Madhya Pradesh High Court
Mohammad Sharik vs The State Of Madhya Pradesh on 2 March, 2021
Author: Shailendra Shukla
1 MCRC-45376-2020
The High Court Of Madhya Pradesh
MCRC-45376-2020
(MOHAMMAD SHARIK Vs THE STATE OF MADHYA PRADESH)
Indore, Dated : 02-03-2021
Shri Gulab Sharma, learned counsel for the applicant.
Shri Hemant Sharma, Public Prosecutor for State.
Submissions were made on 2nd bail application filed under Section 439
of Cr.P.C for grant of bail. The applicant is being implicated in crime
No.294/2019, registered at police station Malharganj, for the offence
punishable under Section 8/22 of NDPS Act. He is in custody since
15.7.2019. The first bail application was allowed temporarily.
The grounds which have been taken during oral submissions are that
the Investigation Officer was not competent as per Section 42 of NDPS Act,
because he was not authorized by specially or generally order by the State
Government to carry out search and seizure in this matter. The second
ground which has been taken is that the same witness has conducted search,
seizure and rest of the investigation proceedings which is contrary to Apex
Court judgment delivered in the case of Mohan Lal vs . State of Punjab
passed in Cri.Appeal No.1880 of 2011 and the third submission is that the
independent witnesses have not supported the case of the prosecution and
that as per police witness namely Amit Kashyap (PW3) who is constable, the
seizure was drawn up at the police station and not on the spot. Thus, learned
counsel has submitted that all the proceedings have been carried out in the
police station and on these grounds bail has been sought. Other citations have
also been placed on record.
Learned Public Prosecutor for the State was also heard who submits
that the examination in chief of S.I. Shri Vasuniya (PW4) has not yet been
completed and therefore, it is premature to state that he was not competent to
carry out the procedure as per Section 42 of NDPS Act and in respect of
witness Amit Kashyap (PW3), learned Public Prosecutor for the State has
Digitally signed by Shailesh Sukhdev
Date: 03/03/2021 14:34:52
2 MCRC-45376-2020
submitted that this witness has stated in examination in para 2 that on the spot
the sacks carried by the accused were checked and it was found that the
sacks contained bottles of corex syrup and thus, merely carrying out the
formality of drawing the seizure memo in the police station does not dilute the
strength of the prosecution case.
In this matter case diary needs to be perused and citations placed are
also need to be considered. The order shall be passed after duly considering
the material available on record and the citations.
Later on :-
As per prosecution story, the motorcycle was intercepted on 5.7.2019
by Sub-Inspector Shri Vasuniya (PW4) posted at Police Station Malharganj.
There was a white plastic sack kept on the front of the motorcycle rider and
another plastic bag was being carried by the pillion rider. Both were
questioned as to the contents of sacks. When no satisfactorily reply was
given, the sacks were searched. From the possession of the applicant
Mohammed Sharik 275 plastic bottles of codeine phosphate (Dr. Reddy's
Dry Cough Formula) were seized and from the sack in possession of the co-
accused Shahid, 250 plastic bottles containing same substance were seized
each bottle was 100 ML. As per the Apex Court judgment of Union of India
vs. Sanjiv V Deshpande, AIR 2014 S.C. 3625 for calculating the gross
weight of the drug, not merely the net percentage of the salt in the total
mixture needs to be calculated, but the whole weight of the mixture shall be
required to be calculated. Thus, the gross weight of the substance far exceeds
the commercial quantity and, therefore, provision of Section 37 of the NDPS
Act would apply as per which bail can be granted only when there is reason
to believe that accused is not guilty of the offence. The main plank of the
submission of the learned counsel is that in view of Mohanlal's judgment
(supra) same person could not have been carried out the seizure and
investigation in the matter.
A Five Judges Bench judgment of the Apex Court has reconsidered the
Digitally signed by Shailesh Sukhdev
Date: 03/03/2021 14:34:52
3 MCRC-45376-2020
judgment of Mohan Lal's (supra) in the case of Mukesh Singh vs. State
(Narcotic Branch of Delhi), 2020 Vol. 10 SCC 120 in which it has been
held that merely the fact that informant was himself was investigator, the
investigation is not vitiated and the question of bias would depend upon the
facts and circumstances of each case. The law laid down in Mohan Lal's
case (supra) was held to be not good law. Thus, the aforesaid submission
based on Mohan Lal's judgment is not acceptable. As regard the submission
of incompetence of Shri Vasuniya (PW4) in absence of special or general
order of the State Government, to carry out search and seizure as required
under Section 42 of the NDPS Act is concerned, it can be seen that the
examination in chief of the aforesaid witness has yet not been completed and
it would be premature to assume that the aforesaid witness was not authorized
to act as per Section 42.
The third submission was regarding hostility of independent witnesses
and the evidence of Amit Kashyap (PW3). Merely because independent
witnesses have turned hostile, does not amount to the prosecution story being
rendered unworthy of credit, as has been laid down in number of Apex Court
judgment. Amit Kashyap (PW3) also does not help the applicant in view of
his overall evidence. It can be seen that at the moment the cross examination
o main witness Shri Vasuniya (PW4) has not yet began. Even the examination
in chief is not completed.
After duly perusing the case diary, no case is made out for grant of
bail.
The bail application stands rejected.
(SHAILENDRA SHUKLA)
JUDGE
SS/-
Digitally signed by Shailesh Sukhdev
Date: 03/03/2021 14:34:52
