Prashant Rai vs Union Of India
2021 Latest Caselaw 3509 MP

                                     1                         MCRC-39131-2020
        The High Court Of Madhya Pradesh
                  MCRC-39131-2020
                         (PRASHANT RAI Vs UNION OF INDIA)


Jabalpur, Dated : 22-07-2021
       Heard through Video Conferencing.

       Shri Manish Datt, learned Senior Advocate with Shri Amber Mishra,
learned counsel for the applicant.
       Shri J.K. Jain, learned ASG for the respondent/State.

This is first bail application filed on behalf of the applicant under

Section 439 of the Code of Criminal Procedure.

The applicant is in custody since 17.12.2019 in connection with Crime No.01/2019 registered at N.C.B.-Mandsaur, District-Mandsaur (M.P.) for the offences punishable under Sections 8/20 (b)(ii)(c), 25, 27-A and 29 of NDPS Act.

A s per prosecution case, on the basis of secret information, on 09.09.2019, the team of NCB Mandsaur intercepted the vehicle i.e. Bolero Pick up (without registration number) wherein two persons, namely Ramveer Sen and Jeetu Kushwaha were found sitting. Ramveer Sen was driver of such

vehicle. During search, 150 kgs of ganja was recovered from the said vehicle. During investigation, it is revealed that co-accused Ramveer Sen and Jeetu Kushwaha were transporting said substance from Raipur to Jhansi. The vehicle belongs to co-accused Akhilesh @ Chhotu and the substance was to be delivered to the present applicant.

The instant bail application has been filed by the applicant on the ground that the applicant is not involved in the alleged offences. There is no other material available against the applicant except the confessional statement of the applicant and other co-accused persons recorded under Section 67 of NDPS Act which is very weak piece of evidence and solely on that basis, conviction can not be recorded. The applicant was not spotted in the incident place. The vehicle is not registered in his name. Nothing incriminating has been seized from his possession. The contraband substance does not belong 2 MCRC-39131-2020 to him. The mandatory provision of NDPS Act has not been complied by the investigation agency. In the case based on identical fact and circumstances, the Co-ordinate Bench of this Court has already granted bail to the applicant. The prosecution alleged that the applicant made some bank transaction into the account of co-accused Dilip Sahu but the aforementioned account is of

Gaurang Patra. The applicant never made any phone call to co-accused Dilip Sahu. There is no probability of his absconding or tampering with the evidence of the prosecution. Due to ongoing pandemic, trial will take sufficient time in its conclusion. The applicant is ready to furnish bail as per the order, abiding with all conditions imposed by the Court. In support of his contention, he relied upon the judgments passed by the Hon'ble Supreme Court in the case of Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1 ] and Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence [(2018) 8 SCC 271].

Per-contra, learned ASG for the respondent/NCB opposes the bail application pointing out the provisions of Section 37 as well as 67 of NDPS Act. He submits that the applicant has tendered his confessional statement under Section 67 of NDPS Act before the investigating officer wherein he has admitted his guilt. He further submits that the call records of the applicant and other co-accused persons shows the complicity of present applicant in the alleged crime. The confessional statement of applicant given under Section 67 of NDPS Act is admissible in evidence. He further submits that the quantity of seized substance is more then commercial quantity, therefore, bar of Section 37 of NDPS Act would come on the way of present applicant.

Heard.

On perusal of case diary, it is undisputed fact that the name of applicant came into existence in the case when the co-accused persons have given their confessional statements. It is also undisputed that the substance was seized from the vehicle at the instance of other co-accused persons. The applicant was not spotted at the spot. Prima facie, the solitary ground to 3 MCRC-39131-2020 show the involvement of applicant in the instant case is his confessional statement recorded under Section 67 of NDPS Act and call details report.

The applicant has relied upon the judgment passed by the Hon'ble Apex Court in the case of Tufan Singh (supra) wherein the majority of judges on the three Judge Bench held that the confessional statement of accused recorded under Section 67 of NDPS Act cannot be taken into account in order to convict an accused.

In view of the aforesaid circumstances the corroborative material placed by the prosecution side is not sufficient to keep the applicant behind the bars for whole trial. In the case in hand, investigation is also complete, charge-sheet has already been filed. In M.Cr.C.No.16139/2020, arise out from

the case based on the identical fact and circumstances, the co-ordinate Bench of this Court has already granted bail to the applicant vide order dated 11.09.2020.

Therefore, without commenting on merits of the case, application of the present applicant under Section 439 of the Cr.P.C. seems to be acceptable. Consequently, it is hereby allowed.

It is directed that applicant-Prashant Rai be released on bail on his furnishing bail bond in the sum of Rs.1,00,000/-(Rupees One Lakh Only) with two local solvent sureties of the amount of Rs.50,000/-each to the satisfaction of the concerned trial Court for his appearance before the trial Court on the dates given by the concerned Court. It is directed that the applicant shall comply with the provisions of Section 437(3) of the Cr.P.C.

In view of the outbreak of 'Corona Virus disease (COVID-19)' the applicant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020 , it would be appropriate to issue the following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the applicant by the jail doctor before his release.

4 MCRC-39131-2020 2 . The applicant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3. If it is found that the applicant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

Certified copy as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by ASHWANI PRAJAPATI Date: 2021.07.26 17:33:24 +05'30'