Madhya Pradesh High Court
Shyam Singh vs Union Of India on 11 March, 2022
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 11th OF MARCH, 2022
MISC. CRIMINAL CASE No. 64164 of 2021
Between:-
SHYAM SINGH S/O NARAYAN SINGH, AGED ABOUT 35 YEARS,
OCCUPATION: AGRICULTURIST VILLAGE CHIKANYA, TEH.
GAROTH (MADHYA PRADESH)
.....APPLICANT
(BY SHRI A.K. SARASWAT, ADVOCATE)
AND
UNION OF INDIA THRU. NCB SUB ZONE MANDSAUR (MADHYA
PRADESH)
.....NON-APPLICANT/NCB
(BY SHRI MANOJ SONI, ADVOCATE)
This application coming on for orders this day, the court passed
the following:
Heard with the aid of case-diary.
ORDER
1. This is the first application under Section 439 of Criminal
Procedure Code, 1973, as the applicant is implicated in connection
with Crime No.01/2021 registered at Police Station - NCB, Sub Zone,
Mandsaur, District - Mandsaur (M.P.) for offence punishable under
Section 8/15, 25, 29 of NDPS.
2. The applicant is in custody since 28/09/2021.
3. As per prosecution, on 21/01/2021 narcotic control bureau
officials received source information from informant that some person
is transporting illegal contraband poppy-straw in a Toofan vehicle
bearing registration No.M.P.-14/BE/0878. On receipt of information,
the necessary panchnama was prepared and witnesses were called and
vehicle was intercepted at Pawti Railway Fatak on Garoth Boliya
Road. In the vehicle one person was found who revealed his name to
be Karulal. On search 223.480 kg. poppy-straw was recovered from
his possession. On registration of crime his statement under Section 67
of NDPS Act was recorded wherein he stated that he had procured the
contraband from the present applicant. On the basis of such
information, the present applicant has been implicated and arrested for
the present offence.
4. Learned counsel for the applicant submits that applicant is
innocent and has falsely been implicated in the case. No recovery of
contraband has been made from him. There is no material available on
record against him except the memorandum of co-accused Karulal.
The applicant is not the registered owner of the vehicle from which the
contraband has been seized. Investigation has been completed and
challan has been filed and the applicant is no longer required for
custodial interrogation and has remained in jail since 28/09/2021 hence
he deserves to be enlarged on bail.
5. The aforesaid prayer has been opposed by the learned counsel
for the non-applicant/NCB submitting that present applicant was
named in the initial source information itself. Co-accused Karulal has
specifically stated that he had procured the contraband from the
present applicant. The applicant has also been found to have financed
the vehicle from which recovery of contraband has been made. The
recovery is of commercial quantity of contraband. There is prima facie
material available against applicant who is also having a criminal past
with another case of NDPS Act registered against him. Reliance has
been placed by him on the decision of Hon'ble Supreme Court in the
matter of Union of India through Narcotics Control Bureau,
Lucknow vs. Md. Nawaz Khan passed in Criminal Appeal
No.1043/2021 decided on 22/09/2021. It is hence submitted that
applicant is not entitled to be released on bail.
6. I have heard learned counsel for the parties and have perused the
case-diary.
7. The recovery of contraband has been made from the co-accused
Karulal. No recovery has been made from the present applicant. His
implication appears to be on the basis of statement of co-accused
Karulal. In case of Toofan Singh vs. State of Tamil Nadu 2002 SCC
Online SC 882 Hon'ble Supreme Court has held that "Officers" under
Section 53 of the Act are "Police Officer" within the meaning of
Section 25 of the Evidence Act and confessional statement made to
them would be barred under Section 25 of the Evidence Act and
cannot be looked upon and consequently statement recorded under
Section 67 of the NDPS Act cannot be used as confessional statement
in the trial of an offence under the Act.
8. Though the applicant is stated to be named in the initial source
information and has been alleged to have financed the vehicle in which
the contraband was being transported and has also been stated to have
constantly been in touch with co-accused Karulal, but the fact remains
that there is no recovery from him. No other direct evidence is
available against him. Hence I am of the view that judgment of
Hon'ble Supreme Court in the matter Union of India through
Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan shall not
be helpful for consideration in the present matter. Thus, in my opinion
the applicant deserves to be enlarged on bail.
9. Accordingly, the bail application is allowed. The applicant is
directed to be enlarged on bail on his furnishing personal bond in the
sum of Rs.2,00,000/- (Rupees Two Lacs Only) with one solvent
surety in the like amount to the satisfaction of the trial Court for his
appearance as and when directed.
10. It is also observed that after being released on bail, if the
applicant again indulge himself in any criminal activity, the present
bail order shall stand cancelled without further reference to the Court
and the State/Prosecution shall be entitled to arrest the applicant in the
present case also.
11. It is also directed that the applicant will abide by all the
conditions enumerated under Section 437(3) of the Cr.P.C.
Certified copy as per rules.
(Pranay Verma)
Aiyer* Judge
Digitally signed by
JAGDISHAN AIYER
Date: 2022.03.16
12:01:15 +05'30'
