Chattisgarh High Court
Heera Singh Gadyan Singh Naik vs State Of Chhattisgarh on 18 October, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 7331 of 2022
Heera Singh Gadyan Singh Naik S/o Gyan Singh Aged Abut 50 Years
(Wrongly Mentioned As 45 Years) R/o Shevenge Pimpri, Post Chicholi
Pimpri, P.S. And Tehsil Jamner, District Jalgaon (Name And Sumame
Are Properly Mentioned In Bail And Affidavit), Maharashtra.
----Applicant
Versus
State Of Chhattisgarh Through The Police Station Bastar District
Bastar Chhattisgarh.
----Non-applicant
For Applicant Shri P.K. Tulsyan, Advocate.
For State Ms. Richa Shukla, Dy. G.A.
Hon'ble Shri Justice Sachin Singh Rajput
Order on Board
18 /10/2022
1.
The applicant has preferred this first bail application under Section
439 of Cr.P.C. as he has been arrested in connection with Crime
No.82/2018 registered at P.S. Bastar, District Bastar, C.G. for the
offence punishable under Sections 20 (b)(II-C) of the NDPS Act.
2. The case of the prosecution is that on a date of incident i.e.
28/02/2018 a offending vehicle bearing registration number M.H. 28 V
7000 was coming to the place of incident and when it was blocked by
police officials, it went a little bit ahead causing damage to public
property and two persons sitting in the vehicle ran away. When the
vehicle was searched 109.300 Kg. of contraband ganja was recovered
from the said vehicle.
3. Counsel for the applicant submits that the alleged date of incident is
28/02/2018 and the present applicant has been arrested on
14/04/2022 after a lapse of four years. He submits that the name of
the present applicant surfaced only on the basis of memorandum of
co-accused namely Rammurar Singh. He submits that the registered
owner of the vehicle is one Vinod Ramesh and there is an agreement
to sale of the said vehicle with the other co-accused Rammurar Singh.
Even the statement of registered owner Vinod Ramesh was not
recorded neither his memorandum has been recorded and merely on
the basis of some sale agreement executed way back in the year
2018 the other co-accused namely Rammurar Singh who alleged to
be the owner of the vehicle on the strength of the sale agreement has
been arrested and upon his memorandum statement which is not
admissible in evidence in view of the judgment of Tofan Singh vs
The State of Tamil Nadu, (2021) 4 SCC 1 , and order passed by
this Court in the case of Akbar Khan @ Murad Khan vs. State of C.G.
in MCRC No. 3212 of 2022 on 21/07/2022 granting bail to the
applicant. The applicant is entitled for grant of bail. He further submits
that in view of the inadmissible evidence the bar under Section 37 of
NDPS Act would not be attracted and since there is no criminal
antecedent of the present applicant, the possibility of he being
involved in any crime in future while on bail is ruled out.
4. On the other hand learned State counsel submits that the these two
persons were traveling in the offending vehicle when they were
blocked and they ran away and to that effect three eye witnesses
happens to be the police officials Head Constable Tripurari Rai, Head
Constable Sukhnath Diwan and Constable Ajit Markam statements
were recorded. She further goes on to submit that the investigation
was carried out for almost years and when the evidences against the
present applicant and co-accused were found, they have been
arrested. It is not a case that all these years the police was not
investigating the crime and simply because the applicant has been
arrested after a lapse of four years that could not a ground for grant of
bail to the applicant. So far as the memorandum of co-accused is
concerned she submits that is also peace of evidence which could be
looked into at the stage of trial particularly looking to the Section 30 of
the Evidence Act and when the statement is corroborated with the
three witnesses of the police officials who saw two persons running,
therefore there is an evidence of corroboration with the memorandum
statement of the co-accused, therefore at this stage of trial this Court
may not give a positive finding that the memorandum is inadmissible
looking to the fact that the witnesses have corroborated the happening
of incident and Section 30 of the Evidence Act would come in to play
and at this stage the memorandum cannot be discarded as
inadmissible which would be decided by the trial Court while deciding
the case.
5. Replying to this submission counsel for the applicant submits that
there was no Test Identification Parade conducted, therefore, this
corroboration would not hold any water.
6. I have heard learned counsel for the parties, considered the rival
submissions made at the bar. The main ground with regard to
inadmissibility of the memorandum statement of the co-accused can
be looked into by the trial Court particularly looking to the fact that
there are three witnesses who have seen two persons running away
and the investigation was carried out for almost four years and they
are the resident of Jalgaon (Maharashtra) and it is quite possible that
it took considerable time for the police to reach the accused persons.
Even if this Court accept the submission of the applicant that the
memorandum of co-accused is inadmissible but still apart from that
this Court has to look into the fact whether there is a possibility of
fleeing away from the trial and tampering of the evidence. At this stage
this Court is not inclined to give a positive finding with regard to the
fact whether the memorandum is admissible or not, I find some force
in the submission of the State counsel that in the event of grant of bail
and when after four years the applicant has been arrested, there is all
possibility that he may flee away from the trial. Looking to the entire
facts and circumstances, evidence so collected and no witnesses
have been examined as yet, this court is not inclined to release the
applicant on bail.
7. Accordingly, bail application is rejected.
Sd/-
Sachin Singh Rajput
Judge
Kamde
