Madhya Pradesh High Court
Mohd. Javid @ Javed vs The State Of Madhya Pradesh on 9 July, 2021
Author: Atul Sreedharan
1 MCRC-31755-2021
The High Court Of Madhya Pradesh
MCRC-31755-2021
(MOHD. JAVID @ JAVED Vs THE STATE OF MADHYA PRADESH)
2
Jabalpur, Dated : 09-07-2021
Heard through Video Conferencing.
Mr.Sankalp Kochar, learned counsel for the applicant.
Mr.Sachin Jain, learned Panel Lawyer for the respondent/State.
This is the second bail applications filed by the applicant under
Section 439 of the Cr.P.C. for grant of bail in connection with FIR
No.1/2021 for offences punishable under Sections 8-B, 21 and 22 of
NDPS Act and section 5/13 of M.P.Drugs Control Act registered at
P o l i c e Station-Rampur Baghelan, District-Satna, after the first
application being M.Cr.C.No.4500/2021 was dismissed as withdrawn
vide order dated 05.05.2021.
T h e applicant is in judicial custody since 15.01.2021 in the
aforementioned cases. This is the second application after the first
application being M.Cr.C.No.4500/2021 was dismissed as withdrawn
vide order dated 05.05.2021. However, it is essential to mention here
that the Court has also observed that the learned counsel for the applicant
sought to withdraw the application only after arguing for some time and
after having assessed the lack of inclination on the part of this Court to
grant bail. In this case, the applicant was arrested and from his
possession 129 bottles of Wincirex Cough Syrup and 100 bottles of
Ornex Cough Syrup, both of them containing condine, has been seized.
Learned counsel for the applicant has referred to the judgment of
the Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand and
another, (2014) 5 SCC 345. Thereafter, learned counsel for the applicant
has also drawn the attention of this Court to the order dated 02.05.2021
passed in M.Cr.C.No.98/2021, by which, this Court relying upon the
Signature Not Verified
SAN
Digitally signed by RAVIKANT KEWAT
Date: 2021.07.10 11:42:23 IST
2 MCRC-31755-2021
aforementioned judgement of the Hon'ble Supreme Court had granted bail
to the applicants therein, while doing so, this Court held that the Hon'ble
Supreme Court had laid down that a composite notice would not fulfill
the mandate of section 50 of NDPS Act and that each of the accused had
to be individually given the option of exercising their right to be searched
by a Gazetted Officer. Thereafter, the applicant has shared the notice
under section 50 of the NDPS Act that was given to the applicant in this
case, by which, the applicant and the co-accused were both given a
composite notice and, thereafter, only their signatures are there in the
bottom of the page.
Learned counsel for the State in order to clarify the ambit and
scope of the Supreme Court judgement in Permanand's case (supra) has
readout from the relevant portion of the judgement and submitted that in
that case, though there were multiple accused, ass in the present case, the
signature of only one of the accused was taken on the memorandum of
section 50 of NDPS Act. Learned counsel for the state contends that in
this particular case both the accused persons have signed the section 50
notice. Upon examining the section 50 notice which is in a printed format
with blanks left to fill in, the last three lines of which suggests that the
investigating officer gives an option to the accused that he could get
themselves searched by him or by a Gazetted Officer and if they are so
desired to get themselves searched by the Investigating Officer, they must
give their consent in writing.
Learned counsel for the applicant submits that the consent in
writing is not merely the signature of the accused persons. What is
required in such a situation is that after the notice is given, there must be
a written endorsement of each of the accused persons to the effect that
after the notice was given to them they have given the right of being
Signature Not Verified
SAN
searched to the Investigating Officer. He further submits that if such an
Digitally signed by RAVIKANT KEWAT
Date: 2021.07.10 11:42:23 IST
3 MCRC-31755-2021
endorsement is not specifically made by the accused persons, merely on
the basis of the typed format, it cannot be inferred that they had given
their consent to be searched by the Investigating Officer. He further states
that when it contains only the signature of the accused persons, it is
impossible to arrive at the conclusion that the same was permitting the
Investigating Officer to search them or, whether the signature was for
having them searched by a Gazetted Officer ? In other words, he says
until it is specifically mentioned by the accused person in the notice
itself, it cannot be inferred as to whom he wished to be searched by.
Learned counsel for the State while opposing the application has
also submitted that along with the police accompanying the case diary, no
antecedents of the applicant herein.
Be that as it may, looking at the facts and circumstances of the case
and what has been argued and considered by this Court herein above, this
Court agrees with the submissions put-forth by the learned counsel for the
applicant and allows this application and it is directed that the applicants
shall be enlarged on bail upon his furnishing a personal bond in the sum
of Rs.50,000/- (Fifty Thousand Only) with one solvent surety in the like
amount to the satisfaction of the learned trial Court.
The jail authorities shall have the applicant checked by the jail
doctor to ensure that he is not suffering from the coronavirus and if he is,
he shall be sent to the nearest hospital designated by the state for
treatment. If not, he shall be transported to his place of residence b y the
jail authorities.
C.C. as per rules.
(ATUL SREEDHARAN)
JUDGE
rk.
Signature Not Verified
SAN
Digitally signed by RAVIKANT KEWAT
Date: 2021.07.10 11:42:23 IST
