Raghvendra Jaiswal vs The State Of Madhya Pradesh
2022 Latest Caselaw 3049 MP

                                                                           1
                                          IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                          BEFORE
                                                            HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                                    ON THE 4th OF MARCH, 2022

                                                       MISC. CRIMINAL CASE No. 7863 of 2022

                                                Between:-
                                                RAGHVENDRA JAISWAL S/O SHRI RAJBHAN
                                                JAISWAL , AGED ABOUT 36 YEARS, OCCUPATION:
                                                AGRICULTURIST R/O VILLAGE PADKHURI NO. 1
                                                POLICE STATION JAMODI DISTRICT SIDHI M.P.
                                                (MADHYA PRADESH)

                                                                                                       .....PETITIONER
                                                (BY SHRI MANISH DATT, SENIOR ADVOCATE WITH SHRI MAYANK
                                                SHARMA, ADVOCATE)

                                                AND

                                                THE STATE OF MADHYA PRADESH THROUGH
                                                POLICE STATION KOTWALI DISTRICT SIDHI
                                                (MADHYA PRADESH)

                                                                                                     .....RESPONDENTS
                                                (BY SHRI VIJAY SONI, GOVERNMENT ADVOCATE)

                                           This application coming on for admission this day, the court passed the
                                     following:
                                                                            ORDER

This is the first bail application under Section 439 of Cr.P.C filed by the

applicant for grant of bail.

T he applicant has been arrested on 07.10.2022 by Police Station Kotwali Sidhi, District Sidhi (M.P.) in connection with Crime No.970/2021 for the offence punishable under Sections 8, 20 (b), 21, 22, 27, 29 of the NDPS Act and under Section 5/13 of the M.P.Drugs Control Act, 1949.

It is submitted that the applicant has falsely been implicated in the case. He has not committed any offence in any manner. He has been made accused only on the basis of the statements recorded under Section 27 of the Evidence Act or 67 of the NDPS Act (hereinafter read as "the Act") of the other co-accused. It is submitted that the statement recorded under Section 27 of the Evidence Act of the co-accused is having no relevance and is of no value. No recovery is made from Signature Not Verified SAN the present applicant. He was not even available at the place of commission of Digitally signed by SHALINI LANDGE Date: 2022.03.08 10:45:27 IST offence.

As per the prosecution story, the allegation against the present applicant is that the contra band article was provided by one Raghvendra i.e. the present applicant for selling them. The principal accused is already in custody. As charge sheet has already been filed in the matter, no further custodial interrogation of the

applicant is required in this case. He has placed reliance upon the judgement passed by the Hon’ble Supreme Court in the case of State by (NCB Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr. passed in Special Leave to Appeal (CRL.) No. 242 of 2022 decided on 10.01.2022 whereby, the three judges of the Hon’ble Supreme Court, considering the earlier judgement in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2021) 2 SCC 246 wherein, the validity of the confessional statement recorded under Section 167 of the Act was taken note of and it was held that the same is inadmissible in trial for an offence under the Act. He has further relied upon the judgment passed by the Surinder Kumar Khanna Vs. Intelligence Officr Directorate of Revenue Intelligence passed in Cr.A.No.949/2018 dated 21.07.2018 wherein, the question of the confessional statement of the co-accused has again taken into consideration. He has further placed reliance upon the order passed by this court in M.Cr.C.No.64905/2021 order dated 07.01.2022 wherein, considering the factum that the statement recorded under Section 27 of the Evidence Act and other co- accused is not admissible; therefore, the bail was allowed. As far as criminal past of the applicant is concerned, a detailed reply to the aforesaid has been filed by the counsel for the applicant pointing out the fact that he is not an accused in Crime No.132/2009 registered at Police Station- Kotwali Sidhi, District Sidhi another Crime No.609/2019 is pending consideration. Other 3-4 cases of the Act are been registered against the present applicant. Only on the basis of the statement recorded under Section 67 of the Act wherein, he has already been enlarged on bail by the learned trial court, copies to the order sheets dated 23.12.2021, 06.01.2022, 30.11.2021 have been filed along with this application. In such circumstances, he prayed for grant of bail.

Signature Not Verified SAN Per contra, counsel appearing for the State has vehemently opposed the bail Digitally signed by SHALINI LANDGE Date: 2022.03.08 10:45:27 IST application stating that the applicant is dealing into the sale and purchase of the

contra band articles since from long and he is having several cases registered against him for the Act. There are specific allegation made against the present applicant by the other co-accused that he used to provide the contra band articles for selling it in the market but he could not dispute the fact that he has been made accused only on the basis of the memo of other co-accused recorded under Section 67 of the Act. He could not further distinguish or discriminate the judgement passed by the Hon’ble Supreme Court in the aforesaid cases, wherein the statement of the co-accused recorded under Section 67 of Act is said to be inadmissible. It is further pointed out that he is having criminal past of 12

cases; therefore, prays for dismissal of the application.

Considering the overall facts and circumstances of the case and placing reliance upon the judgement passed by the Hon'ble Supreme Court in the case of Tofan Singh (supra), this court deems it appropriate to allow this application, as there is no recovery from the present applicant, without commenting upon the merits of the case, this application is allowed. The applicant be released on bail on furnishing surety bond of Rs.1,00,000/- (Rupees One Lacs Only) with one local surety in the like amount to the satisfaction of trial Court.

The applicant shall submit written undertaking that he will abide by all terms and conditions of the different circulars, orders as well as guidelines issued by the Central Government, State Government as well as Local Administration for maintaining social distancing, hygiene etc to avoid Novel Corona Virus (COVID -

19) pandemic and he will have to install Arogya Setu App, if not already installed.

This order will remain operative subject to compliance of the following conditions by the applicant :-

1. The applicant will comply with all the terms and conditions of the bond executed by him;

2. The applicant will cooperate in the investigation/trial, as the case may be;

3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them

Signature Not Verified from disclosing such facts to the Court or to the Police Officer, as the case may SAN

Digitally signed by SHALINI LANDGE be;

Date: 2022.03.08 10:45:27 IST

4. The applicant shall not involve any other offence, in case the applicant

indulge in any other criminal case the benefit of bail as extended by this Court shall automatically cancelled.

5. The applicant will not seek unnecessary adjournments during the trial;

6. The applicant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

7. The applicant will inform the concerned S.H.O. of concerned Police Station about his residential address in the said area and it would be the duty of the Public Prosecutor to send E-copy of this order to SHO of concerned police station as well as Superintendent of Police concerned who shall inform the concerned SHO regarding the same.

In view of the COVID-19, jail authorities are directed that before releasing the applicant, medical examination of applicant shall be undertaken by the jail doctor and on prima facie, if it is found that he is having the symptoms of COVID-19, then consequential follow up action including the isolation/quarantine or any test if required, be ensured, otherwise applicant shall be released immediately on bail and shall be given a pass or permit for movement to reach his place of residence.

Application stands allowed and disposed of.

Certified copy as per rules.

(VISHAL MISHRA) JUDGE Sha

Signature Not Verified SAN

Digitally signed by SHALINI LANDGE Date: 2022.03.08 10:45:27 IST