Sumit Dwivedi vs The State Of Madhya Pradesh
2022 Latest Caselaw 12072 MP

                                                                         1
                                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                                   AT JABALPUR
                                                                       BEFORE
                                                         HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                             ON THE 12th OF SEPTEMBER, 2022

                                                       MISC. CRIMINAL CASE No. 43222 of 2022

                                                BETWEEN:-
                                                SUMIT DWIVEDI S/O SHRI SUNIL DWIVEDI,
                                                AGED    ABOUT    19 YEARS, OCCUPATION:
                                                STUDENT    VILLAGE  DUBGAVAN    POLICE
                                                STATION BAIKUNTHPUR DISTRICT REWA (M.P.)
                                                (MADHYA PRADESH)

                                                                                                      .....APPLICANT
                                                (BY SHRI JAGAT SINGH - ADVOCATE)

                                                AND
                                                THE STATE OF MADHYA PRADESH THROUGH
                                                THE POLICE STATION RAIPUR KARCHULIYAN
                                                DISTRICT REWA (MADHYA PRADESH)

                                                                                                  .....RESPONDENTS
                                                (BY SHRI S.K. SHRIVASTAVA - GOVT. ADVOCATE)

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

This is second bail application filed on behalf of the applicant-Sumit

Dwivedi S/o Shri Sunil Dwivedi, under Section 439 of Cr.P.C., 1973, in connection with Crime No.30/2022, registered at Police Station Raipur Karchuliyan, for offences punishable under Sections 8, 21, 22 of NDPS Act and 5/13 of the M.P. Drugs Control Act. First bail application being M.Cr.C.No.13226/2022 was dismissed as withdrawn by order dated

Signature Not Verified SAN 04.04.2022.

Digitally signed by ASHWANI PRAJAPATI Shri Jagat Singh, submits that present applicant was sitting besides the Date: 2022.09.12 19:45:29 IST

driver. Owner was sitting on the back seat. Since owner was available in the vehicle-Honda City car bearing registration No.MP17CB0009, it cannot be said that present applicant was in conscious possession of 1280 bottles of Codeine Phosphate containing syrup.

Placing reliance on the judgment of Supreme Court in Avtar Singh and others Vs. State of Punjab [(2002) 7 SCC 419] and reading para 6 of the judgment, it is submitted that only in case of conscious possession of the contraband, a person can be said to be an accused. It is submitted that persons who were sitting on the bags of poppy husk in the truck, were acquitted and Supreme Court upheld the judgment of acquittal.

Similarly, reliance is placed on the judgment of High Court of Orissa at Kuttack in B.L.A.P.L. No.9629/2021, Kishore Bira Vs. State of Orissa, decided on 11.07.2022, where again the Orissa High Court has held that mere custody without awareness of the nature of such possession will not attract provisions of Section 20 of NDPS Act. Placing reliance on these two judgments, it is submitted that since there was no conscious possession of the applicant, therefore, he be enlarged on bail. There is no criminal history. He is a youth of 19 years and he is already in custody since 29.01.2022. One of the seizure witnesses, namely, Rahul Patel has turned hostile. It is also submitted that there is delay in trial which is prejudicing the interest of the present applicant.

Shri Ajay Tamrakar, learned Panel Lawyer for the State, submits that it is not a case of lack of conscious possession. In the memorandum, applicant has accepted that he was aware to the nature of the material kept in the vehicle in Signature Not Verified SAN

which he was travelling.

Digitally signed by ASHWANI PRAJAPATI Date: 2022.09.12 19:45:29 IST

However, the interesting fact which appears after reading the judgment of

Supreme Court in Avtar Singh (supra), so also in case of Indar Sain Vs. State of Punjab [(1973) 2 SCC 372], that prosecution is required to prove that the accused was custodian of goods whether or not he was the proprietor. To prove this, it is necessary that the Investigating Officer should have traced the chain of possession from the manufacturer down the persons who were apprehended.

Shri Ajay Tamrakar, admits that Batch Number of the drug that is Codeine Phosphate syrup seized from the vehicle in which present applicant was travelling, is known to the Investigating Officer. It is mentioned in the seizure memo, then Investigating Officer was duty bound to approach the concerned manufacturer to know as to which stockists or whole seller that batch was delivered and, thereafter, should have traced the whole chain that whether the narcotic substance came in possession of the accused directly from the manufacturer or the whole seller or it was given to them by some retailer and unless that chain is completed, then that will be a failure of the investigation in terms of the judgment of the Supreme Court in Avtar Singh (supra). It is surprising to note that Investigating Officer has not taken any steps in this direction. Motive cannot be gathered at the present, but incompetency is writ large.

At this stage, Shri Ajay Tamrakar submits that name of the manufacturer

is mentioned in the seizure memo, but steps taken thereafter are not mentioned in the case diary.

At this stage, since some more witnesses are required to be examined,

Signature Not Verified SAN Shri Jagat Singh, prays for withdrawal of the application. However,

Digitally signed by ASHWANI PRAJAPATI Investigating Officer of the case will be obliged to take permission from the Date: 2022.09.12 19:45:29 IST

competent Court and investigate the matter in such a manner to complete the chain of delivery of narcotic substance to the present applicant and shall investigate the role of each and every person in that chain.

Accordingly, this bail application is dismissed as withdrawn.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2022.09.12 19:45:29 IST