Uma Mahesh Alias Mahesh Katkam vs The State Of Madhya Pradesh
2021 Latest Caselaw 7507 MP

            HIGH COURT OF MADHYA PRADESH
          1                          M.Cr.C.No.55060/2020
    (Uma Mahesh alias Mahesh Katkam Vs. State of M.P.)

Gwalior Bench:
Dated :17/11/2021
     Shri Rajmani Bansal, learned counsel for the applicant.
     Shri Nitin Goyal, learned PL for the respondent/State.

Heard.

Perused the case diary.

The applicant has filed this repeat application u/S.439

Cr.P.C for grant of bail. Applicant has been arrested on 17/3/2021

by Police Station Civil Linees, District Morena in connection

with Crime No.121/2021 registered for offence under Section

8/20 of NDPS Act.

It is the submission of learned counsel for the applicant that

he is suffering confinement since 17/3/2021 and charge-sheet has

already been filed, therefore, case be considered for bail. It is

further submitted that the contraband article which has been

seized from the possession of applicant does not constitute Ganja

so far as quantity to the extent of 60.500 kg is concerned. Ganja

was seized on 17/3/2021; whereas, memo shows that Ganja was

deposited in Malkhana on 22/3/2021, therefore, whereabouts of

Ganja for five days is unknown. Even otherwise, name of police

Constable does not figure that who took the sample to FSL for

chemical examination. Therefore, as per the mandate of Apex

Court in the case of Noor Aga Vs. State of Punjab and Anr.,

(2008) 16 SCC 417, Gangadhar Vs. State of M.P., 2020 (9) HIGH COURT OF MADHYA PRADESH

(Uma Mahesh alias Mahesh Katkam Vs. State of M.P.)

SCC 202 as well as judgment of this Court in the case of Arti

Sen Vs. State of M.P., 2014 (I) MPJR 276 &Gopal Krishna

Gautam alias Pandit Vs. State of M.P. & Anr., (M.Cr.C.NO.

31747/2021 decided on 28/7/2021), case for bail is made out.

Learned counsel for the State opposed the prayer on the

ground that although charge-sheet has already been filed but

material prosecution witnesses are yet to be examined and the

applicant shall have chance to take all the grounds in accordance

with law. Since the applicant is an agriculturist from District

Hyderabad of Telangana State, a remote place from Madhya

Pradesh, and his whereabouts and criminal record are also not

available, therefore, possibility of his absconsion cannot be ruled

out. It is further submitted that letter which tried to be relied upon

by the counsel for the applicant is actually written by

Superintendent of Police, District Morena on 22/3/2021 to Joint

Director, FSL, Gwalior in which it has been mentioned that

sample of 50 grams of Ganja has been sent for chemical

examination and that packet has been taken from Malkhana of

Police Station Civil Lines and it was properly sealed. Reference

of person who took the sample is also mentioned on overleaf

(Page No. 76 of bail application). He further referred the chemical HIGH COURT OF MADHYA PRADESH

(Uma Mahesh alias Mahesh Katkam Vs. State of M.P.)

examination report dated 3/6/2021 of FSL, Gwalior which

indicates that contraband article was Ganja.

Heard learned counsel for the parties and perused the case

diary.

It is a case where applicant alongwith other co-accused

person, resident of State of Telangana, was apprehended and

found to be in possession of 60.500 kgs of Ganja. So far as

allegation of applicant regarding definition of Ganja is concerned,

it appears that leaves, flowers and stems were found in the packet

and therefore, at this juncture quantity of Ganja cannot be

ascertained. It can only be ascertained in trial. So far as keeping

the contraband article in a sealed cover envelop is concerned, the

documents annexed with the charge-sheet makes it clear that

contraband article was placed properly. At this juncture, any

minor deviation here and there would not entitle the applicant for

the benefit of bail. In fact, in the case of Gopal Krishna

Gautam alias Pandit (supra) interplay of Section 35, 54 and 66

of NDPS Act which raise presumption over accused to prove his

innocence (although rebuttable) has been discussed. At present

presumption of possession of contraband article is prima facie

over applicant.

HIGH COURT OF MADHYA PRADESH

(Uma Mahesh alias Mahesh Katkam Vs. State of M.P.)

In the case of H.N.Rishbud Vs. State of Delhi, AIR 1955

SC 196, Hon'ble Apex Court has held that in absence of any

failure of justice occasioned to the parties, any error, omission or

irregularity in the complaint, summons, warrant, charge,

proclamation, order, judgment or other proceedings before or

during trial or in any enquiry or other proceedings under this

Code, can not be the usual ground for reversal or alteration of any

finding, sentence or order passed by a Court of competent

jurisdiction except as provided in Section 465 Cr.P.C.

Judgment referred and relied upon by the learned counsel

for the applicant in the case of Noor Aga (supra) moves in

different factual realm because it was a case arising out of

judgment in appeal and therefore, all evidence was led; whereas

in the present case, evidence is yet to start. Applicant is resident

of far of place and chance of his absconsion cannot be ruled out.

Cumulatively, case of applicant sans merits and is hereby

rejected.

(Anand Pathak) Judge jps/-

JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001,

PRAKASH st=Madhya Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179cec865c76 33f4cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290EC8CB2193 780D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D8 C01433EBD48AE4F609F108CA8F8DE6B522, cn=JAI PRAKASH SOLANKI Date: 2021.11.22 10:17:19 +05'30'