Madhya Pradesh High Court
Nihal Shrivastava vs The State Of Madhya Pradesh on 31 July, 2021
Author: Satyendra Kumar Singh
1 MCRC-32200-2021
The High Court Of Madhya Pradesh
MCRC-32200-2021
(NIHAL SHRIVASTAVA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 31-07-2021
Heard through Video Conferencing.
Shri Lavkush Mishra, learned counsel for the applicant.
Shri Ramji Pandey, learned Panel Lawyer for respondent/State.
Case diary is available with learned Panel Lawyer.
This is first bail application filed under Section 439 of Cr.P.C. for grant of
bail to the applicant, as he has been arrested since 31/07/2020 in connection with
Crime No.332/2020 registered at Police Station Garh, Distt. Rewa for commission
of offences punishable under Section 8/21 and 22 of the NDPS Act, 1985 and also
under Section 5/13 of the M.P. Drug Control Act, 1949.
Prosecution story, in brief, is that Police after receiving information reached
the spot and found applicant along with co-accused-Shalivahan Singh coming from a
motorcycle bearing registration No.M.P.17 MA 9317 which was stopped and after
being checked found 102 bottles Wincerex cough syrup containing 100 ml codeine
phosphate from the possession of the applicant and co-accused- Shalivahan Singh.
Learned counsel for applicant submits that alleged contraband is a schedule
drug and does not come under the definition of manufactured drug and as such no
offence under the provisions of the NDPS Act and M.P. Drugs Control Act is made
out against the applicant. Bar of Section 37 of the NDPS Act is also not attracted in
the matter. Learned counsel for the applicant has placed reliance on the judgment of
the Delhi High Court in the matter of Iqbal Singh Vs. State passed in Bail
Application No.645/2020 on 31/07/2020. The applicant has been made accused on
the basis of joint notice and joint seizure memo. While Hon'ble Apex Court in the
matter of State of Rajasthan Vs. Parmanand and another, (2014) 5 SCC 345 has
held that for compliance of provision of Section 50, individual communication to
each accused is required. FSL report with regard to alleged substance has not been
received. Alleged contraband was not seized from the exclusive possession of the
applicant. Co-accused persons have been granted the benefit of bail and the case of
the applicant is identical. The applicant is a young boy of 21 years. He is in custody
since 31/07/2020. The trial will take time for its conclusion, so the applicant may be
Signature Not
SAN
Verified enlarged on bail.
Digitally signed by
TULSA SINGH
Date: 2021.08.02
13:07:08 IST
2 MCRC-32200-2021
Learned counsel for the respondent/State vehemently opposes the bail
application and submits that 102 bottles Wincerex cough syrup containing 100 ml
each of codeine phosphate were seized from the possession of the applicant. In view
of the judgment passed by Hon'ble Apex Court in the matter of Hira Singh Vs.
Union of India, 2020 SCC Online SC 382, the quantity of the contraband seized
from the applicant is commercial quantity, hence, the applicant may not be released
on bail.
Perusal of the record reveals that co-accused persons -Anurag Chaturvedi and
Nishant Singh alias Nishu have been released on bail by this Court vide order dated
18/11/2020, 08/01/2021 passed in M.Cr.C. No.39304/2020 and M.Cr.C.
No.36548/2020 respectively on the ground that they were made accused on the basis
of memorandum of co-accused persons. The case of the applicant is entirely
different as he was found along with co-accused on the spot having said contraband.
In view of the judgment of Hon'ble Apex Court delivered in the matter of Hira Singh
Vs. Union of India, 2020 SCC Online SC 382, the quantity of that contraband,
prima facie, is commercial quantity. At this stage, this Court is not required to
examine the matter in any further details. Considering the facts and circumstances of
the case and the allegations made against the applicant, this Court is of the
considered view that it is not a fit case to release the applicant on bail.
Consequently, the application filed on behalf of the applicant under Section
439 of Cr.P.C. is hereby dismissed.
(SATYENDRA KUMAR SINGH)
JUDGE
ts
Signature
SAN Not
Verified
Digitally signed by
TULSA SINGH
Date: 2021.08.02
13:07:08 IST
