Madhya Pradesh High Court
Bherulal vs Central Government Through P.S. ... on 23 September, 2021
Author: Subodh Abhyankar
1
MCRC No.43856/2021
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH AT INDORE
S.B.: Hon'ble Shri Justice Subodh Abhyankar
Miscellaneous Criminal Case No.43856/2021
(Bherulal s/o Radheshyam Dhakad
Versus
Central Government through
Police Station C.B.N. Mandsaur
District Mandsaur MP)
(Case was heard on 15th September, 2021)
Counsel for the Parties : Shri R.K. Shastri, learned counsel for the applicant.
Shri Manoj Soni, learned counsel for the respondent / Cen-
tral Bureau of Narcotics.
Whether approved for : Yes
reporting
Law laid down : Applicability of bar as provided under Section 37 of the Narcotic
Drugs & Psychotropic Substances Act, 1985 in case of
application under Section 438 of the Code of Criminal
Procedure, 1973.
Admittedly, the provisions of the Act have harsher provisions for
sentencing and even harsher when it comes to bail, as has been
provided under Section 37 of the Act. In the case of
Murleedharan v. State of Kerala, while dealing with a similar
provision, Section 41-A of the Kerala Abkari Act, the Supreme
Court has held, that :-
"According to the Sessions Judge "no material could
be collected by the investigating agency to connect the
petitioner with the crime except the confessional
statement of the co-accused".
The above provision is in pari materia with
Section 37 of the Narcotic Drugs and Psychotropic
Substances Act. This Court has held, time and again,
that no person who is involved in an offence under
that Act shall be released on bail in contravention of
the conditions laid down in the said Section. (vide
Union of India v. Ram Samujh [1999 (9) SCC 429].
If the position is thus in regard to an accused even
after arrest, it is incomprehensible how the position
would be less when he approaches the court for pre-
arrest bail knowing that he would also be implicated
as an accused. Custodial interrogation of such
accused is indispensably necessary for the
investigating agency to unearth all the links involved
in the criminal conspiracies committed by the persons
which ultimately led to the capital tragedy.
Such a wayward thinking emanating from a
Sessions Judge deserves judicial condemnation. No
court can afford to presume that the investigating
agency would fail to trace out more materials to prove
the accusation against an accused. We are at a loss to
understand what would have prompted the Sessions
Judge to conclude, at this early stage, that the
investigating agency would not be able to collect any
material to connect the appellant with the crime."
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MCRC No.43856/2021
So far as the case of Toofan Singh (supra) is
concerned, on which the counsel for the applicant has
also relied upon, in the considered opinion of this
Court, the facts of the aforesaid case cannot be applied
in a pre-arrest bail application and thus, the said
decision is distinguishable.
Judgment relied upon: Murleedharan v. State of
Kerala reported as 2001 SCC (Criminal) 795 by
distinguishing the latest judgment of the Supreme
Court in case of Toofan Singh v State of Tamil Nadu
reported as 2020 SCC Online SC 882, which was
relied upon by the counsel for the applicant.
Significant paragraph : From 07 to 09
numbers
ORDER
Post for
23.09.2021
(Subodh Abhyankar)
Judge
MCRC No.43856/2021
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
Miscellaneous Criminal Case No.43856/2021
(Bherulal s/o Radheshyam Dhakad
Versus
Central Government through
Police Station C.B.N. Mandsaur
District Mandsaur MP)
*****
Shri R.K. Shastri, learned counsel for the applicant.
Shri Manoj Soni, learned counsel for the respondent / Central Bureau of
Narcotics.
*****
ORDER
(Passed on this 23rd day of September, 2021)
This first application under Section 438 of Criminal
Procedure Code, 1973 for grant of anticipatory bail has been filed by
the applicant, who is apprehending his / her arrest in connection with
Crime No.02/2020 registered at Police Station CNB Mandsaur,
District Mandsaur (MP) for offence punishable under Section 8 read
with Section 15 of the Narcotic Drugs & Psychotropic Substances
Act, 1985 (herein after referred to as the Act).
2. The allegations against the applicant are that he was also
involved in the aforesaid offence wherein, 1189.700 KG of poppy
straw has been recovered from the possession of the co-accused
Prem Nath Yogi s/o Shankar Nath Yogi, who, in his statement
recorded under Section 27 of the Evidence Act, has stated that it was
the applicant who introduced him to another co-accused Harish
Dhakad s/o Bagdiram Dhakad who is involved in the smuggling of
contraband.
MCRC No.43856/2021
3. Counsel for the applicant has submitted that the
applicant has been falsely implicated on the basis of a memo
prepared under Section 27 of the Evidence Act and there is no other
material available on record to connect him with the offence.
Counsel has further submitted that there are no criminal antecedents
against the applicant and thus he is entitled to be released on
anticipatory bail and the bar under Section 37 of the Act would not
be applicable in the present facts and circumstances of the case.
4. Shri Manoj Soni, learned counsel appearing for the
respondent / CNB, on the other hand, has vehemently opposed the
prayer and it is submitted that it is not the stage where it can be said
with certainty that the applicant has not committed any offence,
especially when it is alleged that he (present applicant) is the person
who has introduced the co-accused Harish Dhakad to co-accused
Prem Nath from whose possession the contraband has been seized,
as it is alleged that it was Harish Dhakad who supplied the aforesaid
contraband to Prem Nath.
5. Counsel has submitted that a huge quantity of
contraband has been seized from the main accused and in such
circumstances, it would not be safe to grant anticipatory bail to the
present applicant as it cannot be said that after his arrest, the
respondent / CNB would not be able to collect any other evidence
which might be available against him. In support of his contention,
MCRC No.43856/2021
Shri Soni has also relied upon a decision rendered by the Supreme
Court in the case of Murleedharan v. State of Kerala reported as
2001 SCC (Criminal) 795.
6. Heard counsel for the parties and perused the record.
7. Admittedly, the provisions of the Act have harsher
provisions for sentencing and even harsher provisions when it comes
to bail, as has been provided under Section 37 of the Act. In the case
of Murleedharan (supra), while dealing with a similar provision,
Section 41-A of the Kerala Abkari Act, the Supreme Court has held,
that :-
"According to the Sessions Judge "no material could be
collected by the investigating agency to connect the
petitioner with the crime except the confessional statement of
the co-accused".
The above provision is in pari materia with Section 37
of the Narcotic Drugs and Psychotropic Substances Act.
This Court has held, time and again, that no person who is
involved in an offence under that Act shall be released on
bail in contravention of the conditions laid down in the said
Section. (vide Union of India v. Ram Samujh [1999 (9)
SCC 429]. If the position is thus in regard to an accused
even after arrest, it is incomprehensible how the position
would be less when he approaches the court for pre-arrest
bail knowing that he would also be implicated as an
accused. Custodial interrogation of such accused is
indispensably necessary for the investigating agency to
unearth all the links involved in the criminal conspiracies
committed by the persons which ultimately led to the capital
MCRC No.43856/2021
tragedy.
Such a wayward thinking emanating from a Sessions
Judge deserves judicial condemnation. No court can afford
to presume that the investigating agency would fail to trace
out more materials to prove the accusation against an
accused. We are at a loss to understand what would have
prompted the Sessions Judge to conclude, at this early stage,
that the investigating agency would not be able to collect
any material to connect the appellant with the crime."
(emphasis supplied)
8. Faced with the aforesaid order, counsel for the applicant
has also drawn the attention of this Court to the bail orders passed by
this Court only in similar circumstances under the Act under Section
438 of the CRPC as also the decision rendered by the Supreme Court
in the case of Toofan Singh v State of Tamil Nadu reported as 2020
SCC Online SC 882. However, this Court finds that in both the
aforesaid decisions in MCRC No.28803/2021 dated 23.06.2021 as
also MCRC No.36357/2021 dated 03.08.2021, the attention of this
Court was not brought to the decision rendered by the Supreme
Court in the case of Murlidharan (supra). In such circumstances,
this Court is not inclined to accept the contentions raised by the
counsel for the applicant and finds that the custodial interrogation of
the applicant would be necessary to get to the bottom of the case.
9. So far as the case of Toofan Singh (supra) is
concerned, on which the counsel for the applicant has also relied
upon, in the considered opinion of this Court, the facts of the
MCRC No.43856/2021
aforesaid case cannot be applied in a pre-arrest bail application and
thus, the said decision is distinguishable.
10. In view of the same, no case for grant of bail is made
out.
11. Accordingly, MCRC No.43856/2021 stands dismissed.
(Subodh Abhyankar)
Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2021.09.23 18:36:19 +05'30'
