Manoj vs The State Of Madhya Pradesh
2021 Latest Caselaw 1824 MP

                                   1                               CRA-2338-2015
        The High Court Of Madhya Pradesh
                   CRA-2338-2015
                      (MANOJ Vs THE STATE OF MADHYA PRADESH)

83
Jabalpur, Dated : 06-05-2021
      Heard through Video Conferencing.
      Shri Pramod Singh Tomar, learned counsel for the appellant.
      Shri Yogendra Das Yadav, learned G.A. for the respondent-State.

Record of the trial Court has been received.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A.No.18017/2019, an application for suspension of execution of jail sentence of the appellant.

In compliance of the order dated 09.04.2021, the learned counsel for the appellant has filed a fresh application bearing I.A.No.6555/2021 for the same purpose. Therefore, I.A.No.18017/2019 has no meaning and it is hereby dismissed.

Now, heard on I.A.No.6555/2021, which is repeat application for suspension of execution of jail sentence and grant of bail to the appellant. The

appellant has been benefited of temporary bail at several occasions.

Appellant stands convicted for the offence punishable under Section 8/20([k)(ii)(b) of NDPS Act,1985 and sentenced to undergo R.I. for 10 years

with fine of Rs.1,00,000/- also with default stipulation.

As per prosecution case, on 28.04.2014, on the basis of information received from an informant, complainant-R.K. Pandey, S.I. along with two independent witnesses and other officials reached on the spot where they tried to intercept the vehicle bearing registration No.CG-12-D-9951 (swift car) but the driver of said vehicle i.e. present appellant raced the car. The vehicle dashed into railing of bridge and thus, police got success to intercept the vehicle. While inquiry, the present appellant again reversed the car, resultantly, the complainant got injured. Finally the police succeed to intercept the vehicle 2 CRA-2338-2015 and on asking about the identity of sitting persons, they stated their name as Manoj (present appellant), Vimal Sahu (owner of vehicle), Raju and Irfan. During search, 46 kgs and 580 gms contraband substance i.e. ganja was recovered from the said car. After completing the investigation, the police filed the charge-sheet before the competent Court and after evaluating all the evidence, produced by the parties, the trial Court found the appellant and

other co-accused guilty for the aforesaid offence.

Learned counsel for the appellant submits that the appellant has wrongly been convicted by the trial Court. The appellant was only driver of said vehicle and he was not aware to the fact that the ganja was kept in the car. The appellant is innocent person and was not involved in the alleged offence. At several occasions, on the ground of illness of his father, the appellant has been released on temporary bail and he never misused the liberty granted by the Court. It is argued by the counsel that the complainant and investigating officer are the same person, namely, R.K. Pandey (PW-15) which is contrary to spirit of law set for the investigation of cases registered under the NDPS Act. In fact, the appellant was hired by the owner of aforesaid vehicle for driving and on the way, car met with an accident due to which, R.K. Pandey got injured and the appellant was booked by the police and later he was implicated falsely in the present case. The seizure witnesses have turned hostile and not supported the case of prosecution. The prosecution has not complied with the mandatory provision of NDPS Act. Besides the above, he further submits that there is material contradictions and omissions in the statement of prosecution witnesses. Father of appellant is suffering from cancer and no one is there to look after him. There is no criminal antecedent against the present appellant, therefore, no probability to repeat the such offence in future. He further argued that the appellant has suffered substantial jail sentence period out of 10 years of conviction and if he is not released on bail, purpose of filing this criminal appeal would be frustrated. There is no possibility of early hearing of this criminal appeal 3 CRA-2338-2015 especially because of COVID-19 pandemic. With the aforesaid, he prays for allowing the said application.In support of his contention he has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Hussain & another v. Union of India reported in (2017) 5 SCC 702.

On the other hand, learned G.A. opposes the prayer of the counsel for the appellant submitting that earlier applications filed for the same purpose have been rejected by the Court after considering each and every aspect of the case. There is no change in circumstances to consider this successive bail application. The contraband substance was seized from the possession of present appellant.

Heard and perused the record.

O n perusal, it is found that 46 kgs and 580 gms of contraband substance (ganja) was seized from the car whereon the present appellant and other co-accused were sitting. As per the prosecution, the appellant and other co-accused were transporting the contraband substance and while intercepting the vehicle, they tried to run away even during that period, the investigating officer also got injured. The learned counsel for the appellant seeks bail to the appellant mainly on the grounds that the complainant and investigating officer are same person, falsely implication of the appellant due to injury caused to the complainant in accident, the mandatory provisions of NDPS Act has not been complied with and the appellant has suffered substantial jail sentence period.

On perusal of record, it is true that the FIR was registered by R.K. Pandey (S.I.) who has also performed the investigation of the matter even then now it has been settled by the constitution Bench of Hon'ble the Apex Court in the case of Mukesh Singh v. State (Narcotic Branch of Delhi) reported in (2020) 10 SCC 120 holding that that under the NDPS Act, merely on sole ground that informant himself is investigator in the case, accused not entitled to be benefited.

On perusal of evidence available on record, prima facie, it appears that 4 CRA-2338-2015 the appellant was driving the vehicle and and on seeing the police, he raced the car, resultantly, the investigating officer got injured. The conduct of appellant shows that he was well aware with the fact that the contraband substance was kept in the vehicle. The vehicle and contraband substance were seized from the possession of present appellant. The ground of falsely implication of the appellant and non-compliance of mandatory provisions of NDPS Act, prima facie, having no force as it appears from the learned trial Court discussed about the compliance of mandatory provisions of NDPS Act and prima facie, the case does not seem of falsely implication.

The learned counsel for the appellant has also expressed his anxiety about futility of purpose of filing this appeal, if the appellant is not released on bail or the appeal will not be heard finally. As per the appellant's counsel, the appellant has already suffered substantial part of his jail sentence out of 10 years of conviction and if he is not released on bail, the appeal would be in vain.

Section 37 of NDPS Act restricts the bail of accused for offence involving commercial quantity unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.

In the case of Union of India v. Abdul Momin reported in (2005) 13 SCC 144, after considering the question of applicability of Section 37 of NDPS Act, the Hon'ble Apex Court has held that merely on the ground that there was no prospect of early hearing of appeal, bail cannot be granted to the accused.

Further, in the case of Rasheed and others Vs. State of Karnataka reported in 2007 Cri. L.J. 2316, the High Court of Karnataka has held that under NDPS Act, '€œthe negation of bail is rule and grant of is an exception'€Â. The Court discussed the provision of Section 37 of NDPS Act and held that the expression €˜reasonable ground€™ as used in Section 37 of the Act means something more then prima facie ground.

In another case Ratan Kumar Vishwas v. State of U.P. & another 5 CRA-2338-2015 reported in AIR 2009 SC 581, the Hon'ble Apex Court has denied to suspend the jail sentence of the appellant whose possession contraband substance was seized. The Hon'ble Apex Court held that bail cannot be granted to accused unless there are reasonable ground for holding that he is not guilty and not likely to commit any offence while on bail.

Further, in the case of Union of India v. Ratan Malik @ Habul reported in (2009) 2 SCC 624, the reason of delay in conclusion of appeal and undergone period of accused were citing before the Hon'ble Apex Court for granting bail but the Hon'ble Apex Court did not found said circumstances sufficient to satisfy the mandatory requirements of Section 37 of NDPS Act.

The full bench of our High Court in the case of Dhashrath Vs. State of MP in Cr.A. No. 1248/2005, order dated 26.04.2017, has already settled the principle that the custody period of the accused is not a sole ground to suspend jail sentence of accused and release him on bail. While passing the order, the Bench has also considered the pronouncement relied by the appellant's counsel here of Hussain (Supra) passed by the Hon'ble Apex Court.

The record shows that the quantity of seized substance is more than commercial quantity i.e. 46.580 kgs and same were seized from the possession of present appellant. As above discussed, the trial Court found that the appellant was fully aware with the fact that the substance was kept in

the car and on seeing the police, instead of stop the vehicle he raced the car which resulted into injury to the investigating officer.

Therefore, prima facie, the involvement of accused is found in the case and there is no sufficient reasonable ground for believing that the appellant is not guilty of such offence.

Accordingly, the I.A. No.6555/2021 is hereby rejected. However, the ground raised by the appellant's counsel are still kept alive for consideration thereof while hearing the appeal finally. The appellant may also approach the 6 CRA-2338-2015 Appropriate Authority requesting early final hearing of this appeal.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by SAVITRI PATEL Date: 2021.05.08 16:08:51 +05'30'