Madhya Pradesh High Court
Sundarlal vs The State Of Madhya Pradesh on 22 February, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 22 nd OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 2751 of 2024
BETWEEN:-
SUNDARLAL S/O BAPULAL PATIDAR OCCUPATION:
AGRICULTURE VILLAGE TAKARAWAD, TEHSIL
MALHARGARH, MANDSAUR (MADHYA PRADESH)
.....APPLICANT
(SHRI VIKAS JAIN, LEARNED COUNSEL FOR THE PETITIONER .
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION NAHARGARH,
DISTRICT MANDSAUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI H.S.RATHORE APPEARING ON BEHALF OF ADVOCATE GENERAL)
This application coming on for admission this day, the court passed the
following:
ORDER
They are heard. Perused the case-diary.
This is the fourth bail application filed by applicant under Section 439 of Criminal Procedure Code, 1973 as he is implicated in connection with Crime No.520/2021, registered at Police Station - Nahargarh, Mandsaur (M.P.) for offence punishable under Section 8/18, 25 and 29 of IPC, 1860. The applicant is in custody since 02.11.2021.
2 . The first application was dismissed as withdrawn vide order dated 107.12.2021 passed in M.Cr.C. No.59024/2021, second application was Signature Not Verified dismissed on merits vide order dated 31.07.2023 passed in M.Cr.C. Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM 2 No.28434/2023, third application was allowed and temporary bail was granted to the applicant vide order dated 19.09.2023 passed in M.Cr.C. No.39332/2023 by Co-ordinate Bench of this Court and this Bench is hearing the matter after nomination.
3. As per prosecution story, on 02.11.2021, police received a discreet information regarding illegal transportation of contraband. Acting upon the said information, the police party, after following the due procedure of law, reached on the spot and intercepted a motorcycle and recovered 8KG 800Grams of opium from the joist possession of the applicant and co-accused kept in a polythene bag. Thereafter, following the due procedure, the police registered the offence against the applicant and co-accused.
4. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in this offence. Investigation is over and charge- sheet has been filed. No further custodial investigation is required. There is no legal evidence available on record to connect the applicant with the aforementioned offence. He is in jail since 02.11.2021. He is a permanent resident of District- Mandsaur. Final conclusion of trial shall take sufficient long time. In the trial Court, charges have been framed, but still the trial has not been concluded. It is further submitted that the applicant is in jail more than two years. It is further submitted that the Hon'ble Apex Court and co-ordinate Bench of this court granted bail to the applicants in the cases involved commercial quantity of the contraband. Till date the trial has not been commenced in the present mater and hence, due to the delay in the trial, the applicant is entitled to get bail from this Court.
To bolster his submissions, learned counsel has placed reliance upon the Signature Not Verified Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM 3 judgements of Hon'ble Apex Court passed in the case of Simarnjit Singh vs. State of Punjab passed in SLA (Cri.) No.1958/2023, Yusuf @ ASif vs. State passed in CRA No.3191/2023, Lal Bahadur @ Naveen Chouhan vs. State of Madhya Pradesh passed Special Leave to Appeal (Cri.) No.2913/2022, Tapas Mondal vs. The State of West Bengal (Special Leave to Appeal (Cri.) No.8464/2023 as well as on the orders of co-ordinate Bench of this Court dated 07.02.2024 passed in MCRC No.5354/2024 [Shriram vs. State of M.P.], order dated 02.02.2024 passed in MCRC No. Bahadur Singh vs. State of M.P.], order dated 08.11.2023 passed in MCRC No.50648/2023 [Arvind vs. State of M.P.] and order dated 20.12.2023 passed in CRA No.9855/2023 [Pappu vs. State of M.P.]. Counsel for the applicant has also placed reliance over the judgment of Rajasthan High Court passed in the case of Saubhagya Singh vs. UOI passed in SB Criminal MISC. Bail application No.2522/2023 & on an order of Bombay High Court in the case of Shivraj Gorakh Satpute vs. The State of Maharashtra passed in Bail application No.2865/2022 decided on 15.09.2023.
5. Relying upon the aforesaid judgments and orders, learned counsel for the applicant submits that there is non-compliance of the mandatory procedure of seizure and sampling which prima facie renders the seizure illegal. The investigating team has mixed the contraband and thereafter taken the samples collectively, therefore, there non-compliance of the mandatory provisions of Section 52 of the NDPS Act. Further, the seizure has not bee made neither in from of the Gazetted officer nor Magistrate, hence, the trial procedure is vitiated and reluctantly, it would amount to acquittal of the applicant. It is further submitted that prolonged incarceration, generally militates against the most Signature Not Verified Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM 4 precious fundamental right guaranteed under article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. Hence, the applicant is entitled to get on bail.
6. Per-contra, learned counsel for the respondent / State opposes the bail application and prays for its rejection by submitting that the applicant's earlier bail application was rejected. Further, he has also drawn attention towards the judgment of this Court dated 08.11.2023 passed in MCRC No.50648/2023 [Arvind vs. State of M.P.], whereby this Court has allowed the application as the applicant therein was made accused on the basis of memorandum statements of the present applicant from whom the contraband was seized. Hence, the principle of parity is not applicable for present applicant. Further, he has also drawn attention towards the judgment passed by Full Bench of Hon'ble Apex Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal reported in 2022 LiveLaw (SC) 613. The applicant cannot be released on bail.
7. In view of the aforesaid submissions, I have gone through the case diary.
8. So far as the case Lal Bahadur @ Naveen Chouhan (supra) and Nitish Adhikary @ Bapan (supra), the quantity of contraband has not been mentioned. That apart, in Lal Bahadur @ Naveen Chouhan (supra), out of 19 witness only 6 witnesses have been examined Similarly, all the facts of Tapas Mondal (supra) are different to this case. So far as the other citations placed b y learned counsel for the applicant, are concerned, they are also having different factual matrix. Some of them, are criminal appeals. It is well settled that Signature Not Verified Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM 5 every criminal case has its individual facts and circumstances and due to different facts of other cases, similar order cannot be passed. On this aspect, the law laid down by Full Bench of Hon'ble Apex Court in the case of Narcotics Control Bureau (supra) has binding effect over this Court. The following excerpt is relevant to quote here :-
18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that the chargesheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.
9 . So far as the facts and circumstances of the present case are concerned, no material change in the circumstances has been depicted by the applicant except custody period. So far as the submissions of counsel for the applicant regarding non-compliance of mandatory provisions are concerned, the same are the matter of record and the same shall be resulted only after the trial is concluded.
10. Considering all the facts and circumstances of the case, arguments advanced by both the parties, nature and gravity of allegation as also taking note Signature Not Verified Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM 6 of the fact that total 8.800kg opium has been recovered from the possession of the present applicant and co-accused, which is huge quantity as well as commercial quantity. Therefore, since no material changes in the circumstances revealed before this Court, the present fourth bail application is liable to be rejected.
11. Accordingly, M.Cr.C. is dismissed as being devoid of merit.
(PREM NARAYAN SINGH) JUDGE amit Signature Not Verified Signed by: AMIT KUMAR Signing time: 2/24/2024 3:31:37 PM