Kalu vs The State Of Madhya Pradesh
2023 Latest Caselaw 13091 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                                ON THE 11 th OF AUGUST, 2023
                                          MISC. CRIMINAL CASE No. 34780 of 2023

                           BETWEEN:-
                           KALU S/O RAJARAM DUDVE, AGED ABOUT 35 YEARS,
                           OCCUPATION: AGRICULTURE AND LABOR R/O
                           BHILALA PALDA TESHIL BHIKANGAON DISTT.
                           KHARGONE (MADHYA PRADESH)

                                                                                            .....APPLICANT
                           (BY SHRI BHASHKAR AGRAWAL - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION BHIKANGAON
                           DISTT. KHARGONE (MADHYA PRADESH)

                                                                                          .....RESPONDENT
                           (BY SHRI TARUN PAGARE - PUBLIC PROSECUTOR)

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

This is third bail application under Section 439 of Cr.P.C for grant of regular bail in connection with crime No.813/2022 dated : not mentioned, registered at P.S - Bhikangaon District - Khargone(M.P.) for offences punishable under Section(s) 8/20 of NDPS Act. The earlier two applications were dismissed as withdrawn.

2. Counsel for the applicant submits that as per the prosecution case, it is alleged that 25.200 KG Ganja, worth of Rs.2,52,000/- has been recovered from the possession of the applicant. It is argued that as per the seizure memo, there Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/08/2023 6:40:19 PM

were 5 bags/sacks containing contraband but each sack was not weighed by the prosecution and the contraband in all the bags/sacks were mixed and thereafter sample was taken in violation of the guidelines for taking sample. Since the prosecution has failed to take sample from each bag/sack, therefore, the applicant is entitled for bail in the light of the judgment passed by a co-ordinate Bench of this Court in the case of Jaivardhan Vs. State of M.P. dated 2/8/2022 passed in M.Cr.C No.30722/2022. It is also stated that against the said order, SLP diary No.15312/2023 vide order dated 4/5/2023 has been dismissed. The co-ordinate Bench has passed an order relying on a judgment passed by the Supreme Court in the case of Union of India vs. Mohanlal

and another reported in (2016) 3 SCC 379. It is also submitted the alleged seized quantity of contraband is little more than commercial quantity. The commercial quantity of contraband Ganja is 20 KG and in the present case the seized quantity of the contraband is 25.200 KG. The applicant is in jail since 10/12/2022. The investigation has been completed, the charge-sheet has been filed, there is no criminal record of the applicant.

3. Counsel for the State opposes the prayer for grant of bail and submits that the alleged quantity is more than commercial quantity and, therefore, the bar under Section 37 of NDPS Act would apply, however, he could not dispute the fact that the quantity of each bag/sack was not weighed by the prosecution and the contraband of all the bags/sacks contraband was mixed before taking the sample. Thus, the guidelines provided for obtaining sample is admittedly violated.

4. After hearing learned counsel for the parties and taking into consideration the fact that the case is squarely covered by the order passed in the case of Jaivardhan (supra). Further, the quantity is little more than the Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/08/2023 6:40:19 PM

commercial quantity. The applicant is in jail since 10/12/2022 there is no criminal record of the applicant, I am of the view that the applicant is entitled for grant of bail.

5. It is directed that applicant Kalu shall be released from custody upon furnishing a personal bond of Rs.1,00,000/- (Rupees one lakh Only) with one surety of the like amount to the satisfaction of the Ld. Court below.

6. The prison authorities are also requested to ensure compliance with the order passed by the Supreme Court IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU "W.P. (C) No.1/2020" and ensure that the applicant is examined by the jail doctor before his release. If the applicant shows symptoms of COVID-19, the doctor shall forthwith direct him to be produced before the appropriate hospital designated for the detection and treatment of COVID-19 patients. If the doctor is of the opinion that the applicant is not affected with the virus, the jail authorities shall ensure his transportation from the jail till his place of residence.

7. A typed copy of this order is being forwarded to the Office of the Advocate General, on their email address, for intimation to the Police Station concerned. The office is requested to forward a copy of this order to the Ld. Court below.

8. With the aforesaid, the application is allowed and disposed off.

Cc as per rules.

(VIJAY KUMAR SHUKLA) JUDGE Pramod

Signature Not Verified Signed by: SOURABH YADAV Signing time: 11/08/2023 6:40:19 PM