Madhya Pradesh High Court
Parwati Soni vs The State Of Madhya Pradesh on 2 February, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 2nd OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 61215 of 2021
Between:-
PARWATI SONI W/O SURESH KUMAR SONI ,
AGED ABOUT 58 YEARS, OCCUPATION:
HOUSEWIFE VILLAGE DHUDHMANIYA,
P.S.SARAI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VED PRAKASH NEMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
P.S. SARAI P.S. SARAI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TAPAN BATHRE, PANEL LAWYER )
(Heard through Video Conferencing)
This application coming on for Admission this day, the court passed
the following:
ORDER
This is the Second bail application under Section 439 of Cr.P.C filed
by the applicant for grant of bail.
The applicant has been arrested on 31.3.2021 by Police Station Sarai,
District-Singrouli (M.P.) in connection with Crime No.336/2021 for the
offence punishable under Section 8/20-B of the NDPS Act. Earlier bail
application of the applicant was dismissed on merit vide order dated
24.11.2021 passed in M.Cr.C. No.24055/2021.
It is alleged that from the possession of the present applicant 40 Kgs of
Contraband article (ganja) was seized by the Police.
It is submitted that the applicant is a lady aged about 58 years and has
falsely been implicated in the crime. She has not committed any offence in
any manner. The earlier application was stated to have been rejected on merits
by applying the wrong Case Law as it is not a case of joint possession. She is
Signature Not Verified
SAN the sole accused in the matter. Therefore, he prays for permission of this
Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2022.02.04 15:08:31 IST
Court to argue the matter on merits again. He is permitted to argue the matter
on merits as the rejection on earlier occasion is based upon the case law
which is not applicable to the case.
It is argued that the witnesses of seizure has declared hostile. The
aforesaid witnesses are witness of as many as 10-11 documents which have
been prepared by the prosecution including that of seizure and the procedure
which has been adopted by the I.O. while making compliance of Section 50.
It is submitted that she is handicapped to the extent of 75%. A certificate
issued on 25.4.2005 is being produced. The certificate dated 24.6.2021 is
also produced issued by the Sarpanch of Janpad Panchayat Devsar, District-
Singrauli to the effect that she is 75% disabled and getting pension of
Rs.600/- and getting a disability pension. It is argued that she is also HIV
positive patient. Keeping her in custody for a longer time will deteriorate her
health conditions. Certain other points are also been raised by way of written
synopsis wherein it is pointed out that the search made was not in accordance
with the provision as the search was required to be made by a Lady Police
Officer as per the NDPS Rules. The same has not been done in a present
case. The physical verification of the weighing machine was not done prior to
making the measurement of contraband article. The same was being done
after the entire procedure of search, seizure and confiscation was complete
and applicant was taken into custody. There is total non-compliance of
mandatory provisions under Section 47, 50, 52 of NDPS Act which itself
amounts to partial compliance made by the Police Authority which is in
contravention to the judgment passed in the case of Taro Vs. State of
Rajasthan, 1998 Vol 1 AFR 280 Rajasthan . The quantity which has been
recovered from the possession of the present applicant is also alleged in the
commercial quantity. Looking to the custody period of the applicant and as
the trial will take time to conclude, therefore, she prays for grant of bail.
Per contra, learned counsel appearing for the State has opposed the
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application stating that more than 40 kgs of contraband article has been seized
SAN
Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2022.02.04 15:08:31 IST
from the possession of the present applicant. The Investigating Officer is a
key witness which has not been examined till date before the trial Court.
Merely relying upon the statement of witnesses before the trial Court does not
extend any benefit to the applicant as the I.O. is a key witness which is
required to be examined. All these arguments were also advanced at the
earlier stage when the application was considered. It is submitted that the
correct procedure was adopted by the Police Authorities while making the
search and seizure from the present applicant. It is not disputed that 40 kgs of
contraband article has been seized from the possession of the present
applicant in the house which belongs to her. In such circumstances, no case
for bail is made out. The disability certificate which has been relied upon by
the applicant does not bear any seal and signature of the authorized officer
therefore, the same itself is not admissible evidence and is of no
corroborative value.
Considering the over all facts and circumstances of the case and
looking to the fact that large quantity of contraband article has been recovered
from the possession of the present applicant, this Court does not deem it
appropriate to allow this application at the stage. Application is hereby
rejected.
However, applicant is at liberty to repeat the same after the statement of
I.O. has been recorded before the trial Court.
(VISHAL MISHRA)
JUDGE
irfan
Signature Not Verified
SAN
Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2022.02.04 15:08:31 IST
