Madhya Pradesh High Court
Surya Pratap Singh vs The State Of Madhya Pradesh on 3 February, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 3rd OF FEBRUARY, 2022
MISC. CRIMINAL CASE No. 5646 of 2022
Between:-
SURYA PRATAP SINGH S/O HIMMAT SINGH ,
AGED ABOUT 32 YEARS, OCCUPATION:
LABOUR R/O GRAM ROHANI POLICE
STATION NOHTA TAHSIL JABERA DISTRICT
DAMOH M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANDEEP KUMAR JAIN, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION BARELA DISTRICT
JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD CHOURASIA, P.L.)
(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. His first application was dismissed as
withdrawn vide order dated 13.12.2021 passed in M.Cr.C. No.58553/2021
with liberty to repeat the same after filing of charge-sheet.
T h e applicant has been arrested on 26.10.2021 by Police Station
Barela, District-Jabalpur (M.P.) in connection with Crime No.567/2021 for the
offence punishable under Sections 8/20 of NDPS Act.
It is submitted that the applicant has been falsely implicated in the case
and he has not committed any offence in any manner. The prosecution has
shown a recovery from a polythene bag which was carried by the applicant
along with two other co-accused. The joint recovery has been shown from
the applicant. It is argued that there is total non-compliance of Section 50 of
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NDPS Act as the joint notice has been given to the applicant and only on the
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SIDDIQUI
Date: 2022.02.05 10:58:47 IST
basis of this joint notice, the search was made. Even the motorcycles on
which the contraband was carried were taken into custody but the
whereabouts of the motorcycle and the ownership of the motorcycle could
not be traced by the prosecution and charge-sheet has been filed. He has
placed heavy reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of State of Rajasthan Vs. Parmanand and another
reported in (2014) 5 SCC 345 and has argued that the joint notice is not
permissible under the NDPS Act. The written consent should be taken from
the present applicant. The same is not reflected in the order sheets. In such
circumstances, no compliance of Section 50 is being reflected. The
investigation is over and charge-sheet has been filed in the matter There is no
further requirement of custodial interrogation of the present applicant. The
applicant is a first offender. He is ready to abide by all terms and conditions
that may be imposed by this Court while considering the application for grant
of bail. Even the quantity which has been shown to be recovered individually
from the present applicant is less than the commercial quantity, therefore, he
prays for grant of bail.
P er contra, learned counsel appearing for the State has vehemently
opposed the prayer stating that the contraband has been seized from all the
three accused persons. They were carrying the contraband i.e. ganja
15kg.200gms in a white polythene wrap which has been recovered. They were
asked whether the compliance of Section 50 is being shown and they have
shown their willingness to give the search to the Police Officers, in pursuance
to the same they were searched. As far as whereabouts of motorcycles are
concerned, the motorcycles were standing near the accused persons and the
recovery was made from the white polythene wrap. The motorcycles were
having no number plates therefore, the whereabouts could not be traced out.
Nobody has filed any application before the trial Court to claim the said
motorcycles till date. As per Section 50 in the judgment of Constitutional
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Date: 2022.02.05 10:58:47 IST
applicant/accused regarding his right to be searched before a Gazetted
Officer. The search memos which have been prepared also shows the
signature of the present applicant and other accused persons. In such
circumstances, it cannot be said that Section 50 is not complied with. The
Hon'ble Supreme Court in the case of Union of India through Narcotics
Control Bureau, Lucknow Vs. Md. Nawaz Khan reported in 2021 (10)
SCC 100 has considered the theory of conscious possession of the
contraband article. It is not disputed that the bag was carried by the present
applicant along with other co-accused and it was containing a contraband
article. Heavy burden is upon the applicant to explain that how he is in
possession of the contraband article which has been shown to be recovered
from his possession. In absence of any explanation the offence is clearly
made out. Looking to the custody period he has prayed for dismissal of the
bail application.
Considering the overall facts and circumstances of the case and the
fact that there appears to be compliance of Section 50 made by the Police
Authorities and also looking to the quantity of the contraband article which
have been recovered, this Court does not deem it appropriate to allow the
application at the stage.
The application is hereby rejected.
(VISHAL MISHRA)
JUDGE
irfan
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Digitally signed by MOHD IRFAN
SIDDIQUI
Date: 2022.02.05 10:58:47 IST
