Rajasthan High Court – Jodhpur
Kumbha Ram vs State Of Rajasthan (2025:Rj-Jd:34743) on 5 August, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:34743]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 4th Bail Application No. 6076/2025
Kumbha Ram S/o Ameda Ram, Aged About 25 Years, R/o Mangle
Ki Beri, Police Station Rgt Rawalnadi, District Barmer.(Presently
Lodged In District Jail Barmer)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. N.K. Gurjar
For Respondent(s) : Mr. S.S. Rathore, Dy.G.A.
Mr. Imran Khan SI, DST Balotra the
then SHO RGT, Barmer
HON'BLE MR. JUSTICE FARJAND ALI
Order
05/08/2025
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 19/2022 2. Concerned Police Station RGT (Ravli Nadi) 3. District Barmer 4. Offences alleged in the FIR Section 8/18 of the NDPS Act 5. Offences added, if any Section 29 of the NDPS Act 6. Date of passing of impugned 13.05.2025 order
2. On 21.02.2022, Om Prakash, SHO along with his team at
approximately 2:00 PM, while engaged in an unrelated
investigation at Naya Kua on the outskirts, the DST In-charge
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received a credible telephonic tip-off from a confidential informant
implicating Kumbharam in the illicit trafficking of narcotic
substances. It was alleged that the accused had clandestinely
concealed opium milk within a room of his residential premises
located at Sarhad Mangale Ki Beri.
2.1. Acting promptly on this intelligence and adhering to due
procedural formalities, law enforcement officials arrived at the
scene by 3:30 PM. Upon arrival, the accused, later positively
identified by Constable Pemaram, attempted to abscond in a
Fortuner vehicle stationed outside the premises. The police
intercepted the vehicle, compelling him to abandon it and flee on
foot towards a sandy pit, ultimately evading immediate
apprehension.
2.2. Subsequent search operations, conducted in strict
compliance with statutory mandates, yielded the recovery of five
sealed plastic bags containing the contraband. On inspection via
sensory evaluation and chemical testing, the substance was
conclusively identified as opium milk. The accused failed to
produce any lawful authorization for possession. The aggregate
weight of the seized contraband, inclusive of packaging, was
recorded at 5.700 kilograms.
2.3. The opium milk was seized, and upon return to the police
station, a formal case was instituted. Following thorough
investigation, a charge sheet was submitted against Kumbharam
under Sections 8/18 of the NDPS Act. Additionally, charges under
Sections 8, 18, and 29 of the NDPS Act read with Section 299
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CrPC were framed against the absconding co-accused Kundan
Singh @ Kundan Rana. He was arrested on 10.10.2023 since then
he is behind the bars. His first, second and third application being
SBCRLMB Nos.2017/2024, 12532/2024 & 15927/2024 were
dismissed by this Court vide orders dated 20.03.2024, 06.11.2024
& 17.12.2024 respectively. While rejecting the third bail
application, he was given liberty to renew the prayer for bail after
recording the statement of Pemaram, Constable, now he has been
examined. 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
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.
4. 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.
5. I have heard and considered the submissions made by both
the parties and perused the material available on record.
6. The prosecution case, as delineated in the statements of the
investigating officers, reveals that the police party reached the
designated location pursuant to credible information regarding the
accused’s presence. Upon arrival, the accused, who was traveling
along a public road in a Fortuner vehicle, attempted to evade
apprehension by fleeing. The accused abandoned the vehicle
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following a police blockade and escaped on foot through difficult
terrain, thereby eluding immediate capture. It is pertinent to note
that no recovery of contraband or incriminating material was
effected from the said vehicle.
6.1 PW-1, Om Prakash, SHO, deposed that at the time of the
search, the premises were found vacant. Although the SHO
himself did not identify the fleeing individual, identification was
made by Constable Pemaram. The accused fled without
approaching the police squad, thereby avoiding arrest. The SHO
admitted that no local functionaries, such as the Sarpanch or
Patwari, were summoned to verify the ownership of the premises;
instead, reliance was placed solely on the assessment of Constable
Pemaram. Exhibit-10 confirms that no ownership documents were
recovered or seized from the property. Despite the operation
extending over approximately three hours and neighbors being
called to the scene, their statements were neither recorded nor
attested on the spot to support that the place of seizure was
either in possession of the petitioner or he was having dominion in
the capacity of owner. The samples of seized contraband were
collected by the SHO in the absence of a Magistrate, and the
inventory proceedings were conducted nearly one year post-
seizure, with the contraband weighed inclusive of its packaging.
The vehicle seized outside the residence, registered in the name of
Vijay Singh Jadeja, yielded no narcotic substances or ownership-
related documents. The record is silent as to the police vehicle
employed during the operation. The seals affixed on the seized
packages remained intact and untampered. The SHO denied the
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defense assertion disputing the ownership of the premises by the
accused.
6.2 The Court observes that as per the testimony of PW-2
Pemaram, the SHO, along with his team, proceeded to the
accused’s residence upon receiving information from the
informant. The accused, identified as Kumbharam, fled the scene,
abandoning a Fortuner vehicle, and could not be apprehended.
Inspector Harchand Ram was left to secure the premises and the
vehicle. No search warrant was obtained, nor were any
independent witnesses involved. The record is silent on any
attempt to involve local officials or obtain ownership documents.
No warrant existed against the accused at the relevant time. The
seizure of contraband was made without the presence or
authorization of a Magistrate, and no contraband was recovered
from the vehicle, which was registered in the name of a third
party.
7. In the present case, it has not been conclusively established
that the accused had exclusive and conscious possession of the
place from which the alleged contraband was recovered. The
accused is a resident of a joint family, indicating that the property
in question is shared among several family members, thereby
negating any claim of exclusive control or ownership. There has
been no proper verification or documentation submitted to
establish that the accused had sole dominion or control over the
premises at the relevant time. The premises from which the
contraband was purportedly seized were not exclusively under the
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accused’s control, as no clear evidence demonstrates that he
exercised singular authority over the property.
7.1 Moreover, no contraband was found or recovered from the
vehicle that was seized outside the premises, which further casts
doubt on the accused’s exclusive possession of the incriminating
material. The procedural irregularities compound these doubts;
despite the significance of ownership verification in such cases,
local authorities who customarily perform such functions, such as
the Sarpanch, Patwari, or Gram Sevak were not summoned or
involved during the search and seizure operation. The absence of
their involvement deprived the investigation of authoritative
verification of property ownership.
7.2 Additionally, there was no recovery of any ownership
documents or legally binding records that could substantiate the
accused’s possession or rights over the property. Nor were
statements of neighbors or other relevant witnesses recorded or
documented at the spot, which could have provided circumstantial
evidence regarding possession or control of the premises. This
lack of comprehensive inquiry and corroborative evidence
undermines the prosecution’s assertion of exclusive possession by
the accused, leaving the claim unsubstantiated both factually and
legally. For the sake of ready reference, exclusive possession
and conscious possession are defined as follows:
(a) Exclusive Possession:
Exclusive possession denotes that the accused alone exercises
sole control and authority over the property, premises, or
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[2025:RJ-JD:34743] (7 of 9) [CRLMB-6076/2025]contraband in question, without sharing such possession with any
other individual. It implies both physical custody and the legal
right to exclude others from the premises or item. Courts often
presume conscious possession from exclusive possession unless
the contrary is established. For example, narcotics found in a
locked cupboard within the accused’s private room, to which only
the accused holds the key, constitute exclusive possession.
(b) Conscious Possession:
Conscious possession refers to the accused’s awareness and
knowledge of the existence and nature of the contraband and
exercising some degree of control over it, even if possession is not
exclusive. It may be joint possession with others, provided the
accused’s knowledge and control are proven. Mere physical
proximity is insufficient; a mental element of awareness is
essential. For instance, if narcotics are found in a shared vehicle
and the accused is aware of their presence, he is deemed to be in
conscious possession despite others having access to the vehicle.
8. In the case of State of Punjab v. Balkar Singh & Ors.,
reported in (2004) 3 SCC 582, the Hon’ble Supreme Court
categorically held that the prosecution had failed to establish the
element of conscious possession, which is a sine qua non for
attracting the provisions of the NDPS Act. On this ground alone,
the Hon’ble Apex Court was pleased to dismiss the appeal filed by
the State. For the sake of ready reference, the relevant extract
from the judgment is reproduced hereinbelow:
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“3. We heard the counsel for the appellant. The High Court
by the impugned judgment stated that the prosecution
failed to prove that these respondents were in conscious
possession of the poppy husk recovered by the police. The
evidence by the prosecution consisted of the testimony of
PW-1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these
witnesses deposed that they found the respondents sitting
on the bags of poppy husk. The recovery was effected from
a field in village Lohgarh. The respondents belonged to
different villages. The respondent Balkar Singh is a resident
of Village Bira Bedi in District Hisar while respondent Munish
Chand is a resident of Farukhabad. The police did not make
any investigation as to how these 100 bags of poppy husk
were transported to the place of incident. They also did not
adduce any evidence to show the ownership of the poppy
husk. The presence of respondents at the place from where
the bags of poppy husk was recovered itself was taken as
possession of these bags by the police. In fairness, the
police should have conduced further investigation to prove
that these accused were really in possession of these
articles. The failure to give any satisfactory explanation by
the accused for being present on that place itself does not
prove that they were in possession of these articles. Though
the respondents raised a plea before the Sessions Court, the
same was not considered by the Sessions Judge in the
manner in which it should have been considered. We do not
think that the High Court erred in holding that there was no
evidence to prove that the respondents were in conscious
possession of the poppy husk recovered by the police. The
prosecution failed to discharge its obligation to prove the
possession of the poppy husk by the respondents. We do
not find any infirmity in the judgment passed by the High
Court.”
9. This Court is of the considered view that the prosecution has
failed to conclusively establish that the accused was either in
exclusive possession or in conscious possession of the property in
question. The record reveals that the alleged contraband was
recovered from a room situated within residential premises that
were found vacant at the time of search. There is no cogent
material to show that the accused had exclusive control or
ownership over the said premises. Cumulatively, the procedural
lapses, lack of verification particularly with respect to absence of a
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search warrant, absence of independent or documentary evidence,
and the delayed inventory proceedings. The failure to secure
statements from neighbors and the lack of Magistrate supervision
during seizure are also matters of concern which cast a serious
shadow of doubt over the prosecution’s version and dilute the
allegations regarding both exclusive and conscious possession by
the accused. There is high probability that the trial may take long
time to conclude. In light of these facts and circumstances, it is
deemed suitable to grant the benefit of bail to the petitioner.
10. 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.
11. 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
33-Mamta/-
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