and ammunition with which, the
gunshots were fired towards the police party were recovered from his possession.
Manifestly, the trial of the case is not being concluded for the reason that the seizure officer who has since retired is acting adamantly and has refused
to appear in the court for giving evidence. The trial court is directed to secure the presence of the witness by issuing the warrant of arrest.
In this background and having regard to the entirety of facts and circumstances available on the record and keeping in mind the principle of equality
enshrined by Constitution of India, I am of the opinion that the petitioner whose case stands on a better footing than that of Hema Ram, deserves to be
released on bail.
Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Suresh Kumar arrested in connection
with the F.I.R. No.236/2015, registered at Police Station Gudamalani, District Barmer shall be released on bail provided he furnishes a personal bond
of Rs.50,000/- and two surety bonds of Rs.25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on
all dates of hearing and as and when called upon to do so.