Facts of the Case

The petitioner, Ramavtar, filed an anticipatory bail application under Section 438 Cr.P.C. in connection with FIR No. 51/2022, registered at Police Station Shahpura, District Jaipur, for alleged offences under Sections 8/15 of the NDPS Act.

The prosecution case concerned recovery of a narcotic substance described in the order as Opium Poppy Peel / Opium Poppy (Doda Post) from a hotel.

The petitioner’s case was that no recovery of contraband was required to be made from him and that the hotel from which the alleged contraband had been recovered was registered in the name of Rajendra Sharma. The petitioner asserted that he had no connection with the alleged offence.

To support his contention, the petitioner relied upon documents relating to the hotel/business, including details of the proprietor, electricity bill, GST registration certificate, additional place of business, MSME ID/Aadhaar-related material and licence of the Central Board of Excise and Customs, which were referred to as Annexure-3.

The petitioner had earlier been granted interim protection from arrest by a Coordinate Bench of the High Court through an order dated 23.06.2022.

The petitioner also relied upon the fact that anticipatory bail had already been granted to co-accused Rajendra Prasad Sharma by the learned Additional Sessions Judge No. 1, Shahpura, District Jaipur, vide order dated 21.07.2022.

However, the material considered by the Court also included witness statements, a Gram Panchayat letter concerning physical possession/management of the hotel, the police factual report, alleged recovery from the hotel stated to be in the petitioner’s possession, and the petitioner’s criminal antecedents.

Issues Involved

The principal issues before the Rajasthan High Court were:

  • Whether the petitioner was entitled to anticipatory bail under Section 438 Cr.P.C. in a case registered under Sections 8/15 of the NDPS Act.
  • Whether the petitioner’s contention that the hotel was registered in another person’s name was sufficient to justify pre-arrest bail.
  • Whether the documents relied upon by the petitioner concerning proprietorship, electricity connection, GST registration, additional place of business, MSME details and licensing materially disconnected him from the hotel and alleged offence.
  • Whether the grant of anticipatory bail to co-accused Rajendra Prasad Sharma supported the petitioner’s claim for similar relief.
  • Whether witness statements allegedly identifying the petitioner as owner and manager of the hotel could be considered against him at the anticipatory bail stage.
  • Whether the factual report alleging that the narcotic substance was recovered from a hotel in the petitioner’s possession justified refusal of anticipatory bail.
  • Whether the petitioner’s criminal antecedents, including one previous case under Sections 8/15 of the NDPS Act, were relevant to the exercise of discretion under Section 438 Cr.P.C.

Petitioner’s Arguments

The petitioner submitted that no recovery of contraband remained to be made from him.

It was contended that the hotel from where the alleged contraband was recovered stood registered in the name of Rajendra Sharma, and therefore the petitioner had no relation with the alleged offence.

The petitioner relied upon supporting documentary material, including:

  • proprietor details;
  • electricity bill;
  • GST registration certificate;
  • details concerning additional place of business;
  • MSME ID/Aadhaar-related documentation; and
  • licence of the Central Board of Excise and Customs.

The petitioner further emphasized that a Coordinate Bench of the Rajasthan High Court had already granted him interim protection from arrest on 23.06.2022.

Reliance was also placed upon the anticipatory bail granted to co-accused Rajendra Prasad Sharma by the Additional Sessions Judge No. 1, Shahpura, District Jaipur, on 21.07.2022.

During arguments, learned counsel for the petitioner submitted a photocopy of the bail order of the co-accused, which was taken on record.

On these grounds, the petitioner requested grant of anticipatory bail.

Respondent / State’s Arguments

The learned Government Advocate-cum-Additional Advocate General strongly opposed the anticipatory bail application.

The State also placed a factual report before the Court, which was taken on record.

The material relied upon against the petitioner included the observations recorded in the earlier bail rejection order of the Additional Sessions Judge.

According to that material, Uttam Singh and Gangaram, stated to be workers at Pandit Hotel, had allegedly stated in their police statements that the petitioner, Ramavtar Sharma @ Pappu, was the owner and manager of Pandit Hotel.

The material further referred to a letter issued by the Gram Panchayat concerning physical possession of the hotel, which was stated to show that Pandit Hotel was managed by the petitioner.

Additionally, witness Ashok Kumar was stated to have mentioned in his police statement the fact of purchasing Opium Poppy (Doda Post) from the manager of Pandit Hotel, identified in the order as Ramavtar Sharma @ Pappu.

The factual report further stated that, after investigation, narcotic substance described as Opium Poppy Peel had been recovered from the hotel which was allegedly in the possession of the petitioner.

The report also stated that an offence under Sections 8/15 of the NDPS Act was found against the petitioner.

Significantly, the factual report recorded that the petitioner had criminal antecedents of three cases, of which one case also pertained to Sections 8/15 of the NDPS Act.

Court Order / Findings

The Rajasthan High Court heard the parties and perused the material available on record.

The Court noted that, in the anticipatory bail order of co-accused Rajendra Prasad Sharma, it had been recorded that even the factual report indicated that the said co-accused was not involved in the alleged offence.

However, the Court found that the material concerning the present petitioner was materially different.

The Court specifically considered the observations in the petitioner’s earlier bail rejection order, according to which:

  • Uttam Singh and Gangaram, workers at Pandit Hotel, had allegedly stated that the petitioner was the owner and manager of the hotel;
  • a Gram Panchayat letter concerning physical possession was stated to indicate that the hotel was managed by the petitioner; and
  • witness Ashok Kumar had allegedly stated that he purchased Opium Poppy (Doda Post) from the manager of Pandit Hotel, namely the petitioner.

The Court further took into account the factual report stating that the narcotic substance had been recovered from the hotel allegedly in the petitioner’s possession.

The Court also considered that the factual report attributed an offence under Sections 8/15 of the NDPS Act to the petitioner.

A particularly significant consideration was the petitioner’s alleged criminal antecedents involving three cases, including one case under Sections 8/15 of the NDPS Act.

Having regard to the facts and circumstances and the petitioner’s criminal antecedents, the High Court held that it was not proper to enlarge the petitioner on anticipatory bail.

Accordingly, the anticipatory bail application was dismissed.

Final Order

The Rajasthan High Court:

  • declined to grant anticipatory bail to the petitioner;
  • dismissed the application filed under Section 438 Cr.P.C.; and
  • expressly clarified that the decision was rendered without expressing any opinion on the merits and demerits of the case.

Important Clarification

This order does not amount to a final determination of the petitioner’s guilt under the NDPS Act.

The High Court expressly stated that it was declining anticipatory bail without expressing any opinion on the merits and demerits of the case.

Therefore, the observations concerning:

  • alleged possession or management of Pandit Hotel;
  • alleged witness statements;
  • alleged purchase of Opium Poppy (Doda Post);
  • alleged recovery from the hotel;
  • the factual report; and
  • criminal antecedents

were considered only for deciding whether discretionary pre-arrest protection under Section 438 Cr.P.C. should be granted.

Another important distinction is that the grant of anticipatory bail to co-accused Rajendra Prasad Sharma did not automatically entitle the petitioner to bail on parity. The Court noted that the co-accused’s bail order itself referred to the factual report indicating that Rajendra Prasad was not involved, whereas separate incriminating material was referred to against the present petitioner.

Sections / Provisions Involved

Section 438 of the Code of Criminal Procedure, 1973 – Governs grant of anticipatory bail or pre-arrest protection to a person apprehending arrest for a non-bailable offence.

Section 8 of the NDPS Act, 1985 – Contains the statutory prohibition relating to specified operations concerning narcotic drugs and psychotropic substances except for medical or scientific purposes and in the manner permitted by the Act, Rules or Orders.

Section 15 of the NDPS Act, 1985 – Provides punishment for contravention in relation to poppy straw.

Sections 8/15 of the NDPS Act – The FIR and alleged offence in the present case were specifically recorded under these provisions.

Link to download the order -https://mytaxexpert.co.in/uploads/1783495437_1518compressed.pdf

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