Mohd. Noman Khan vs Union Of India Through N.C.B.
2022 Latest Caselaw 16888 MP

                                                                     1
                                    IN     THE      HIGH COURT OF MADHYA PRADESH
                                                          AT INDORE
                                                             BEFORE
                                             HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                     ON THE 20 th OF DECEMBER, 2022
                                                 MISC. CRIMINAL CASE No. 56347 of 2022

                                   BETWEEN:-
                                   MOHD. NOMAN KHAN S/O GULAMMOHD. KHAN, AGED
                                   ABOUT 21 YEARS, OCCUPATION: SELF OCCUPIED 405,
                                   SUNSHINE APARTMENT 11/12, ANOOP NAGAR.
                                   DISTRICT INDORE (MADHYA PRADESH)

                                                                                                  .....PETITIONER
                                   (BY SHRI SANJIV VASHIST-ADVOCATE)

                                   AND
                                   UNION OF INDIA THROUGH N.C.B. DISTRICT INDORE
                                   (MADHYA PRADESH)

                                                                                                .....RESPONDENT
                                   (BY SHRI MANOJ KUMAR SONI- ADVOCATE) .

                                         This application coming on for orders this day, th e court passed the
                                   following:
                                                                      ORDER

This is an application under Section 438 of Cr.P.C. filed by the applicant

apprehending his arrest in connection with Crime No.14/2021 registered at P.S. NCB, Dist. Indore for commission of offences under Section 8/20, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The allegation in the present case is that from the possession of co- accused persons, 980 grams of Charas has been seized. The applicant has been implicated in the present case on the basis of statement of co-accused persons recorded under Section 27 of the Indian Evidence Act.

Signature Not Verified Counsel for the applicant submits that except the confessional statement Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/21/2022 4:35:49 PM

of the co-accused persons, there is no evidence against the applicant. The aforesaid confessional statement has no evidentiary value in view of the provisions of Section 25 of the Indian Evidence Act. There is no recovery effected at the instance of the applicant. It is argued that even in the confessional statement of co-accused persons namely Avesh, Fardeen and Apsara, nothing has been stated against the applicant. It is vehemently argued that there is no evidence against the present applicant and the confessional evidence is not admissible in view of the law laid down by the Apex Court in the case of Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 wherein it has been held that the Government Officers, who are deputed in the NDPS

cases for seizure are police officers and the statement made before them is not admissible. It is also argued that no notice under section 67 of the NDPS Act has been served to the applicant. There is no acknowledgement in the notice under section 67, therefore it cannot be argued that the applicant is not co- operating with the investigation and he cannot be said to be absconding from the arrest because no publication of proclamation has been initiated by the prosecution under sections 82, 83, 84 and 85 of Cr.P.C.. Applicant has no criminal record. It is submitted that under the aforesaid circumstances, pre- arrest bail cannot be denied to the applicant. In support of his submission, he has placed reliance on the judgment passed by the Apex Court in the matter of Shri Gurubaksh Singh Sibba Vs. State of Punjab, (1980) 2 SCC 565. It is further argued that applicant is entitled to the benefit of presumption of innocence.

Counsel for the respondent submitted that accused has been named by co-accused Avesh in his disclosure statement and stated that co-accused Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/21/2022 4:35:49 PM

Fardeen, Anees and present applicant had sold the contraband to him. A ticket was booked in the bus in the name of applicant Noman. The another co- accused Fardeen has also named the present applicant stating that he was knowing the present applicant for last 2-3 years and co-accused Sahib Khan had told him to take Noman along with him to Mumbai. At that time applicant was with him. A ticket was booked in the name of present applicant in the said bus in which the contraband was being transported. The investigation is still pending against the applicant and no chargesheet has been filed. The applicant had the knowledge of registration of present case as a notice was sent to him under section 67 of the NDPS Act. He also submitted that even preparation for commission of offence is an offence under section 29 and 30 of the NDPS Act.

I have heard learned counsel for the parties.

So far the contention of learned counsel for applicant that confessional evidence is not admissible is concerned, the Apex Court in its order dated 28.07.2022 in Criminal Appeal No. 1006/2022 (State of Haryana Vs. Samarth Kumar) considering the judgment of Tofansingh held that the judgment passed in the case of Tofan Singh can be applied at the time of arguing the regular bail application or at the time of final hearing after conclusion of trial. The Apex Court further held that the anticipatory bail in a case of this nature is not really warranted. The orders of anticipatory bail were set aside.

Upon perusal of the statement of co-accused Avesh and Fardeen, it is clear that applicant has been named and they stated that applicant had earlier sold charas to him. Co-accused Fardeen and Anees had asked him to book a ticket in the name of present applicant Noman in the bus and to transport the contraband. Co-accused Fardeen in his confessional statement also named the present applicant and stated that he was knowing Noman for last 2-3 years. Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/21/2022 4:35:49 PM

Sahib Khan had asked him to take Noman along with him to Mumbai and at the time Noman was along with him. The ticket was also booked in the name of Noman in the bus in which the contraband was being transported. Whether the notice under section 67 was served on the applicant or not, is a matter of evidence. The same cannot be appreciated at this stage.

Considering the prima facie material against the applicant and quantity of contraband involved in the present case, I do not find case for grant of anticipatory bail.

M.Cr.C. is accordingly dismissed.

(VIJAY KUMAR SHUKLA) JUDGE MK

Signature Not Verified Signed by: MUKTA CHANDRASHEKHAR KOUSHAL Signing time: 12/21/2022 4:35:49 PM