P. Laxman vs Union Of India
2021 Latest Caselaw 1578 MP

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            THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.10079/2021
                  P. Laxman Vs. Union of India

Jabalpur, Dated : 27-04-2021

       Shri Sourabh Bhushan Shrivastava, Counsel for the applicant.

       Shri Jinendra Jain, Assistant Solicitor General for the

respondent-Union of India.

Heard finally through Video Conferencing.

Case diary is available.

This first application under Section 439 of Cr.P.C. has been

filed for grant of bail.

The applicant has been arrested on 20.06.2020 in connection

with Crime No.03/2020 registered at Police Station - Narcotics

Control Bureau, Indore for offence under Section 8/20(B)(ii)(C), 25,

27-A, 28 read with Section 29 of Narcotic Drugs and Psychotropic

Substances Act, 1985.

It is submitted by the counsel for the applicant that one Truck

was stopped by the Investigating Officer and 474 kg of Ganja was

seized. It is submitted that the Truck was being driven by the co-

accused Sonu and on the basis of confessional statement of Sonu, the

applicant has been arrested from a Dhaba. It is submitted that in the

light of the judgment passed by the Supreme Court in the case of

Tofan Singh Vs. State of Tamil Nadu passed in Cr.A. No. 152/2013

on 29.10.2020, the confessional statement made under Section 67 of

NDPS Act is not admissible. It is further submitted that there is no

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

admissible evidence against the applicant. The applicant is ready and

willing to abide by any stringent condition, which may be imposed by

this Court including that of furnishing cash surety. The Trial is likely

to take sufficiently long time and there is no possible of his

absconding or tampering with the prosecution case.

Per contra, the application is vehemently opposed by the

Counsel for the respondent. It is submitted by the counsel for the

respondent that the Supreme Court in the case of Tofan Singh

(Supra) has not held that the statement under Section 67 of NDPS

Act is not admissible. It is submitted that it has been merely held that

on the basis of statement of the co-accused recorded under Section 67

of NDPS Act, an accused can not be convicted. It is further

submitted that the applicant had talked to the co-accused Sonu on his

mobile for 13 occasions, however, fairly conceded that the call details

have not been collected so far.

Be that whatever it may.

The Supreme Court in the case of Tofan Singh (Supra) has

held as under:-

"155.We answer the reference by stating:

(i) 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

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

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."

Thus, the submissions made by the counsel for the respondent

that the Supreme Court has not held that the statement recorded

under Section 67 of NDPS Act is not admissible, cannot be accepted

being contrary to the judgment.

So far as the call details are concerned, it is really surprising

that on one hand, counsel for the respondent has claimed that the call

details have not been collected so far and on the other hand, he is

making a statement that it has been mentioned in the complaint that

the co-accused Sonu had talked to the applicant for 13 times.

Be that whatever it may.

In the light of the judgment passed by the Supreme Court in the

case of Tofan Singh (Supra), this Court is of the considered opinion

that the confessional statement made by the co-accused Sonu under

Section 67 of NDPS Act or under Section 27 of Evidence Act is not

admissible and cannot be used against the present applicant.

Undisputedly, the present applicant was not found in the Truck. On

the contrary, it is the case of the prosecution itself that he was sitting

in the Dhaba, from where he was apprehended.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

Considering the facts and circumstances of the case, this Court

is of the considered opinion that the applicant can be released on

stringent condition only.

The Supreme Court by order dated 23-3-2020 passed in the

case of IN RE : CONTAGION OF COVID 19 VIRUS IN

PRISONS in SUO MOTU W.P. (C) No. 1/2020 has directed all the

States to constitute a High Powered Committee to consider the

release of prisoners in order to decongest the prisons. The Supreme

Court has observed as under :

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID - 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

Considering the allegations, as well as considering the fact that

in view of second wave of Covid19 pandemic, it is also necessary to

decongest the jail, and without commenting on the merits of the case,

it is directed that the applicant be released on bail, on furnishing cash

surety of Rs. 1,00,000 (Rs. One Lac) to the satisfaction of the Trial

Court or C.J.M. or Remand Magistrate (Whosoever is available).

The applicant shall also furnish an undertaking that he shall follow

all the instructions which may be issued by the Central Govt./State

Govt. or Local Administration (General or Specific) from time to

time for combating Covid19.

The Supreme Court in the case of IN RE : CONTAGION OF

COVID 19 VIRUS IN PRISONS by order dated 7-4-2020 has

directed as under :

In these circumstances, we consider it appropriate to direct that Union of India shall ensure that all the prisoners having been released by the States/Union Territories are not left stranded and they are provided transportation to reach their homes or given the option to stay in temporary shelter homes for the period of lockdown.

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

For this purpose, the Union of India may issue appropriate directions under the Disaster Management Act, 2005 or any other law for the time being in force. We further direct that the States/Union Territories shall ensure through Directors General of Police to provide safe transit to the prisoners who have been released so that they may reach their homes. They shall also be given an option for staying in temporary shelter homes during the period of lockdown.

Accordingly, it is directed that before releasing the

applicant, the jail authorities shall get the applicant examined by

a competent Doctor and if the Doctor is of the opinion that his

Corona Virus test is necessary, then the same shall be conducted.

If the applicant is not found suspected of Covid19 infection or if

his test report is negative, then the concerned local

administration shall make necessary arrangements for sending

the applicant to his house as per the directions issued by the

Supreme Court in the case of IN RE : CONTAGION OF COVID

19 VIRUS IN PRISONS (Supra) , and if he is found positive then

the applicant shall be immediately sent to concerning hospital for

his treatment as per medical norms. The applicant is further

directed to strictly follow all the instructions which may be issued

by the Central Govt./State Govt. or Local Administration for

combating Covid19. If it is found that the applicant has violated

any of the instructions (whether general or specific) issued by the

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.10079/2021 P. Laxman Vs. Union of India

Central Govt./State Govt. or Local Administration, then this

order shall automatically lose its effect, and the Local

Administration/Police Authorities shall immediately take him in

custody and would send him to the same jail from where he was

released. The applicant is further directed to supply a copy of

this bail order to the police station having jurisdiction over his

place of residence.

The other conditions of Section 437,439 Cr.P.C. shall remain

the same.

This order shall remain in force, till the conclusion of Trial. In

case of bail jump, or violation of any of the condition(s) mentioned

above, this order shall automatically lose its effect.

It is made clear that single default in appearance before the

Trial Court, or in case of registration of new offence, this bail order

shall automatically come to an end and the cash surety so furnished

by the applicant shall automatically stand forfeited without any

reference to the Court.

With aforesaid observations, this application is Allowed.

(G.S. Ahluwalia) Judge

Abhi ABHISHEK CHATURVEDI 2021.04.28 11:20:58 +05'30'