Neeraj Yadav vs State Of Chhattisgarh
2023 Latest Caselaw 955 Chatt

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                                                                            NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR
                             MCRC No. 11052 of 2022

• Jitendra Yadav S/o Late Chintamani Yadav Aged About 32 Years R/o Bhatko,
  Langrupara, Police Station Batouli District Suruguja, District : Surguja
  (Ambikapur), Chhattisgarh

                                                                     ---- Applicant

                                   Versus

• State Of Chhattisgarh Through Station House Officer, Police Station Batouli,
  District : Surguja (Ambikapur), Chhattisgarh

                                                                  ---- Respondent

&

MCRC No. 992 of 2023

• Neeraj Yadav S/o Bhuneshwar Yadav Aged About 26 Years R/o Narmadapur Police Station Kamleshwarpur, District : Surguja (Ambikapur), Chhattisgarh

---- Applicant

Versus

• State Of Chhattisgarh Through Station House Officer, Police Station Batouli, District : Surguja (Ambikapur), Chhattisgarh

---- Respondent

&

MCRC No. 139 of 2023

• Rajnish Yadav S/o Late Krishna Prasad Yadav Aged About 40 Years R/o Chalani, Police Station Sanna, District - Jahspur (C.G.)

---- Applicant

Versus

• State Of Chhattisgarh Through Police Station Batouli, District - Surguja (C.G.)

---- Respondent

&

MCRC No. 216 of 2023

• Mukesh Yadav S/o Late Jawahar Yadav Aged About 25 Years R/o Village Bhatko, Lagrupara, P.S. Batouli District Surguja (C.G.)

---- Applicant

Versus

• State Of Chhattisgarh Through Station House Officer, P.S. Batouli District Surguja (C.G.)

---- Respondent

For respective Applicants : Shri Manoj Paranjpe and Shri Nishikant Sinha, Advocates

For State : Shri B.P.Banjare, Dy.G.A. and Shri Roshan Dubey, Panel Lawyer

Hon'ble Shri Justice Sachin Singh Rajput

Order On Board

15/02/2023

Since all the above bail applications are arising out of same crime number, they are being disposed off by this common order.

1. The applicants have been arrested in connection with Crime No.148/2022 registered at Police Station - Batauli, District - Surguja (C.G.) for alleged commission of offences under Section 21 (C), 27 (A), 29 of NDPS Act.

2. Prosecution case, in brief, is that the applicants and other co-accused were found traveling with 10 bottles of RC - Kuff syrup of 100 ml each and 40 bottles of Codectus cough syrup of 100 ml each, of which, they did not produce any valid documents.

3. Learned counsel for the applicant - Rajnish Yadav in MCrC No.139/2023 vehemently argued that investigation in this case is complete, charge sheet has been filed and the applicant is in jail since 02/11/2022. It is further submitted that there are six accused persons in this case and five of them are before this Court. From applicant - Jitendra Yadav, 10 bottles of RC - Kuff syrup and from applicant - Aslam Khan, 40 bottles of Codectus cough syrup were recovered. They were given notice under Section 67 of NDPS Act and their statements were recorded on 02/11/2022, in which, accused Jitendra Yadav and Aslam Khan stated that the said contraband was purchased by them from the shop of the present applicant i.e. Rajnish Yadav. Thereafter, the police recorded confessional statement of the applicants under Section 67 of the NDPS Act and the applicant was arrested. He further submits that apart from memorandum statement of co-accused and confessional statement of the applicant under

Section 67 of NDPS Act, there is no admissible evidence against the present applicant to connect him with the alleged crime. He submits that there is no material evidence collected by the prosecution to implicate the present applicant under Section 27 (A) and Section 29 of the NDPS Act. He places reliance on the decision of the Supreme Court in the case of Tofan Singh v. State of Tamilnadu, (2021) 4 SCC 1, particularly the paragraph which is as under -

"1. ..................After hearing arguments from both the sides, the Court recorded that the appellant in Criminal Appeal No.152 of 2013 had challenged his conviction primarily on three grounds, as follows:

24.1. The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value inasmuch as:

(a) The statement was given to and recorded by an officer who is to be treated as "police officer" and is thus, hit by Section 25 of the Evidence Act.

(b) No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements. Thus, the statement recorded under this provision is akin to the statement under Section 161 CrPC.

(c) In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence."

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158. We answer the reference by stating :

158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

As such, the rider under Section 37 of NDPS Act would not come into play against the present applicant. So far as involvement of the present applicant with regard to Section 27-A of NDPS Act, he submits that there is no clinching evidence to connect the present applicant with the alleged offence. He places reliance on the judgment of Hon'ble Bombay High Court in the case

of Rhea Chakraborty v. Union of India, reported in 2020 SCC Online Bom 990, in which, it has been observed as under -

"73. Thus, "financing" as generally understood, is offering monetary support or provide funds.

74. Therefore, simply providing money for a particular transaction or other transactions will not be financing of that activity. Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it. It is the financial support which directly or indirectly is cause of existence of such illicit traffic. The word "financing" would necessarily refer to some activities involving illegal trade or business.

78. Section 2(xxix) of NDPS Act also permits use of Cr.P.C. to assign meaning to words and expressions. The Hon'ble Supreme Court mainly discussed whether mens rea was applicable. Even in Section 27A of NDPS Act, the concept of mens rea is applicable. Section 52-A of IPC can be used for a limited purpose as mentioned by the Hon'ble Supreme Court. The key words in that Section are "to evade apprehension". This only means that first of all there has to be another offender who has committed the offence. The person who is charged with harbouring that main offender should have supplied him with shelter, food etc.; and then the next requirement is that that second person should have done this to prevent the main offender's apprehension. In the present case, no criminal case or FIR was pending against Sushant Singh Rajput. He was residing in his own house and was spending for his own food and other necessities. At that point of time, he had no apprehension of any arrest. Therefore, the act on the part of the Applicant cannot be stretched to attract the allegation of harbouring Sushant Singh Rajput.

79. Another important word in Section 27A is "engaged". The offence of harbouring is attracted when a person harbours the persons "engaged" in the activities mentioned in Section 2(viiia) (i) to (v). The Black's Law Dictionary gives the meaning of the word "Engaged" as 'to employ' or 'involve oneself'; 'to take part in'; 'to embark'. Thus, if Section 27A is read in its entirety, it indicates that financing is in respect of illicit traffic through which the financer expects monetary or other returns. In the same context, Section 27A makes harbouring a punishable offence. Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities."

(emphasis supplied)

As such, there is admissible evidence against the present applicant and therefore, the application may be allowed.

Shri Nishikant Sinha, counsel for the applicant - Jitendra Yadav in MCrC No.11052/2022 submits that only 10 bottles of RC - Kuff syrup has been recovered from his possession which is not in commercial quantity. Similarly, there is no evidence of offence under Section 27-A of the NDPS Act. Therefore, he may be considered for grant of bail.

So far as applicant - Neeraj Yadav and Mukesh Yadav are concerned, he submits that the only evidence against these applicants is that there is memorandum statement and confessional statement under Section 67 of the NDPS Act, which is not admissible in evidence. He adopts the submission of Shri Manoj Paranjpe and also placed reliance on the decision of the Supreme Court in the case of Tofan Singh (supra) and judgment of Hon'ble Bombay High Court in the case of Rhea Chakraborty (supra).

4. On the other hand, learned State counsel opposes the bail application and submits that recovery of 10 bottles of RC-Kuff syrup was effected from the possession of the applicant - Jitendra Yadav, though not in commercial quantity. Statement of applicants were recorded under Section 67 of NDPS Act. Therefore, prima facie, their involvement is made out. However, apart from statement under Section 67 of NDPS Act, there is no evidence collected by the prosecution and it is also submitted that the applicants have no criminal antecedents.

5. I have heard learned counsel for the parties and perused the case diary.

6. Considering the facts and circumstances of the case, nature of allegations, decisions cited, charge sheet has been filed, detention period and no criminal antecedents as per State counsel, I am inclined to grant bail to the applicants.

7. Accordingly, the applications are allowed. It is directed that the applicants

- Jitendra Yadav, Rajnish Yadav, Neeraj Yadav and Mukesh Yadav shall be released on bail on each of them furnishing a personal bond in the sum of Rs.50,000/- along with one surety for the like amount to the satisfaction of the trial Court on the condition that -

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

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

Certified copy as per rules.

Sd/ Sd/-

(Sachin Singh Rajput ) Judge Deepti