Rajasthan High Court – Jodhpur
Kesha Ram vs State Of Rajasthan (2025:Rj-Jd:37371) on 20 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:37371]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 6281/2025
Kesha Ram S/o Chena Ram, Aged About 24 Years, R/o Chawa
Nada Huddo Ki Dhani Police Station Bayatu District Balotra (At
Present Lodged In Sub Jail Balotra)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Jagmal Singh Choudhary Sr.
Advocate assisted by
Mr.Pradeep Choudhary
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
20/08/2025
1. The jurisdiction of this court has been invoked by way of
filing an application under Section 439 CrPC at the instance of
accused-petitioner. The requisite details of the matter are
tabulated herein below:
S.No. Particulars of the Case 1. FIR Number 74/2023 2. Concerned Police Station Samdari 3. District Barmer 4. Offences alleged in the FIR Section 8/15 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 16.04.2025 order
2. The concise facts of the case are that on 02.04.2023 at
about 11:20 p.m., SHO Smt. Sharda U.N., accompanied by the
police force, left Police Station Samdari for local and special Act
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proceedings. While on patrol, they joined another police team and
reached Karmawas Fanta at around 11:45 p.m., where a blockade
was set up. During the blockade, on 03.04.2023 at about 12:15
a.m., a motorcycle followed by a luxury car was noticed
approaching at high speed from the Pali Road side. When signaled
to stop, both vehicles broke through the blockade and sped
towards Siwana. The police party pursued the vehicles, and near
the outskirts of Karmawas, both were abandoned. The
motorcyclist was apprehended, who disclosed his identity as the
present applicant-accused, Kesharam, and named the driver of
the luxury car as Moolaram, who had fled the scene. On inquiry,
the applicant allegedly stated that the luxury vehicle contained
poppy husk and that he was escorting it on the motorcycle. Upon
search of the luxury vehicle, 16 gunny bags containing 2 quintals
79 kilograms of contraband poppy husk were recovered, for which
no valid license or permit was produced. Both vehicles were
seized, and FIR No. 74/2023 was registered at Police Station
Samdari.
2.1. After investigation, a charge-sheet was filed on 30.09.2023
against accused Moolaram and Kesharam under Section 8/15 of
the NDPS Act. Cognizance was taken on the same day, and
charges were framed on 31.01.2024. His first and second bail
applications being SBCRLMB No.15048/2023 & 8006/2024 were
dismissed by this Court by this Court vide order dated 05.01.2024
& 16.12.2024. Hence the instant bail application.
3. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and his
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incarceration is not warranted. There are no factors at play in the
case at hand that may work against grant of bail to the accused-
petitioner and he has been made an accused based on conjectures
and surmises.
3. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
4. I have heard and considered the submissions made by both
the parties and perused the material available on record.
5. This Court has given anxious consideration to the rival
submissions and meticulously examined the material available on
record. The facts reveal that the petitioner was apprehended at
the spot while riding a motorcycle, whereas the co-accused, who
allegedly absconded from the luxury vehicle, was later identified
as Moolaram. Upon search of the car, 16 plastic sacks containing
poppy husk weighing 2 quintals and 79 kilograms were recovered,
for which no valid license or permit was produced. Significantly, no
contraband was recovered from the motorcycle allegedly ridden by
the petitioner.
5.1. The substratum of the prosecution case against the
petitioner rests exclusively upon the assertion that the motorcycle
was functioning as an escort vehicle to the car. This allegation,
however, is not fortified by any cogent or corroborative material.
Apart from the disclosure allegedly made by the petitioner during
interrogation, no independent witness or supporting circumstance
has been brought forth to substantiate this claim.
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5.2. It is a matter of judicial recognition that national highways
are public thoroughfares, traversed incessantly by a multitude of
vehicles at all hours. The mere circumstance that two vehicles
happen to move in close temporal or spatial proximity does not,
without more, establish collusion between their occupants. To infer
that one vehicle was escorting another solely on account of its
presence in proximity would amount to criminalising ordinary
vehicular movement and exposing innocent commuters to
unwarranted penal liability.
5.3. In prosecutions under the NDPS Act, the prosecution bears
the heavy burden of demonstrating conscious possession, active
participation, or a tangible nexus between the accused and the
contraband. Conjecture, suspicion, or proximity in time and place
cannot, by themselves, satisfy the threshold of proof mandated by
criminal jurisprudence. In the instant case, except for the
circumstance that the petitioner’s motorcycle was intercepted in
the vicinity of the car, no admissible evidence links him with the
contraband seized from the latter vehicle.
5.4. Therefore, this Court is constrained to observe that the
allegation of the motorcycle acting as an escort vehicle is
speculative and remains unproved. The absence of any
substantive recovery from the motorcycle, coupled with the lack of
corroborative evidence establishing a direct nexus between the
petitioner and the contraband, renders the prosecution case
against him tenuous and unsustainable in law.
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6. As per the law, while keeping an accused detained, the
opportunity to the prosecutor to lead evidence can only be given
for a reasonable period. The wider connotation of the phrase
‘reasonable period’ be understood to be one year because the case
is classified as a sessions case which would mean that the like
cases should commence and conclude within a session, that is,
one year. Even if an elastic interpretation of the expression
‘reasonable period’ is taken on the pretext of certain unavoidable
circumstances, then it can only be doubled and even in that
situation, trial has to be completed within two years while keeping
an accused in custody. Suffice it would to say that for the purpose
of determination as to whether the accused is guilty or not, only a
reasonable period can be awarded to the prosecutor if the accused
is behind the bars. The cases which are classified as session case
are purposefully directed to be heard by senior officer of District
Judge Cadre looking to his experience and rank/grade/post. In
criminal jurisprudence prevalent in India, there is a presumption
of innocence working in favour of the accused until he is proven
guilty in the trial. The trial is conducted for the purpose of
affording an opportunity to the prosecutor to prove the charges
and only for the purpose of proving guilt or adducing evidence on
record, an unreasonable period of time cannot be granted as the
same infringes the fundamental rights of an accused which are
otherwise guaranteed by the Constitution of India. While
entertaining a bail plea the Court of law is required to take into
account the above-mentioned aspect of the matter as well beside
the gravity of offence and quantum of sentence.
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7. In Rabi Prakash Vs. State of Odisha passed in Special
leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court
has again passed an order dated 13th July, 2023 dealing this
issue and has held that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37 of the
NDPS Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is, the
right to life and personal liberty contained in Article 21.
8. Considering the overall facts and circumstances and looking
to the fact that the petitioner is behind the bar since around two
and half years and noticing that there is no criminal antecedent
except the present one and the culmination of trial in a near
future is not a seeming fate this Court is of the view that nature
and gravity of offence alone are not required to be considered at
the time of granting bail but at the same time, it has to be
ensured that the trial has to be concluded within a reasonable
period if the accused in languishing in jail therefore, without going
into the niceties of the matter it is felt that the right of the
accused to have a speedy trial should be protected, this Court
deems it fit to grant the benefit of bail to the petitioner.
9. It is nigh well settled law that at a pre-conviction stage; bail
is a rule and denial from the same should be an exception. The
purpose behind keeping an accused behind the bars during trial
would be to secure his presence on the day of conviction so that
he may receive the sentence as would be awarded to him.
Otherwise, it is the rule of Crimnal Jurisprudence that he shall be
presumed innocent until the guilt is proved.
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10. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title shall be enlarged on bail provided he
furnishes a personal bond in the sum of Rs.50,000/- with two
sureties of Rs.25,000/- each to the satisfaction of the learned trial
Judge for his appearance before the court concerned on all the
dates of hearing as and when called upon to do so.
(FARJAND ALI),J
207-Mamta/-
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