Madhya Pradesh High Court
Banti Nagda @ Banshilal vs Union Of India on 8 April, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 M.Cr.C. No.15916/2022
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 8th OF APRIL, 2022
MISC. CRIMINAL CASE No. 15916 of 2022
Between:-
BANTI NAGDA @ BANSHILAL S/O KAILASHCHANDRA ,
AGED ABOUT 28 YEARS, OCCUPATION: AGRICULTURIST
VILLAGE BABRECHA, TEHSIL MANDSAUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI NADEEM KHAN, ADVOCATE)
AND
UNION OF INDIA THROUGH CENTRAL BUREAU OF
NARCOTICS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MANOJ KUMAR SONI, ADVOCATE)
This application coming on for orders this day, the court passed
the following:
ORDER
They are heard. Perused the documents / challan papers. This is applicant's second application under Section 438 of Criminal Procedure Code, 1973 for grant of anticipatory bail, as he is apprehending his arrest in connection with Crime No.02/2020 registered at Police Station C.B.N., Mandsaur, District Mandsaur (MP) for offence punishable under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
His earlier application M.Cr.C. No.25993/2021 has already been dismissed by this Court on 17/08/2021 with liberty to the applicant to surrender before the Trial Court.
Learned counsel for the applicant has submitted that the present application may be dismissed on merits as the applicant wants to go to Supreme Court. In the present application, the applicant has also placed on record an agreement dated 14/08/2020 in which it is stated 2 M.Cr.C. No.15916/2022 that the premises from which the contraband 1189.700 kg of poppy straw was loaded, was already given on rent by the wife of the applicant to one Ashok Menariya on 14//08/2020 itself around one month prior to the date of incident which is 18/09/2020. Counsel has submitted that in such circumstances, it cannot be said that the applicant was in exclusive possession of the property. Counsel has further submitted that earlier another counsel had appeared on behalf of the applicant and he could not draw the attention of this Court to the aforesaid agreement. Thus, it is submitted that the application be allowed and he be released on anticipatory bail.
Counsel for the respondent / CBN, on the other hand, has opposed the prayer and it is submitted that no case for grant of anticipatory bail is made out as 1189.700 kg of poppy straw has been seized from the premises and the agreement has been filed subsequently which is allegedly prepared around one month prior to the date of incident which is 18/09/2020. It is further submitted that the premises has been identified by the person from whom the contraband was seized and certain plastic bags have also been seized from the said premises which were identical to the bags which have been seized from the bags in which the contraband was being transported.
Heard counsel for the parties and perused the case diary as also the documents filed on record.
From the record, it is apparent that initially when the application for anticipatory bail was filed before the Trial Court, this plea of an agreement having executed by the wife of the applicant in favour of Ashok Menariya was not even taken as the same is also not reflected from the order dated 26/03/2021 passed by the Trial Court and the last bail application filed by the applicant has also been dismissed as withdrawn with liberty to surrender before the Trial Court. In such circumstances, merely filing of an agreement which is backdated one month prior to the date of incident would not entitle the applicant to 3 M.Cr.C. No.15916/2022 claim anticipatory bail as the same appears to be an afterthought. Otherwise also, there is enough material available on record to suggest the involvement of the applicant in the offence.
This Court, in M.Cr.C.No.43856/2021 (Bherulal s/o Radheshyam Dhakad v. Central Government through Police Station C.B.N. Mandsaur District Mandsaur MP), vide order dated 23.09.2021, while relying upon a decision rendered by the Supreme Court in the case of Murleedharan v. State of Kerala reported as 2001 SCC (Criminal) 795 has taken a specific view that such an application under Section 438 of Cr.P.C. cannot be allowed. Relevant paras No.7 to 9 of the decision passed by this Court in Miscellaneous Criminal Case No.43856/2021(supra) read, as under: -
"7. Admittedly, the provisions of the Act have harsher provisions for sentencing and even harsher provisions when it comes to bail, as has been provided under Section 37 of the Act. In the case of Murleedharan (supra), while dealing with a similar provision, Section 41-A of the Kerala Abkari Act, the Supreme Court has held, that :-
"According to the Sessions Judge "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused".
The above provision is in pari materia with Section 37 of the Narcotic Drugs and Psychotropic Substances Act. This Court has held, time and again, that no person who is involved in an offence under that Act shall be released on bail in contravention of the conditions laid down in the said Section. (vide Union of India v. Ram Samujh [1999 (9) SCC 429]. If the position is thus in regard to an accused even after arrest, it is incomprehensible how the position would be less when he approaches the court for pre-arrest bail knowing that he would also be implicated as an accused. Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy.
Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to 4 M.Cr.C. No.15916/2022 connect the appellant with the crime."
(emphasis supplied) Accordingly, the bail application is dismissed.
(Subodh Abhyankar) Judge krjoshi Digitally signed by KHEMRAJ JOSHI Date: 2022.04.08 17:18:29 +05'30'