Chattisgarh High Court
Rahul Pandey vs State Of Chhattisgarh on 24 September, 2021
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
M.Cr.C. No.6828 of 2021
Rahul Pandey S/o Rajeshwar Pandey Aged About 29 Years R/o Kanpur
Road, D. S. 82 Sector D, LDA Basti ADA Colony, Lukhnau Uttar Pradesh
P. S. Isha Nagar, District Lukhnau Uttar Pradesh Presently Residing At
Dindayal Colony, Mangla Chowk Bilaspur Chhattisgarh
---- Applicant
Versus
State Of Chhattisgarh Through Police Station Kondagaon, District-
Kondagaon Chhattisgarh
---- Non-applicant
For Applicant : Mr. T.K. Jha, Advocate
For Non-applicant/State : Ms. Shivali Dubey, Panel Lawyer.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order on Board
24-09-2021Sd\
Heard.
1.
This is the first bail application filed under Section 439 of the Cr.P.C for
grant of regular bail to the applicant who has been arrested on
21.08.2021, in connection with Crime No.304/2021, registered at Police
Station-- Kondagaon, District- Kondagaon C.G. for offence punishable
under Section 20(B)(II C) of N.D.P.S. Act.
2. It is submitted by the learned counsel for the applicant that the applicant
is innocent and has been falsely implicated in this case. The applicant
was traveling in a bus. When the bus stopped, the applicant got down
for urination, there he saw a car parked and the policeman present
around it. When the applicant made some enquiry, he was nabbed in as
a person in possession of the car. The car and the contraband seized
from that car does not belong to this applicant. The vehicle seized has
its registeration in Raipur, whereas, the applicant is resident of Bilaspur.
It is also submitted that Section 42 of N.D.P.S. Act was not complied
with in this seizure, in which it is mandatory for the officer to obtain a
search warrant for the search of a conveyance. Therefore, the case
against this applicant is full of fault.
3. Relying on the judgment of Supreme Court in the case of Boota Singh &
Ors. Vs. State of Haryana in Criminal Appeal No.421/2021 decided on
16.04.2021, in which it is held that the vehicle belong to the accused is a
private vehicle and that does not come within the definition of public
place as explained in Section 43 of N.D.P.S. Act. Therefore, in such a
case, the warrant for search was necessary. It is further stated that the
rigors of the provision under Section 37 of N.D.P.S. Act are not
excessive as they are described.
4. Relying on the judgment of Supreme Court in the case of Union of India
Vs. Shiv Shanker Kesari reported in Laws (SC) 2007 9 79, in which it is
held that the Court has to consider about the substantial probable cause
for believing that the accused is not guilty of the offence charged.
Therefore, the circumstances that are present in this case clearly show
that it can be believed that the applicant is not the person who has
committed the offence, hence, it is prayed that this application may be
allowed.
5. Learned counsel for the State/non-applicant opposes the application
and submits that the applicant was the person, who was found in
possession of car and the contraband. The procedure of search and
seizure has been done by the Investigation Officer in accordance with
the provisions of N.D.P.S. Act. When notice was served upon the
applicant, he did not make any objection that he is not the person in
possession of the car and the contraband and he gave consent for his
own search and the search of the car and in that search, the applicant
was found in possession of the huge quantity of contraband, which was
more than commmercial quantity, therefore, there is a prima facie case
present against this applicant and there is no ground to draw the
conclusion that the applicant may not be the person, who has committed
the offence. It is prayed that the application may be rejected.
6. I have heard learned counsel for the parties and perused the case diary.
7. According to the prosecution case, on the incident, Police Station
Kondagaon received a confidential information regarding transport of
contraband in a car. One Tata Indigo ECS bearing registeration No.CG
10 NB 9324 was stopped. The person in the driving seat introduced
himself as Rahul Pandey, who is the applicant. After completing the
formalities of search according to the N.D.P.S. Act, the contraband
Ganja was found in his possession, on weighing the contraband total
weight was found to be 45.800 kg. which was seized from this applicant.
Hence, this case.
8. Considered on the submissions. As submitted by learned counsel for the
applicant that the applicant was not the person in the car, is a ground of
his defence and there is nothing present in the case diary to support this
submission. The other ground regarding the probability is this that the
car was registered in R.T.O., Raipur by itself does not create any stand
in favour of the applicant as the applicant was found in the driving seat
of the car. Section 42 of N.D.P.S. Act empowers the officer, as
mentioned in the provision to enter into and search in conveyance or
place. The definition of conveyance under Section 2 (VIII) of N.D.P.S.
Act includes a vehicle that is a car as well. Even if it is considered that
the conveyance cannot be regarded as the public place. If the same
when found in public place can be searched by a police officer or any
other officer having such authority under Section 42 of the Act, 1985.
Whether the non-compliance of formalities throws away the case, can
considered only by the trial Court.
9. The stringent provision under Section 37 of N.D.P.S. Act has to be
followed in granting bail in which firstly, the public prosecutor has to be
given the opportunity to oppose the application and secondly that the
Court has to be satisfied that there are reasonable grounds for believing
the accused is not guilty of the offence committed. On perusal of the
case diary, I do not find any reasonable ground present on the basis of
which it can be held that the applicant may not have committed the
offence, otherwise, the facts present are clearly against the applicant,
Therefore, I am of this view that it is not a fit case for grant of bail to the
applicant.
10. Consequently, this application filed by the applicant under Section 439
of the Cr.P.C. for grant of regular bail is hereby rejected.
11. Certified copy as per rules.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Monika
