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1 S.B.CRIMINAL MISC. BAIL APPLICATION NO.1844/2009
Bheru Lal Vs. Central Bureau of Narcotics
DATE OF ORDER : 10th December 2009
HON'BLE MR.JUSTICE DINESH MAHESHWARI
Mr.Farzand Ali,for the petitioner.
Mr.N.K.Rai, Special Public Prosecutor.
....
BY THE COURT
The petitioner is accused of offences under Sections
8/18, 29 of the NDPS Act and seeks bail under Section 439
Cr.P.C.
The learned counsel for the petitioner has strenuously
argued on the bail plea with the submissions that the petitioner
has been sought to be implicated in the present case merely
on the basis of the statement as purportedly made by him on
05.03.2009 under Section 67 of the NDPS Act but the value,
worth, and relevance of such a statement remains seriously
questionable because the contraband in question was
recovered on 25.12.2008; and from the pieces of evidence
collected during the investigation until 05.03.2009, the
investigating agency had already categorised the petitioner as
an accused in this matter. The learned counsel contended
that for the petitioner’s placement as an accused in this case,
the statement as purportedly given by him on 05.03.2009
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cannot be treated to be an information given under, and for
the purpose of, Section 67 of the NDPS Act; and such a
statement would be directly hit by Section 24 of the Evidence
Act.
The learned counsel yet further contended that the
alleged statement cannot be said to have been made
voluntarily and even by way of specific retraction application
as made before the learned Special Judge, NDPS Cases,
Chittorgarh on 19.03.2009, the petitioner has clarified that it
were not a voluntary statement and that his signatures were
obtained in the name of the alleged arrest memo.
The learned counsel further submitted that there is not
even an iota of corroborative evidence on the record to
sustain the accusation against the petitioner of the offence
under the NDPS Act.
The learned counsel yet further pointed out that the co-
accused persons Basant Sualka and Shanker, who were in
one way or the other found in the vehicle carrying the
contraband, have been ordered to be enlarged on bail by this
Court while allowing their respective Bail Applications
Nos.3539/2009 and 5541/2009 on 05.10.2009 and on
01.12.2009.
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The learned counsel further contended that the
allegations against the petitioner cannot be taken to be leading
to the offence under Section 29 of the NDPS Act; and when
the suggestions are, are the most, of some irregular dealing
or some embezzlement of the opium produced, in the totality
of the facts and circumstances, the petitioner deserves to be
enlarged on bail.
Having given a thoughtful consideration to the
submissions made by the learned counsel for the petitioner
and having examined the relevant papers, at this stage of the
proceedings, this Court does not feel persuaded to grant
indulgence to the petitioner.
Prima facie evidence has been suggested in this case
that out of the total 9.700 kilograms of opium involved in the
crime, 4.700 kilograms of opium was sold by the petitioner.
True it is that the contraband in question was recovered on
25.12.2008 and the statement of the petitioner came to be
recorded on 05.03.2009 but then, for this reason alone, the
entire of the statement cannot be discarded at this stage. It is
noticed, inter alia, from the questions and the answers as
occurring in the said statement that previously, the petitioner
was served with the notice under Section 67 of the NDPS Act
on 14.01.2009 and was called upon to appear on 23.01.2009
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but he did not, allegedly on the ground of some unspecified
ailment; then, he was given another notice on 28.01.2009 and
was called upon to appear on 14.02.2009 but, again, he did
not and in that regard, merely expressed want of knowledge.
In the given background, the suggestions as made by the
learned counsel that the petitioner had already been
categorised or assumed to be an accused before recording of
his statement, cannot be accepted at this stage.
The value and worth of the statement said to have been
made by the petitioner on 05.03.2009, his alleged retraction
dated 19.03.2009, and the other requirements of legal
evidence would definitely be the matters to be considered by
the learned Trial Court at the relevant stage but then, looking
to the nature of the crime concerned and the role assigned to
the petitioner, from whom the contraband emanated, this Court
does not find it a fit case to enlarge him on bail at this stage.
So far the aspect of grant of bail to the co-accused
Basant Suwalla is concerned, it is noticed from the order
dated 05.10.2009 that the submissions on behalf of the said
petitioner were taken into consideration by the Court that he
was merely driving the vehicle wherein opium was being
carried by Radhey Shyam and Banwari Lal who had hired the
vehicle; and that he did not permit the co-accused to hire the
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vehicle with the knowledge that the same was to be used for
carrying opium.
So far the other accused Shanker is concerned, the
submissions were noticed in the order dated 01.12.2009 that
the opium was recovered from Radhey Shyam and Banwari
Lal, that the purchaser of the opium had been Khinya Ram,
and Commission Agent had been Kishan; and that the said
accused Shanker was allegedly present at the time the deal
was struck between Khinya Ram and Kishan without direct
involvement in the transaction. The Court also considered the
position that the said accused Shanker was neither the
purchaser nor the seller of the opium.
Obviously, for the different roles as assigned to the said
accused persons, the bail orders in their relation do not enure
to the benefit of the present petitioner.
Accordingly, the bail application moved on behalf of the
petitioner Bheru Lal s/o Chamna Lal under Section 439
Cr.P.C. stands rejected.
(DINESH MAHESHWARI),J.
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