Madhya Pradesh High Court
Dharmendra Tiwari @ Golu Tiwari vs The State Of Madhya Pradesh on 2 March, 2021
Author: Atul Sreedharan
1 MCRC-98-2021
The High Court Of Madhya Pradesh
MCRC-98-2021
(DHARMENDRA TIWARI @ GOLU TIWARI Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 02-03-2021
Mr. Sourabh Singh Thakur, learned counsel for the applicant.
Mr. Utkarsh Agrawal, learned P.L. for the State.
Heard.
This is the second bail application filed by the applicant under Section
439 of the Cr.P.C. for grant of bail in connection with Crime No.150/2020 for
the offences punishable under Sections 8, 21, 22 of N.D.P.S. Act as also
U/s.5/13 of the M.P. Drug Control Act, 1949, registered at Police Station-
Sohagi, District- Rewa.
T h e applicant is in judicial custody since 27.06.2020 in the
aforementioned case. From the possession of the applicant and another co-
accused, 580 bottles of cough syrup containing codeine was seized.
At the very outset, learned counsel for the applicant has fairly
submitted that the first application of the co-accused was dismissed with
liberty granted to him to file afresh in the month of July, 2021. However, as
regards the applicant herein Dharmendra Tiwari, his first application was
dismissed with liberty granted to him to renew his prayer in the month of
January, 2021.
Learned counsel for the applicant has placed before this Court the
judgment of the Supreme Court in the case of State of Rajasthan Vs.
Parmanand and another, (2014) 5 SCC 345, wherein, the issue of
consolidated/conjoint notice under Section 50 of the N.D.P.S. Act given to
the accused persons in that case, by way of a written notice, which was
signed by only one of the accused persons, was examined. The Supreme
Court held that such a composite notice would not fulfill the mandate of
Section 50 of the N.D.P.S. Act and that, each of the accused persons had to
Signature Not Verified
SAN
be individually given the option of exercising their right to be searched by a
Digitally signed by ASHISH DATTA
Date: 2021.03.03 11:09:11 IST
2 MCRC-98-2021
Gazetted Officer. In the present case, the notice U/s.50 of the N.D.P.S. Act
is a composite notice where the Investigating Officer has given the option of
having their vehicle searched either by him or by the Gazetted Officer. It
bears the signature of the three accused persons, but their categorical consent
to have it searched by the Investigating Officer and not by the Gazetted
Officer, is not mentioned.
Learned counsel for the applicant submits that the presence of the
signature of the accused persons can at the most only mean that they were
put notice with regard to their right, but the manner in which they exercised
their right, cannot be presumed.
This Court prima-facie agrees with the submissions made by the
learned counsel for the applicant. The notice must first of all, ought not be a
composite notice where there were multiple accused persons. Thereafter, the
consent by the accused persons to be searched by the Investigating Officer
and not by the Gazetted Officer, must be expressed in the said notice by each
accused and in the absence of such expressed consent, their consent cannot
be inferred.
Under the circumstances, in view of what has been discussed
hereinabove, the application is allowed and it is directed that the applicant
shall be enlarged on bail upon his furnishing a personal bond in the sum of
Rs.50,000/- (Fifty Thousand Only) with one 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 by the jail authorities.
C.C. as per rules.
(ATUL SREEDHARAN)
JUDGE
Signature Not Verified
SAN
Digitally signed by ASHISH DATTA
Date: 2021.03.03 11:09:11 IST
3 MCRC-98-2021
a
Signature Not Verified
SAN
Digitally signed by ASHISH DATTA
Date: 2021.03.03 11:09:11 IST
