Madhya Pradesh High Court
Sujeet Khatua vs The State Of Madhya Pradesh on 11 January, 2023
Author: Nandita Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
ON THE 11 th OF JANUARY, 2023
MISC. CRIMINAL CASE No. 34 of 2023
BETWEEN:-
SUJEET KHATUA S/O CHITRASEN, AGED ABOUT 32
Y E A R S , OCCUPATION: PRIVATE WORK, R/O
RUNDIMAHAL THANA KANTAMAL DISTRICT BANDH
(ORISSA)
.....APPLICANT
(BY SHRI NITIN JAIN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH N.S.B.
DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUSHPENDRA YADAV - ASSISTANT SOLICITOR GENERAL)
MISC. CRIMINAL CASE No. 48897 of 2022
BETWEEN:-
BHUPENDRA SINGH @ CHUNCHUN SINGH S/O JAGDISH
SINGH, AGED ABOUT 60 YEARS, R/O. SIRSHIRYA
POLICE STATION BADHRA DISTRICT BHOJPUR
(BIHAR).
.....APPLICANT
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
UNION OF INDIA THROUGH NCB ZONAL UNIT INDORE
DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUSHPENDRA YADAV - ASSISTANT SOLICITOR GENERAL)
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
2
MISC. CRIMINAL CASE No. 50841 of 2022
BETWEEN:-
DAYA PRASAD YADAV S/O SHIV BIHARI YADAV, AGED
ABOUT 54 YEARS, OCCUPATION: RAILWAY CATERING
WORK, R/O HOUSE NO. 149 NEW RAILWAY COLONY
MIHAR POLICE STATION MIHAR DISTRICT SATNA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SUNIL KUMAR PANDEY - ADVOCATE )
AND
UNION OF INDIA THROUGH POLICE STATION
NARCOTICS CONTROL BUREAU ZONAL UNIT INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUSHPENDRA YADAV - ASSISTANT SOLICITOR GENERAL )
These applications coming on for admission this day, the court passed
the following:
ORDER
MCr.C. No.50841/2022 is the first application filed by the applicant Daya
Prasad under Section 439 of Cr.P.C. for grant of bail for the offences
punishable under Sections 8/20 and 29 of the NDPS Act.
M.Cr.C. No.48897/2022 is repeat (second) application filed by applicant
Bhupendra Singh @ Chunchun Singh for the offences punishable under
Sections 8/20(b)(ii)(c), 25, 27-A read with Section 29 of NDPS Act. First
application was dismissed as withdrawn.
M.Cr.C. No.34/2023 is repeat (third) application filed by applicant Sujeet
Khatua for the offences punishable under Sections 8/20(b)(ii)(c) , 25, 27-A read
with Section 29 of NDPS Act. Earlier applications were dismissed as
withdrawn.
The applicants are in custody since 16.06.2021 in connection with Crime
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
No.02/2021 registered at P.S. Narcotic Control Bureau, Zonal Unit, District
Indore.
All these applications have arisen from the same crime number of police
station, Barela, hence, decided by this common order.
Applicants are in judicial custody in aforesaid case since 16.06.2021, i.e.,
almost 17 months.
As per prosecution, on an information, a truck was intercepted at 6.30
A.M on 16.06.2021. Two persons sitting in the truck were arrested. They
informed that the contraband was loaded by the applicants who are following in
a XUV car, registration No.OD-33-H-4451 and the delivery be done to one
Rishi Pandey. On this information, the police party waited for the car, which
reached toll plaza at around 9 A.M. The truck and the car thereafter were taken
to the police station, Barela. It is stated that 461.88 kgs of ganja in 23 bags
was seized from the truck and from the car one bag containing 30.520 kgs of
ganja was found.
Learned counsel for the applicants submit that the applicants who were
sitting in the car are maliciously targeted. The car was said to be occupied by
five persons and only 30 kg of ganja was was seized from the car. It is argued
that when the applicants were allegedly transporting huge quantity of ganja by
the truck why would they keep a small quantity, i.e., 30 kg in car. It is argued
that the procedure prescribed under the standing order was not followed, the
ganja was not seized and sampled at the spot, but the vehicle was taken to
police station, Barela and the sampling was done on 24.06.2021 in the police
station, Barela, i.e., after a period of 8 days of the seizure. It is pointed out that
the samples were sent for examination to the FSL after a further delay of 4
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
days, i.e.,on 27.06.2021 as reflected from the charge sheet. It is further argued
that the applicants are in custody for last 17 months and the prosecution
evidence is yet to taken, as not a single witness has been examined till date.
Learned counsel for the applicants referring to the judgment of Supreme
Court in the case Narcotics Control Bureau Vs. Mohit Aggarwal has
argued that at the stage of examining an application for bail, the Court is not
required to record a finding that the accused person is not guilty nor the Court
is expected to weigh the evidence for arriving at a findings as to whether the
accused has committed an offence under the NDPS Act or not. It is stated that
the entire exercise that the Court is expected to undertake at this stage is for the
limited purpose of releasing the applicant on bail.
Learned counsel for the respondent/UOI has vehemently opposed the
bail application. It is argued that the case involves total 492.40 kgs of ganja
and the procedural violation as argued by learned counsel for the applicants
cannot be a ground for grant of bail. It is stated that the police has followed the
direction of the Supreme Court in the case of Union of India Vs. Mohanlal
and others wherein in para 20 it has been directed that no sooner the seizure of
any Narcotic Drugs and Psychotropic Substance and controlled substances and
conveyances is effect, the same shall be forwarded to the officer In-charge of
the nearest police station and the sampling shall be done under the supervision
of the Magistrate. It is contended that the applicants may raise all the arguments
on merits at the time of trial. He further submitted that the applicants were
travelling in the car from which the contraband was seized. Under the
circumstances, their release would not be in the ends of justice. However, he
did not dispute that the prosecution evidence has not yet started.
In the case of Satender Kumar Antil Vs. Central Burea of
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
Investigation (2022) 10 SCC 51, the Supreme Court has observed in para 86
that the general principle governing delay would apply to the categories of
special acts also.
86. To make it clear, the provision contained in Section 436-
A of Code would apply to the special acts also in the absence of
any specific provision. For example, the rigour as provided under
Section 37 of the NDPS Act would not come in the way in such a
case as we are dealing with the liberty of a person. We do feel
more the rigour, the quicker the adjudication ought to be. After
all, in these types of cases number of witnesses would be very less
and there may not be any justification for prolonging the trial.
Perhaps there is a need to comply with the directions of this Court
to expedite the process and also a stricter compliance of Section
309 of the Code.
Further in para 87, the precedents in the case of Union of India Vs.
K.A. Najeeb (2021) 3 SCC 713 has been referred to, wherein the Supreme
Court has held :-
15. This Court has clarified in numerous judgments that the
liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness but
also access to justice and a speedy trial. In Supreme Court Legal
Aid Committee Representing Undertrial Prisoners v. Union of
India, it was held that under trials cannot indefinitely be detained
pending trial. Ideally, no person ought to suffer adverse
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
consequences of his acts unless the same is established before a
neutral arbiter. However, owing to the practicalities of real life
where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial,
Courts are tasked with deciding whether an individual ought to be
released pending trial or not. Once it is obvious that a timely trial
would not be possible and the accused has suffered incarceration
for a significant period of time, Courts would ordinarily be.
On the last date of hearing status report was sought from the concerned
Court. The report dated 10.01.2023 shows that the prosecution evidence is yet
to begin and not a single witness has been produced by the prosecution till date.
As per the status report dated 10.01.2023, despite issuance of summons and
the arrest warrants, the prosecution has failed to produce the witnesses. The
bailable warrants thrice issued through S.P. Jabalpur have not returned. The
Court has specifically mentioned that repeated summons and warrants are
issued, however, due to their non-service, evidence of the witnesses could not
be recorded. It seems that the that the prosecution itself is responsible for the
delay.
In view of the law laid down in Satender Kumar Antil (supra) and the
fact that applicants are under custody for more than 17 months now and the
delay in trial is caused due to the fault of prosecution, these applications are
allowed.
It is directed that applicants be released on bail on furnishing a personal
bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) each with two
sureties in the like amount to the satisfaction of the trial Court/committal Court
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
for their appearance on the dates given by the concerned Court. It is further
directed that the applicants shall also comply with the provisions of Section
437(3) of Cr.P.C.
Certified copy as per rules.
(NANDITA DUBEY)
JUDGE
gn
Signature Not Verified
Signed by: SMT. GEETHA
NAIR
Signing time: 1/13/2023
5:08:58 PM
