Shireesh Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 3972 MP

                                                                        1                           MCRC-27012-2021
                                              The High Court Of Madhya Pradesh
                                                        MCRC-27012-2021
                                                     (SHIREESH KUSHWAHA Vs THE STATE OF MADHYA PRADESH)


                                       Jabalpur, Dated : 05-08-2021
                                             Heard through Video Conferencing.

                                             Shri Vivek Lakhera, counsel for the applicant.
                                             Shri M.K. Jha, PL for the respondent/State.

Case diary perused.

T h is is the second application filed under section 439 Cr.P.C.

Applicant Shireesh Kushwaha was arrested on 21/11/2019 in Crime No. 537/2019 registered at Police Station Amarpatan, Distt. Satna (MP) for the offence punishable under Sections 8B/21, 22 of the N.D.P.S. Act, 1985 and Section 5/13 of M.P. Drug Control Act, 1949 and Section 120-B of the IPC.

Earlier bail application of the applicant was dismissed on merits by this Court vide order dated 3/12/2020 passed in MCrC no.11661/2020.

A s per prosecution case, on 20/11/2019 on the information of the informant that 6-7 persons are going to Rewa from Maihar side on a pickup, a c ar and one motorcycle and they were illegally transporting Corex Syrup,

Rajendra Mishra, SHO P.S. Amarpatan along with police force went to village Paraswahi, Maihar and waited for the vehicles. Some time later, a car bearing registration No. MP-17CC-3383, one pick up van bearing registration No. MP-38G-0764 and one motorcycle bearing registration No. MP-17MR-1214 came there. They stopped the vehicles. The pick up van was being driven by co-accused Ravi Chourasiya and co-accused Abhishek Sen and Rajesh Sondhiya were also traveling in that vehicle. The Car was being driven by co- accused Umesh Sen and applicant Shireesh was also travelling in that vehicle. The motorcycle was being driven by co-accused Rishabh Pandey. On searching, the pick up van bearing registration No. MP-38G-0764, 4800 bottles of Onerex Cough Syrup and car bearing registration No. MP-17CC- 3383, 600 bottles of Onerex Cough Syrup total 5400 bottles Onerex Cough Signature Not Verified SAN Syrup containing codeine phosphate were found which was illegally being Digitally signed by MONIKA CHOURASIA Date: 2021.08.06 15:23:43 IST 2 MCRC-27012-2021 carried by the applicant and co-accused Ravi Chourasiya, Rishabh Pandey, Rajesh Sondhiya, Abhishek Sen and Umesh in the Pick Up Van and Car.

Learned counsel for the applicant submits that the applicant is innocent a n d has falsely been implicated in this case. He further submitted that statements of independence witness of the seizure memo have been recorded

by the trial Court. They did not support the prosecution story and turned hostile. The applicant has been in custody since 21/11/2019. Charge sheet has been filed and the conclusion of trial will take time, hence prayed for release of the applicant on bail.

Learned counsel for the respondent/State opposed the prayer and submitted that the applicant was also involved in the crime. Police seized 4800 bottles Onerex Cough Syrup containing codeine phosphate from the possession of co-accused Ravi Chourasiya and 600 bottles of Onerex Cough Syrup from the possession of co-accused Umesh Sen. He further submitted that codeine phosphate is manufactured drug. Applicant and other co- accused had no documents in their possession to disclose as to for what purpose such a huge quantity of Onrex Cough Syrup containing narcotic substance was being transported, so their act clearly comes under the provisions of 8/21 of NDPS Act. Therefore, looking to the provisions of Section 37 of NDPS Act, applicant should not be released on bail.

Hon'ble Apex Court in the case of State of Punjab Vs. Rakesh Kumar, 2018 SCC OnLine SC 2651 after relying earlier judgment of Hon'ble Apex Court passed in the case of Union of India Vs. Sanjeev V. Deshpande, (2014) 13 SCC 1 held that dealing in narcotic drugs and psychotropic substances is permissible only when such dealing is for medical purposes or scientific purposes. Further, the mere fact that the dealing in narcotic drugs and psychotropic substances is for a medical or scientific purpose does not by itself lift the embargo created under Section 8(c). Such a dealing must be in the manner and extent provided by the provision of the

Signature Not Verified SAN Act, rules or orders made thereunder. Sections 9 and 10 enable the Central

Digitally signed by MONIKA CHOURASIA Date: 2021.08.06 15:23:43 IST 3 MCRC-27012-2021 and the State Governments respectively to make rules permitting and regulating various aspects (contemplated under Section 8(c), of dealing in narcotic drugs and psychotropic substances).

I n light of the above judgement of the Apex Court, henceforth, if anyone is found in possession of cough syrup or medicine containing Codeine Phosphate without valid documents, then the case will come under the stringent provisions of the NDPS Act.

The Apex Court in the case of Heera Singh Vs. Union of India, 2020 SCC Online SC 382 held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to

be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances.

The earlier bail application of the applicant was dismissed on merits by this Court vide order dated 3/12/2020 passed in MCrC no.11661/2020. Thereafter, there has been no change in the circumstances, except the custody period. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director reported in (2007) 1 SCC 70 held that bail, can not be granted solely on the ground of long incarnation in jail and inability of accused to conduct the defence. Apex Court in the case of State of M.P. v. Kajad, (2001) 7 SCC 673 observed "It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and various other judgments."

It is alleged that the police seized 4800 bottles of Onerex Cough Syrup from pick up van bearing registration No. MP-38G-0764 and 600 bottles of Signature Not Verified SAN

Digitally signed by MONIKA CHOURASIA Date: 2021.08.06 15:23:43 IST 4 MCRC-27012-2021 Onerex Cough Syrup from car bearing registration No. MP-17CC-3383 total 5400 bottles of Onerex Cough Syrup containing codeine phosphate and the applicant was travelling in that car which clearly shows that applicant was also involved in the crime. Codeine phosphate is manufactured drug. Applicant and other co-accused had no documents in their possession to disclose as to fo r what purpose such a huge quantity of Onrex Cough Syrup containing narcotic substance was being transported. So, looking to the huge quantity of Onrex Cough Syrup which was seized by the police and the provisions of Section 37 of NDPS Act, this Court is not inclined to grant bail to the applicant.

Hence, the bail application is rejected.

(RAJEEV KUMAR DUBEY) JUDGE

m/-

Signature Not Verified SAN

Digitally signed by MONIKA CHOURASIA Date: 2021.08.06 15:23:43 IST