Jibrail Mondal vs The State Of Madhya Pradesh
2022 Latest Caselaw 10043 MP

                                     1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                            ON THE 21st OF JULY, 2022

                MISC. CRIMINAL CASE No. 34404 of 2022

         Between:-
         JIBRAIL MONDAL S/O ATAR ALIAS AATUL ALI
         MONDAL , AGED ABOUT 57 YEARS,
         OCCUPATION: LABOURER BADA NALDA
         DISTRICT NADIYA (WEST BENGAL)

                                                             .....PETITIONER
         (BY SHRI RAJMANI BANSAL-ADVOCATE)

         AND

1.       THE STATE OF MADHYA PRADESH THROUGH
         POLICE STATION CRIME BRANCH GWALIOR
         (MADHYA PRADESH)

2.       UNION    OF        INDIA  THROUGH CENTRAL
         NARCOTICS          BUREAU, INDORE (MADHYA
         PRADESH)

                                                           .....RESPONDENTS
         (BY SHRI P.K.NEWASKAR- ASSISTANT SOLICITOR GENERALFOR
         RESPONDENT NO. 2)

      This application coming on for heearing this day, the court passed the

following:
                                      ORDER

Heard on the first application under section 438 of Cr.P.C. filed by the applicant for grant of anticipatory bail.

T h e applicant is apprehending his arrest in connection with Crime No.103/2021 registered at Police Station Crime Branch District Gwalior (MP), subsequently on transfer for investigation to NCB, Gwalior as Crime No.03/2022 for the offence punishable under Section 8/21 of NDPS Act and

enhanced Section 29 of NDPS Act.

Prosecution story, in short, is that on 04/11/2021, Sub-Inspector- Narendra Singh Sisodiya, Crime Branch, Gwalior received an information that one person wearing white shirt having grey colour bag standing at bus stand behind DB Mall. In this regard, Panchnama was prepared and after doing formalities, Sub-Inspector- Narendra Singh Sisodiya alongwith other police personnel reached the spot with individual witnesses. As per information, they saw one person having grey colour bag was standing in suspicious circumstances. With the help of police force, he was caught hold. During investigation, he disclosed his name as Shafi Mohammad S/o Alla Rakkha,

resident of Village Semli, Tahsil- Mandsaur, District- Mandsaur (M.P.). Thereafter, he was given notice under Section 50 of NDPS Act giving an option whether he wanted to search by Gazetted Officer or Magistrate or me i.e. Sub- Inspector Narendra Singh Sisodiya. Thereafter, Sub-Inspector-Narendra Singh Sisodiya searched the vehicle but no contraband article was found. Thereafter, accused- Shafi Mohammad's bag was searched and on opening the same, one white colour polythene in which brown colour powder was found and from his pocket on notice of Section 50 of NDPS Act, one mobile phone and cash of Rs.200/- were also recovered. On examination of the aforesaid powder, it was found that it is smack (heroine) of which the accused- Shafi Mohammad could not justify the possession from the investigating kit. The aforesaid brown powder was weighed as 500/-gms. Afterwards, sample was drawn. Accused was arrested. After doing formalities, Sub- Inspector- Narendra Singh Sisodiya, Crime Branch Gwalior registered the case as Crime No.103/2021 against the accused- Shafi Mohammad at Police Station- Crime Branch for the offence under Sections 8/21 of NDPS Act. Accused- Shafi Mohammad was intercepted

on 05/11/2021 and statement under Section 27 of Evidence Act has been recorded. In his memorandum statement, nowhere name of the present applicant was mentioned by him that the applicant was involved in the case. He stated that one Shabbir Khan gave the aforesaid contraband article to give to his friend who resides in Gwalior. Subsequently, after 90 days' of the crime, investigation was transferred to Narcotics Control Bureau, Indore. After handing over the investigation to NCB, permission for reexamining the accused- Shafi Mohammad was granted later on from learned Special Judge (NDPS), but earlier on the same date it was rejected. Under what provision, NCB applied for re-examination to the crime before Special Judge after expiry of three and half months, learned counsel for the NCB could not answer. Thereafter, statement of accused Shafi Mohammad was taken in which after about 100 days, he stated that aforesaid drug which was seized from his possession was supplied to him by the accused Ayub Hussain. Further he has stated that accused Ayub Hussain one year before told him that there is one friend, resident of Bengal named Jibrain, present applicant-accused, who demanded smack from him. He has also stated that Ayub Khan told him that he will pay Rs.15,000/- for transporting the smack to Bengal. Thereafter he had gone in February, March, May and June, 2021 to Bengal, applicant-accused used to come to bus stand and take contraband and paid Rs.25,000/-.

Learned counsel for the applicant-accused submitted that applicant- accused is 57 years of age and no recovery has been made from him. Besides this, except the statement of accused Shafi Mohammad no evidence is available. It is further submitted that after the contraband was seized from Shafi Mohammad his statement under Section 27 was recorded in which nowhere he

has alleged against the applicant-accused. Later on without any procedure, NCB applied before Special Judge Court for recording statement of the accused shafi Mohammad which was earlier dismissed without assigning any reason and thereafter, order was reviewed and the application was accepted. Learned counsel for the applicant also relied upon the judgment of the Hon'ble Apex Court in the case of Tofan Singh Vs. State of Tamil Nadu (AIR 2020 SC 5592) in support of his contention. Under these circumstances, he prayed for grant of anticipatory bail.

Learned counsel for the respondent No.2-Central Narcotics Bureau has vehemently opposed the application and prayed for its rejection. In support of his contention, he has relied upon a judgment of the Hon'ble Apex Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal arising out of Special Leave to Appeal (CRL.) No.6128-29 of 2021.

Heard learned counsel for the rival parties at length and perused the case diary.

The judgment relief upon by learned counsel for respondent No.2 do not get any assistance in the case in hand as in the aforesaid case bail was granted under Section 439 Cr.P.C. and from the possession of accused contraband was seized, but in the present case no recovery has been made.

In the case of Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31, the Supreme Court has referred the judgment passed in the case of Kanhaiyalal Vs. Union of India; 2008 (4) SCC 668 by observing as under:-

"40. In our view the aforesaid discussion necessitates a re- look into the ratio of Kanhaiyalal case [(2008) 4 SCC 668]. it is

more so when this Court has already doubted the dicta in Kanhaiyalal [(2008) 4 SCC 668] in Nirmal Singh Pehlwan [(2011) 12 SCC 298] wherein after noticing both Kanhaiyalal [(2008) 4 SCC 668] as well as Noor Aga [(2008) 16 SCC 417], this Court observed thus: Nirmal Singh Pehlwan's case [(2011) 12 SCC 298], SCC p. 302, para 15).

"15. We also see that the Division Bench in Kanhaiyalal case [(2008) 4 SCC 668] had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis-a-vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar Case [(1990) 2 SCC 409]. The latest judgment in point of time is Noor Aga case [(2008) 16 SCC 417] which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case [(2008) 16 SCC 417] particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with."

41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not."

It is submitted by the counsel for the applicant that when the law laid down by the Supreme Court in the case of Kanhaiyalal (supra) has been doubted in two cases, and the matter has been referred to a larger Bench, therefore, the statement recorded under Section 67 of the Act, 1985 may be ignored and except the said statement, there is no other evidence against the applicant. It is further submitted that the applicant is ready and willing to abide by any condition which may be imposed by the Court and he will co-operate

with the investigating agency.

Considering the facts and circumstances of the case, coupled with the fact that the law laid down in the case of Kanhaiyalal (supra) has been doubted in two cases, and the matter has been referred to a larger Bench, as well as considering the life and liberty of a person in mind, and without commenting on the merits of this case, the application filed by the applicant for grant of anticipatory bail is allowed. It is directed that in case the applicant appears before the investigating officer within 15 days from today, then he shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of the Investigating Officer/ Arresting Authority.

The applicant shall co-operate with the Investigating Officer in the investigation. This order shall be subject to the conditions enumerated in Section 438 of Cr.P.C.

It is made clear that if the applicant fails to appear before the investigating officer, within a period of 15 days from today, then this order shall loose its effect.

The application for grant of anticipatory bail is accordingly allowed.

Certified copy as per rules.

(DEEPAK KUMAR AGARWAL) JUDGE vv

VALSALA VASUDEVAN 2022.07.21 00:40:03 +05'30'