Shubham Agrawal vs The State Of Chhattisgarh
2022 Latest Caselaw 6034 Chatt

                                        1


                                                                           NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                                MCRC No. 7826 of 2022

     • Shubham Agrawal S/o Shri Pawan Agrawal Aged About 25 Years R/o Ward
       No, 10, Old Market Bacheli, Tahsil Bade-Bacheli, Tehsil Bade-Bacheli, P.S.
       Bacheli, District Dantewada Chhattisgarh.

                                                                    ---- Applicant

                                     Versus

     • The State Of Chhattisgarh Through Station House Officer Of Police Station
       Kuakonda, District Dantewada Chhattisgarh.

                                                                ---- Respondent

For Applicant             :     Shri Shivang Dubey, Advocate
For State                 :     Shri Ishan Verma, Panel Lawyer


                  Hon'ble Shri Justice Sachin Singh Rajput

                                Order On Board

27/09/2022

The applicant has been arrested in connection with Crime No.33/2022 registered at Police Station - Kuakonda, District - Dantewada (CG) for alleged commission of offences under Section 21 of NDPS Act.

2. As per prosecution case, on 14/06/2022, during vehicle checking at forest barrier, Kuakonda, a vehicle scooty without any number plate, was intercepted and co-accused - Tilaknag S/o Dileep Nag was found transporting narcotic drugs Pyeevon spas plus Capsules - 2315 nos. Spasmo Prosyvon plus Capsules - 2831 nos., Acetaminophen Tablets (Becalm Brand) 1320 nos., Nitrazepam Tablets 300 nos. and the same were seized and on recording his memorandum, name of the present applicant appeared and it is brought on record that the applicant has paid the amount to purchase the said narcotic drugs.

3. Learned counsel for the applicant submits that the seizure was not effected from the conscious possession of the present applicant, rather, it has been recovered from the co-accused - Tilak Nag which is not admissible in

view of the judgment of the Supreme Court in the case of Tofan Singh v. State of Tamilnadu, (2021) 4 SCC 1. It is further submitted that no incriminating evidence has been collected by the prosecution to connect the present applicant with the aforesaid offence. In order to buttress his submission, he relies upon judgment of the Supreme Court in the case of Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, (2018) SCC 271 and Sujit Tiwari v. State of Gujarat and anr., (2020) 13 SCC 447 and decision of High Court of Madhya Pradesh in the case of Ishwar v. State of M.P., 2022 SCC OnLine MP 125 and Ismail Khan and anr. v. State of M.P. and other connected matters, 2019 SCC OnLine MP 944 and contended that confessional statement of the co- accused is not admissible against the present applicant and therefore, possibility of conviction of the present applicant is much less. It is next submitted that the applicant is in jail since 14/06/2022, charge sheet has been filed and trial is likely to take some time. He submits that in view of the above facts, bar under Section 37 of the NDPS Act would not attract. It is submitted that there is no criminal antecedent of the applicant. Therefore, there are reasonable grounds to believe that he will not commit any offence while on bail.

4. On the other hand, learned State counsel opposes bail application and submits that the alleged contraband has been seized from the possession of co-accused- Tilak Nag and some of the narcotic drugs is of commercial quantity and name of the present applicant surfaced only on the confessional memorandum statement of the co-accused - Tilak Nag. Therefore, bar under Section 37 of the NDPS Act would be attracted.

5. I have heard learned counsel for the parties and considered their rival submissions.

6. It is not in dispute that apart from confessional memorandum statement recorded under Section 67 of the NDPS Act, no incriminating evidence is collected by the prosecution to connect the applicant with the instant offence. It is an admitted position that seizure was not effected from the actual and concsious possession of the applicant. The same was effected from the possession of the co-accused. Therefore, considering the entire facts and

circumstances of the case, particularly considering the judgment in the case of Tofan Singh (supra), this Court is of the considered opinion that the provisions contained under Section 37 of NDPS Act appears to have been complied with.

7. Accordingly, the application is allowed. It is directed that the applicant shall be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- along with one solvent surety for the like amount to the satisfaction of the concerned trial Court on the condition that -

a) He shall appear before the Trial Court regularly on each and every date, unless exempted from appearance.

b) He shall not make any attempt to tamper with the prosecution witnesses.

This Court has not expressed any opinion on the merits of the case and observations made above are only for the purpose of deciding the bail application.

Certified copy as per rules.

Sd/-

( Sachin Singh Rajput ) Judge Deepti