Mohd. Atikur Rahman vs State Of Chhattisgarh
2022 Latest Caselaw 6180 Chatt

                                                               NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                          MCRC No. 4566 of 2022
 Chhotu Yadav S/o Dwarika Prasad Yadav Aged About 23 Years R/o
 Gersa, Police Station Lundra, District Surguja Chhattisgarh.
                                                         ---- Applicant
                                 Versus
 State Of Chhattisgarh Through S.H.O., Police Station Batauli, District
 Surguja Chhattisgarh.
                                                      ---- Respondent

Along with MCRC No. 5586 of 2022 Mohd. Atikur Rahman S/o Shri Rahamtulla Ansari Aged About 42 Years R/o Uchari Ward No. 01, Gadhwa (Jharkhand)

---- Applicant Versus State Of Chhattisgarh Through The Station House Officer, Police Station Batauli, District : Surguja (Ambikapur), Chhattisgarh

---- Respondent

For the Applicant/s :-

Shri Sanjay Pathak, Advocate (MCRC No.4566/2022) Shri Neeraj Mehta, Advocate (MCRC No.5586/2022) For the State :- Shri Adil Minhaj, G.A.

_____________________________________________________

Hon'ble Shri Justice Sachin Singh Rajput,

Order on Board 11.10.2022

1. Since both applications are arising out of the same crime

number, therefore, they are being disposed of by common order.

2. The applicants have preferred these first bail applications under

Section 439 of Cr.P.C. as they have been arrested in connection

with Crime No.45/2022 registered at Police Station Batauli,

District Surguja (C.G.) for the offence punishable under Section 21 (C) of Narcotic Drugs and Psychotropic Substances Act,

1985, (for short 'NDPS Act').

3. The case of the prosecution in brief is that the

accused/applicants and other co-accused seized 93 bottle of

cough syrup in which 73 bottle Eskuf Cough Syrup containing

Codeine Phosphate Clorpheniramin Meleat and 20 bottle

Codectuss TR Cough Syrup containing Tripoledine Hydrocloride

and Codeine Phosphate, containing 100 ml each total quantity

is 9300 ml. i.e. 9.300 liter from the joint possession of the

present applicants and other co-accused namely Yogesh Porte

and registered the FIR against the present applicant and other

co-accused for the offence under Section 21 (C) of the NDPS

Act.

4. Shri Sanjay Pathak, counsel for the applicant in MCRC No.

4566 of 2022 submit that there are three accused persons in the

present crime number and seizure of 93 bottles of cough syrup

was seized from the joint possession of the present applicant

i.e. Chhotu Yadav and co-accused Yogesh Porte. He submits

that seizure witnesses have been examined and those who are

witnesses of the entire prosecution proceedings and they have

not supported the case of the prosecution. He further submits

that co-accused Yogesh Porte has been enlarged on bail by the

co-ordinate Bench of this Court vide MCRC No. 7676 of 2022

on 16/09/2022 and the case of the present applicant is on the

similar footing, therefore, since seizure witnesses have not

supported the case of the prosecution the possibility of the conviction of the present applicant is very remote and there are

reasonable ground to believe that the applicant has not

committed any crime and he is not guilty. He further submits that

according to instructions there is no criminal antecedent of the

present applicant, therefore, the possibility of being involved in

similar nature of offence while granting bail is ruled out. So

provisions of Section 37 of the NDPS Act could not come into

play and therefore on the ground of parity also the application

may be allowed.

5. Shri Neeraj Mehta, counsel for the applicant in MCRC No. 5586

of 2022 submit that the name of present applicant appeared

only on the basis of memorandum statement of co-accused

recorded under Section 67 of the NDPS Act. He submits that

applicant is running in medical shop and in view of the judgment

in the matter of Tofan Singh Vs. State of Tamil Nadu, [2021]

4 SCC 1 and also the judgment of State of State By (NCB)

Bengaluru Versus Pallulabid Ahmad Arimutta & Anr . 2022

Live Law (SC) 69, the confessional statement made under

Section 67 is not admissible in evidence. He also adopts the

arguments of the counsel for the co-accused. He further submits

that though there is a case of similar nature registered against

the present applicant but that case is totally false while in

custody in the other case Police in the present crime number

has arrested him. He submits that he is running a medical shop

by any means the Police is trying to keep in behind the bar.

Apart from these cases there is no criminal antecedent of the present applicant and possibility of he being involved in the

similar nature of crime in future is ruled out.

6. On the other hand learned counsel for the State opposes the

bail application and submits that merely because seizure

witnesses have not supported the case of the prosecution the

entire prosecution case cannot be thrown away. He submits that

the law in this regard is very clear that in the cases of these

nature conviction can be sustained on the basis of other witness

including the statement of the investigating officer if it inspire

confidence. She further goes on to submit that the quantity so

seized from the accused applicant Chhotu Yadav and Yogesh

Porte is commercial quantity, therefore, bar under Section 37 of

the NDPS Act will come into play and the twin conditions

specified under Section 37 of the NDPS Act is not fulfilled in the

present case and therefore their application is liable to be

rejected.

7. Heard learned counsel for the parties. Considered their rival

submissions. It is to be seen that the quantity so seized this is

the commercial in nature. However, at this stage it is to be seen

that co-accused Yogesh Porte whose joint possession the

contraband was seized has been enlarged on regular bail by

this Court vide MCRC No. 7676/2022 and the case of the

applicant Chhotu Yadav is on the same footing, which is not

disputed by the State counsel. It is to be seen that the entire

investigation basically rested upon two witnesses namely

Jitendra Yadav and Mukesh Yadav who have been examined and from the inception till conclusion the entire investigation

have been discarded by these two independent witnesses. It is

true that the conviction can be sustained on the basis of the

statement of other police official/investigating officer, however, at

the same time it cannot be said that the other co-accused has

been enlarged on bail, therefore, the case of the present

applicant Chhotu Yadav appears to be on the same footing and

benefit of bail cannot be denied on the submissions made by

counsel for the State. So far as the applicant Mohd. Atikur

Rahman is concerned the judgment passed in Special Leave to

Appeal (Crl.) No. 242 of 2022 arising out of Diary No. 22702 of

2020 State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta

& Anr. Para 10 is relevant and quoted below:-

"10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16 th September, 2019, 14th January, 2020, 16th January, 2020, 19th th December, 2019 and 20 January, 2020 passed in SLP (Crl.) [email protected] Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773- 74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."

8. The case is against the applicant Mohd. Atikur Rahman is only placed on the basis of confessional statement made by the applicant Chhotu Yadav and admittedly no recovery was affected from him and the State counsel could not dispute the fact that the applicant Mohd. Atikur Rahman was running a medical shop with a license. So far as the other case is concerned the submission of the counsel for the applicant appears to have some force as he submits that the present crime was registered while the applicant was in custody only on the basis of memorandum of co-accused.

9. In view of the above discussion, this Court is of the considered opinion that the twin conditions as prescribed under Section 37 of the NDPS Act appears to have been satisfied and the applicants are in jail since 11/04/2022. In view of the above, this Court consider it to be a fit case for grant of bail to the applicants, therefore, the applications are allowed and it is directed that applicants shall be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty thousand only) each with one surety each for the like amount to the satisfaction of the concerned trial Court. They shall appear before the trial Court on each and every date given by the said trial Court, till disposal of the trial.

10. It is made clear that the observation made hereinabove is only for the purposes of deciding the bail application. The trial Court will decide the case on its own merits without being influenced by any observation made herein-above.

11. It is also made clear that the State is at liberty to move an application regarding cancellation of bail of the applicants in the event of applicants are found involved in any other case of similar nature.

Sd/-

(Sachin Singh Rajput) Judge

Kamde