Abhishek Sen vs The State Of Madhya Pradesh
2021 Latest Caselaw 2182 MP

                                                                   1                               MCRC-21388-2021
                                         The High Court Of Madhya Pradesh
                                                   MCRC-21388-2021
                                                   (ABHISHEK SEN Vs THE STATE OF MADHYA PRADESH)


                                  Jabalpur, Dated : 08-06-2021
                                        Heard through Video Conferencing.

                                        Shri K. B. Vishwakarma, learned counsel for the applicant.
                                        Shri Amit Pandey, learned P.L. for the respondent/State.

Heard with the aid of case diary.

This is the third application filed under Section 439 Cr.P.C. Applicant

Abhishek Sen 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 8/21, 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 IPC.

The first bail application filed by applicant was dismissed as withdrawn by this Court vide order dated 28/7/2020 passed in M.Cr.C. No.11145/2020 and second bail application was dismissed on merit by this Court vide order dated 03/12/2020 passed in M.Cr.C.No.37138/2020.

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 applicant Abhishek Sen and co-accused Rajesh Sondhiya were also traveling in that vehicle. The Car was being driven by co-accused Umesh Sen and co-accused Shirish Kushwaha 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- Signature Not Verified SAN 38G-0764, 4800 bottles of Onerex Cough Syrup and car bearing registration Digitally signed by ANURAG SONI Date: 2021.06.08 16:59:28 IST 2 MCRC-21388-2021 No. MP-17CC-3383, 600 bottles of Onerex Cough Syrup total 5400 bottles Onerex Cough Syrup containing codeine phosphate were found which was illegally being carried by the applicant and co-accused Ravi Chourasiya, Rishabh Pandey, Rajesh Sondhiya, Umesh Sen and Shirish Kushwaha in the Pick Up Van and Car.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in this case. It is further submitted that there is no evidence on record to show that the applicant was also involved in the crime. Although, earlier bail application filed by the applicant was dismissed on merit, but thereafter statement of witnesses of seizure memo i.e. Ajay Kushwaha (PW/1) & Pankaj Sen (PW/2) 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 and the trial is still pending, 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 Umesh Sen and the applicant was also travelling in the pick up van bearing registration No. MP-38G-0764. Learned counsel 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. The earlier bail application filed by the applicant was dismissed on merit and thereafter there is no change in circumstance. So, the applicant should not be released on bail.

The second bail application filed by applicant was dismissed on merit by this Court vide order dated 03/12/2020 passed in M.Cr.C.No.37138/2020

Signature Not Verified SAN and thereafter there is no change in circumstance except custody period of

Digitally signed by ANURAG SONI Date: 2021.06.08 16:59:28 IST 3 MCRC-21388-2021 the applicant. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director, (2007) 1 SCC 70 held that bail, cannot 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 Onerex Cough Syrup from car bearing registration No.MP-17CC-3383 total 5400 bottles of Onerex Cough Syrup and the applicant was travelling in the pick up van, 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 for 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

as

Signature Not Verified SAN

Digitally signed by ANURAG SONI Date: 2021.06.08 16:59:28 IST