Pankaj Patidar vs The State Of Madhya Pradesh
2022 Latest Caselaw 15731 MP

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                          BEFORE
              HON'BLE SHRI JUSTICE VIVEK RUSIA
                ON THE 29th OF NOVEMBER, 2022


          MISC. CRIMINAL CASE No. 29374 of 2022

       BETWEEN:-
       PANKAJ PATIDAR S/O RAJARAM PATIDAR, AGED
       ABOUT 19 YEARS, OCCUPATION: BUSINESS VILLAGE
       JAWASIA, TEHSIL AND DISTRICT MANDSAUR
       (MADHYA PRADESH)
                                          .....PETITIONER
       (BY SHRI LAXMI NARAYAT SONI, SENIOR ADVOCATE
       ASSISTED BY SHRI RASHMENDRA SURYAVANSHI,
       ADVOCATE)

       AND
       THE STATE OF MADHYA PRADESH STATION HOUSE
       OFFICER THROUGH POLICE STATION JAWAD
       (MADHYA PRADESH)
                                       .....RESPONDENTS
       (BY SHRI VISMIT PANOT, PANEL LAWYER)
        This application coming on for admission this day, the
court passed the following:
                              ORDER

This is the repeat (second) application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for grant of bail in connection with Crime No.146/2021 registered at Police Station - Jawad, District - Neemuch for the

offences punishable under Section 8/15, 25, 29 of the Narcotic Drugs & Psychotropic Substances Act. The applicant is in custody since 31.07.2021.

First application of the applicant (M.Cr.C. No.54968 of 2021) was dismissed as withdrawn vide order dated 21.12.2021, thereafter, two seizure witnesses have been examined and they are not supporting the case of prosecution. Hence, the present application is filed.

As per prosecution story, on 07.04.2021, on the basis of discrete information, an ISSAR truck bearing registration No.GJ 23 AT 5471 was apprehended. The driver of the vehicle disclosed his name Wagaram. Thereafter, the truck was searched from which 45 bags were found and after opening the bags, 9 quintal 86 kg poppy straw was found. Entire poppy straw was collected and mixed, thereafter, two samples of 500 - 500 gm each were sent to the Forensic Science Laboratory. An F.I.R. was registered against Wagaram and his memorandum statement under Section 27 of the Indian Evidence Act was recorded, in which he disclosed that his grand mother Gita Bai is having lease of opium. He along with his cousin brother Pushkar Patidar got the poppy straw loaded in the truck. He has further disclosed that he was in contact with Pankaj through mobile who made arrangement for selling of poppy straw @ Rs1,600/- per kg. He paid Rs.5,00,000/- in advance, and thereafter, he paid the remaining amount. On the basis of said memo, present applicant has been made accused in this case.

Thereafter, the police has arrested him. The police recovered Whats App chat from the mobile, which revealed that they were in regular contact for purchase and transportation of the contraband.

Shri L.N. Soni, learned Senior Counsel appearing on behalf of the applicant submits that the present applicant has been implicated on the basis of memorandum statement of Wagaram recorded under Section 27 of the Indian Evidence Act. There is non-compliance of Section 50 of the NDPS Act. During the search, the police ought to have taken the sample from each bag before mixing them. The applicant is aged about 19 years of age having no criminal antecedent. He is in custody with hardcore criminal and his future may be spoiled. In support of his contention, he placed reliance upon the judgment delivered in the cases of The State of Rajasthan v/s Parmanand & Others reported in (2014) 5 SCC 345, Arif Khan alias Agha Khan v/s The State of Uttrakhand reported in (2018) 18 SCC 380, Union of India (UOI) v/s Mohanlal & Others reported in (2016) 3 SCC 379 and a recent judgment passed in the case of Dipanjan Swarnakar @ Saheb v/s The State of West Bengal [SlP (Crl.) No.2565 of 2022] and prays that the applicant may be enlarged on bail.

Learned Panel Lawyer for the respondent / State opposes the application by submitting that apart from 27 memo, Whats App chat has been recovered from the mobile of the accused persons which revealed that they were in regular contact for selling the said contraband. There is no change in the circumstance of the case

after withdrawal of the first application. Wagaram received amount for the said contraband from the present applicant. No ground of Section 37 of the NDPS Act is available to the applicant for grant of bail. The commercial quantity of this contraband is 50 kg, however, in the present case, 9 quntial 86 kg poppy straw has been recovered. The effect of non-compliance of Section 50 of the NDPS Act and mixing of contraband and its effect are the matter of evidence and liable to be considered by the trial Court.

Keeping in view argument so advanced by learned counsel for the parties and huge quantity of the contraband, I am not inclined to enlarge the applicant on bail.

Accordingly, M.Cr.C. stands rejected.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2022.12.02 11:50:36 +05'30'