Ajayrajak vs The State Of Madhya Pradesh
2022 Latest Caselaw 10339 MP

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                          BEFORE
                                       HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                                                    ON THE 1st OF AUGUST, 2022

                                          MISC. CRIMINAL CASE No. 15825 of 2022

                                   Between:-
                                   AJAYRAJAK S/O RAMARAJAK, AGED ABOUT 22
                                   Y E A R S , OCCUPATION: LABOUR VILLAGE
                                   SHANTINAGAR COLONY SHIVPURI (MADHYA
                                   PRADESH)

                                                                                            .....PETITIONER
                                   (BY SHRI ANIL OJHA)

                                   AND

                                   THE STATE OF MADHYA PRADESH STATION
                                   HOUSE OFFICER THROUGH POLICE STATION
                                   CITY KOTWALI (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                                   (BY MS. MAMTA SHANDILYA, GOVT. ADVOCATE)

                                 This application coming on for orders this day, Hon'ble Shri Justice
                           Satyendra Kumar Singh passed the following:
                                                               ORDER

With the consent, heard finally.

Perused the case diary.

This is first application filed under Section 439 of Cr.P.C for grant of bail to the applicant, as he has been arrested on 20.02.2022 in connection with Crime No.86/2022 registered at Police Station City Kotwali, District Mandsaur (M.P.) for commission of offence punishable under Sections 8/22 and 29 of the NDPS Act.

Prosecution story, in brief is that on 10.02.2022, after receiving secret information, police intercepted the applicant and found him carrying 300 grms. Signature Not Verified Signed by: VIBHA PACHORI Signing time: 8/3/2022 10:19:22 AM

Alprazolam, without any license or authority for the purposes of sale.

Learned counsel for the applicant submits that as per prosecution case itself applicant was only a carrier and he carried the said contraband on the instance of co-accused Salim Khan. He further submits that provisions Section 42 and 50 of NDPS Act have not been complied with as no time has been mentioned on the information sent under Section 42 of NDPS Act and notice issued under Section 50 of NDPS Act in itself shows that investigating officer before apprising the applicant about his right to give search in front of magistrate or any gazetted officer, told him that he will make search of him which is clear violation of mandatory provision of aforesaid section. In this

regard, learned counsel has placed reliance upon the judgment passed by the Apex Court in the case of Arif Khan Vs. State of Uttarakhan (Cr.A No.273/2007) and order passed by this Court on 14.08.2020 passed in MCRC No.23181/2020 (Ajay Vs. State of MP). He also submits that even after filing of charge sheet, contraband said to be seized from the possession of the applicant as well as sample of seal alongwith copy of Malkhana register has not been produced in the Court. Computerized copy of seizure memo and other documents in itself shows that whole proceeding was done in the police Station. The whole prosecution story is false and fabricated. Applicant is in custody since 20.02.2022 and trial will take time to conclude and therefore, in the aforesaid circumstances, applicant is entitled for grant of bail. Learned counsel has also placed reliance upon the judgements passed by the Apex Court in the case of State of Rajasthan Vs. Gurmal Singh in Cr. A. No.1179/1999 and Valsala Vs. State of Kerala reported in AIR 1994 SC 117 as well as judgment passed by this Court in the case of Remgul @ Remulal vs. state of

Signature Not Verified MP (Cr.A No.1154/1997).

Signed by: VIBHA PACHORI Signing time: 8/3/2022 10:19:22 AM

Learned Public Prosecutor for the non-applicant - State has opposed the application and submits that quantity of contraband seized from the possession of the applicant is of commercial quantity and provisions of Section 37 of NDPS Act attracts in the matter. He further submitted that as the said contraband was seized from the bag of the applicant, therefore, provisions of section 50 of NDPS Act do not attract in the matter. Even though, notice under Section 50 of NDPS act was issued to the applicant wherein it had specifically been stated that he was having right to give his search in front of magistrate or any gazetted officer and no 3rd option was given to him, therefore, the aforesaid judgments relied by the counsel for applicant are of no assistance to the applicant. She further submits that as the chemical report has not been received from the laboratory, proceedings under section 52(A) of NDPS Act has not been conducted, therefore, at this stage it cannot be said that the seized contraband alongwith sample of seal has not been produced before the Court. Hence, applicant is not entitled for grant of bail.

Heard counsel for both the parties and perused the record. After going through the case diary, specially notice issued under Section 50 of NDPS Act prima facie it cannot be said that the same is defective. Trial is yet to be started and it has specifically been mentioned in the report that proceeding under Section 52(A) of NDPS Act will be conducted after receiving

chemical report from the laboratory. In the aforesaid circumstances, at this stage considering the submission advanced by the Govt. Advocate for respondent/state and also the quantity of contraband said to be seized from the possession of the applicant which is of commercial quantity, in view of this Court, this applicant does not deserve to be enlarged on bail. Signature Not Verified Signed by: VIBHA PACHORI Signing time: 8/3/2022 10:19:22 AM

Accordingly, this MCRC stands dismissed.

(SATYENDRA KUMAR SINGH) JUDGE Vibha

Signature Not Verified Signed by: VIBHA PACHORI Signing time: 8/3/2022 10:19:22 AM