Madhya Pradesh High Court
Vajid @ Mota vs The State Of Madhya Pradesh on 18 April, 2022
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
MCRC No. 18205 of 2022
(VAJID @ MOTA Vs THE STATE OF MADHYA PRADESH)
Dated : 18-04-2022
Shri Ajay Kumar Jain, counsel for the applicant.
Shri Puneet Shroti, Panel Lawyer for the respondent-State.
This second application has been filed by the applicant under Section 439 of
Cr.P.C in connection with crime no.25/2022, registered at police station Crime
Branch Bhopal District Bhopal for the offence punishable under Section 8/20 of
NDPS Act.
By first application i.e M.Cr.C.No.10914/2022 applicant was granted
temporary bail vide order dated 03/03/2022.
Counsel for the applicant submits that applicant was arrested on 09/02/2022
when he was travelling in a car bearing registration No.04-CJ-5608 with other co-
accused. On getting information from the informer police intercepted the aforesaid
car and after conducting search police team seized contraband article (ganja) totally
weighing 51 kg. 450 gms. He was very particular in stressing the point that when
applicant was travelling with other co-accused persons and seizure of 4 kg 750 gm
contraband article (ganja) has been shown individually from the applicant then
possession of that quantity of ganja has to co-relate with the applicant. He submits
that taking note of the fact that the quantity of ganja seized from the present
applicant is a non-commercial quantity and the fact that applicant has been granted
temporary bail by this Court on 03/03/2022 in M.Cr.C.No.10914/2021, he is
entitled to be released on regular bail, as he has abided all the terms and condition
of the order.
Per contra, counsel for State opposes the submissions made on behalf of
the applicant and very fairly submits that though officers after searching car
prepared individual seizure memo, but infact it was not required and no provision
of NDPS Act permits for doing so, as no seizure has been made from physical
possession of the applicant and other co-accused persons. On the contrary,
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SAN
contraband article was kept hidden in the various parts of the car and after carrying
extensive search it was seized. He submits that there was no occasion and reason
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.04.23 11:14:45 IST
for the investigating officer to make individual seizure and it is nothing, but lapses
on the part of the investigating team. He submits that crime committed by the
applicant is serious one and because of certain lapses on the part of the
investigating team, he cannot be granted benefit and can not be released on bail
only on this ground. It is a well settled law that if lapses are found on the part of
investigation the benefit should not be granted to the accused. In support of his
submission he has drawn attention of this Court towards Section 54 of NDPS Act
and submits that the applicant was found in conscious possession of quantity of
contraband article which was kept hidden in the car in which he was travelling with
other co-accused person as such the same cannot be divided in any manner. It is
next submitted that it will be treated as a consolidated quantity for the purpose of
determination of total quantity seized and that is more than the commercial
quantity. He submits that applicant was found in conscious possession of
contraband weighing 51 kg 450 gm, which is more than commercial quantity. He
has also relied upon several judgments of the Supreme Court and the High Court,
in which it is observed that in existing circumstance, it would be presumed that the
applicant was in conscious possession of the contraband seized from the vehicle.
He has also informed the Court about criminal antecedents of the applicant and
prays for rejection of bail application of the applicant.
I have heard exhaustive submissions made on behalf of parties and perused
the case diary.
Perusal of case diary reveals that the applicant along with two other
accomplishes were travelling in a Maruti Car and on getting information from the
informer Police intercepted the same, wherein it was found that car was being
driven by one Deepak Kalra, in the conductor seat co-accused Mohd.Asif was
sitting and in the passenger seat the present applicant was sitting. Consequently,
search of those persons were carried out, but no contraband from their physical
possession was seized and when the police searched the car they recovered 35
plastic bags of contraband weighing 51 kg 450 gm, which were kept hidden in
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different parts of the car. The investigating officer was prepared individual seizure
SAN
Digitally signed by SUSHMA KUSHWAHA
memo showing quantity of ganja seized from Deepak Kalra as 35 kg 650 gm, from
Date: 2022.04.23 11:14:45 IST
applicant as 5 kg 750 gm and from Modh.Asif 10.450 kg. However, there was no
reason for making individual seizure memo and it was contrary to procedure
prescribed under the NDPS Act. It was a lapse on the part of the investigating
officer and applicant cannot be granted benefit of the same. In such a
circumstance, when seized quantity of contraband article was more than the
commercial quantity, the applicant is in jail since 09/02/2022 and earlier he has been
granted temporary bail and terms and conditions of temporary bail has been abided
by the applicant, does not mean that he becomes entitled to be released on regular
bail.
In the overall fact situation, after hearing the arguments in detail, and after
perusing all available material on record, this Court does not deem it appropriate to
allow the bail application. Accordingly, the same is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
sushma
Signature Not Verified
SAN
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.04.23 11:14:45 IST
