Mohd. Atikur Rahman vs The State Of Chhattisgarh
2023 Latest Caselaw 1073 Chatt

                                              Order Reserved on 06.01.2023
                                            Order Pronounced on 20.02.2023
                                                                     NAFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                            MCRC No. 7740 of 2022
      Mohd. Atikur Rahman S/o Shri Rahamtulla Ansari Aged About 45
      Years R/o Uchari, P. S. Gadhwa (Jharkhand)

                                                               ---Applicant
                                   Versus
      The State Of Chhattisgarh Through The Aarkshi Kendra, Ambikapur, District
      Surguja Chhattisgarh
                                                        ----Non-applicant

                           MCRC No. 10148 of 2022

      Kishun Ram @ Bablu Thakur S/o Kewal Ram Aged About 38 Years
      Caste Nai, R/o Village Godbeera, P.S. And Tahsil Lundra, District
      Surguja (C.G.)
                                                              ---Applicant
                                  Versus
      State Of Chhattisgarh Through Police Station Ambikapur, District Surguja
      (C.G.)
                                                       ----Non-applicant
                           MCRC No. 10472 of 2022

      Vikas Das @ Munna S/o Dhanushdhari Panika Aged About 20 Years
      (Wrongly Mentioned In Order Sheet As Dhanukdhari Panika), R/o
      Bariyon, P.S. Rajpur, District Balrampur, (C.G.)

                                                               ---Applicant
                                   Versus
      State Of Chhattisgarh Through S.H.O. Police Station Ambikapur,
      District Surguja, (C.G.)
                                                          ----Non-applicant

                           MCRC No. 10930 of 2022

      Mohd. Aslam S/o Mohd. Sarif, Aged About 38 Years R/o Mominpura,
      Parradand, Ambikapur, Dist. Surguja, Chhattisgarh
                                                               ---Applicant
                                   Versus
      State Of Chhattisgarh Through The Station House Officer, Police
      Station Ambikapur, Dist. Surguja, Chhattisgarh.

                                                           ----Non-applicant
For Applicants    Shri Neeraj Mehta, Shri Akath Kumar Yadav, Shri Pushkar
                  Sinha and Shri Jitendra Shrivastava, respective
                  Advocates
For State         Ms. Binu Sharma, P.L.
                                 CAV Order

                  Hon'ble Shri Justice Sachin Singh Rajput

   1.

Since all the applications are arising out of the same crime number, therefore, they are being disposed of by a common order.

2. The applicants have preferred the first bail applications under Section 439 of CrPC for grant of regular bail as they have been arrested in connection with Crime No.269/2022 registered at Police Station Ambikapur, District Surguja (C.G.) for the offence punishable under Sections 21(C), 29 & 27 A of NDPS Act.

3. Case of the prosecution, in short, is that on 29/03/2022 on the basis of a secret information, 125 bottles of cough syrup containing 100 ml each were seized from the applicants, which led to registration of the aforesaid offences against the applicants.

4. Counsel for the applicant in MCRC No.7740/2022 submits that applicant has been falsely implicated and he has not committed any crime. The applicant is implicated by the Police whereas he runs a medical shop. It is submitted that the other co-accused namely Mohd. Arif Khan, Ranjeet Choudhari and Ravi Kumar Rajwade have been extended benefit of regular bail. Counsel for the applicant submits that complaint with regard to false implication was also made to the higher official of the Police by the brother of the present applicant, which goes to show that despite of having a license, he has also been implicated. Counsel for the applicant submits that applicant is ready and willing to comply with any of the conditions which may be imposed. He is in jail since 29/03/2022, charge-sheet has already been filed, trial is likely to take some time. Counsel for the applicant further submits that in similar nature of case in MCRC No. 3022/2022 dated 10/05/2022, benefit of regular bail was granted to the accused on the ground that he was running medical shop, therefore, since the applicant is running medical shop, he may be granted bail.

5. Counsel for the applicant in MCRC No.10148/2022 submits that co-accused who have been enlarged on bail vide order dated 01/08/2022 in MCRC No.4120/2022, MCRC No.5416/2022 and MCRC No. 6552/2022, against them similar allegations were there and the case of the present applicant cannot be differentiated because his name has been mentioned only on the memorandum statement of the co-accused. He further submits that he is not involved in selling of the contraband and no investigation has been conducted by the Police in this regard.

6. Counsel for the applicant in MCRC No.10472/2022 submits that only on the strength of memorandum of co-accused present applicant has been arrayed as an accused and mandatory Provisions of NDPS Act has not been complied with and no contraband was seized from the conscious possession of the present applicant, therefore, the application may be allowed.

7. Counsel for the applicant in MCRC No. 10930/2022 submits that only on the basis of memorandum statement of co-accused, the name of the applicant surfaced in the investigation, no recovery was made from the exclusive/conscious possession of the applicant. He submits that even the police has not collected any clinching evidence to suggest that the present applicant was involved in selling of the contraband. In support of his submissions, he relied upon the judgment of Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 and also judgment of Hon'ble Bombay High Court in the matter of Rhea Chakraborty vs. Union of India, 2020 SCC Online Bom 990.

8. Counsel for the State opposes the bail application and submits that the contraband so seized from the possession of the applicant Mohd. Atikur Rahman is in commercial quantity and at this stage, it cannot be considered that he was having a drug license for running a medical store and it can not be said that he has not committed any crime. The submission of the counsel for the applicant can be looked into at the time of trial and it will not be considered at this stage. So far as the other co-accused is concerned, they have been arrayed as accused on the basis of memorandum statement of the co-accused Atikur Rahman and it was found that he was involved in selling of contraband after receiving the same from the accused Atikur Rahman, therefore, there is sufficient evidence of their involvement in commission of the crime and they have committed offence under Section 27 A of the NDPS Act. Therefore, bar under Section 37 A of NDPS Act would come into play.

9. Heard counsel for the parties, considered their rival submission.

10. So far as the drug license is concerned, at this stage, the arguments of the counsel for the applicant Atikur Rahman does not persuade this Court simply because he was having drug license, the offence has not been committed. From the perusal of the charge-sheet, it appears that the contraband was recovered from the conscious and physical possession of the present applicant Atikur Rahman and the Hon'ble Supreme Court has held in the case of Narcotics Control Bureau vs. Mohit Aggarwal, 2022, SCC Online SC 891. Therefore, in view of Section 37 of NDPS Act, the application of applicant - Atikur Rahman is rejected. However, liberty is reserved to him to revive the bail application after seizure witnesses are examined. So far as bail applications of the other accused are concerned, their cases cannot be differentiated from the present case and the other co-accused namely Mohd. Arif Khan, Ranjeet Choudhari and Ravi Kumar Rajwade have been extended the benefit of bail, therefore, their applications on the strength of earlier order are allowed.

11. Accordingly, the bail applications of applicants namely Kishun Ram @ Bablu Thakur in MCRC No.10148/2022, Vikas Das @ Munna in MCRC No.10472/2022 and Mohd. Aslam in MCRC No. 10930/2022 are allowed and the applicants are directed to be released on bail on each of them furnishing a bond in the sum of Rs.50,000/- each with one solvent surety for the like sum to the satisfaction of the concerned Court for their appearance before that Court as and when so directed.

12. The observations made hereinabove are only for the purpose of deciding the bail applications and the trial Court will decide the case on its own merits without being influenced by the same.

13. Certified copy as per rules.

Sd/-

Sachin Singh Rajput Judge Kamde