Madhya Pradesh High Court
Guruvaj Singh vs The State Of Madhya Pradesh on 7 February, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 7 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 1965 of 2024
BETWEEN:-
GURUVAJ SINGH S/O AJEB SINGH NARAHAN, AGED 31
YEARS, R/O PIND DUGALKALA PATRANA PATRAAN
PATIALA PUNBAB
.....APPLICANT
(SHRI PIYUSH PATHAK- ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION KOLARAS DISTRICT SHIVPURI (MADHYA
PRADESH)
.....RESPONDENT
(SHRI R.K. AWASTHI- PUBLIC PROSECUTOR)
This application coming on for hearing this day, the court passed the
following:
ORDER
This first bail application has been filed by applicant under Section 439
of the Code of Criminal Procedure, 1973 for grant of bail in connection with
Crime No.307/2023 registered at Police Station Kolaras, District Shivpuri
(M.P.), for offence punishable under Sections 8/15 of NDPS Act. The
applicant is in judicial custody since 10.09.2023.
As per the prosecution case, Sub- Inspector Ankit Upadhyay of Police
Station Kolaras on secret information, intercepted Truck No. PB 03 BG 3652
on AB Road Kolaras on 10.09.2023. Guruvraj Singh (present applicant) was
driving the truck. The truck was searched in compliance with the rule. The
higher officials were informed. Statement of Guruvraj was recorded under
Section 27 of the Evidence Act. Guruvraj informed that he is transporting
poppy straw in the truck. Seven bags containing contraband poppy straw, total
quantity 154 kg was found load in the truck. The contraband poppy straw was
seized in compliance with the rule. After taking sample from each of the bags,
the contraband was sealed. On such allegation, Police Station Kolaras, District
Shivpuri registered FIR at Crime No.307 of 2023 for offence punishable under
Section 8/15 of NDPS Act as Guruvraj failed to produce any licence or permit
with regard to jurisdiction of contraband poppy straw. Applicant was arrested
on 10.09.2023. He is in custody ever since. Investigation is underway.
Learned counsel for the applicant in addition to the grounds mentioned in
the application submits that applicant is falsely implicated in the matter. Learned
counsel referring to the judgment of Supreme Court in case of Rajesh Vs. State
of M.P. 2023 SCC Online SC 1202 contends that at the time of recording of
statement under Section 27 of the Evidence Act, applicant was not accused of
any offence. Further, he was not in custody of Police Officer, therefore, the
recovery in furtherance of statement recorded under Section 27 of the Evidence
Act is not admissible against the applicant. Learned counsel referring to the
Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022 contends that no classification of contraband was done
in presence of search witnesses. Further, sampling was not done in compliance
with the Rules 9 and 10 of the Rules. Learned counsel referring to the judgment
of Supreme Court in case of Union of India Vs. Bal Mukund (2009) 12
SCC 161 and the Delhi High Court in case of Amani Fidel Chris Vs.
Narcotics Control Bureau passed in Criminal Appeal No.1027 of 2015
order dated 13.03.2020 contends that the rules with regard to seizure,
sampling and storage of contraband cannot be flouted. Non-compliance with
the rules vitiates the prosecution. Learned counsel further contends that FIR
shows non-compliance with Sections 42 and 50 of the NDPS Act, therefore, no
offence as alleged made out against the applicant. No criminal antecedent is
reported against the applicant. There is no likelihood of repeat of offence by the
applicant. Applicant has already undergone custody of five months. There is no
likelihood of his absconsion or tampering with evidence. Investigation and trial
would take time to conclude. Therefore, applicant may be extended benefit of
bail.
Per contra, learned counsel for the State opposes the bail application and
submits that 154 kg quantity of poppy straw is recovered and seized from the
possession of applicant. The chemical test conducted by Forensic Science
Laboratory substantiates that contraband is poppy straw. There is due
compliance with the rules with regard to seizure, sampling and storage of seized
material. The veracity of investigation will be tested at the trial. There is nothing
in the case-diary to suggest that the test kit also contained drug detection kit.
Therefore, non-classification by the drug detection kit on the spot would not
per se vitiate the investigation for the reason that the rules provide for
classification by drug detection kit, if it is available. Learned counsel further
submits that commercial quantity was recovered from conscious possession of
the applicant. Therefore, the applicant may not be extended benefit of bail.
Heard both the parties and perused the record.
As per the case of prosecution, the Investigation Officer had secret
information with regard to transport of contraband in the truck, therefore, the
applicant was suspect of the offence, he was intercepted and taken into
custody. In such a scenario, the twins conditions for recovery on the basis of
information under Section 27 of the Evidence Act, that applicant was "accused
of offence" and he was "in custody of Police Officer" are made out. Recently
in case of Perumal Raja @ Perumal Vs. State Rep. by Inspector of Police
(2024) SCC Online SC 12 Hon'ble Supreme Court relying Constitution Bench
judgment in case of State of U.P. Vs. Deoman Upadhyay AIR 1960 SC
1125 observed as under:-
26. Reference is made to a recent decision of this Court in Rajesh v. State of Madhya
Pradesh13, which held that formal accusation and formal police custody are essential
pre-requisites under Section 27 of the Evidence Act. In our opinion, we need not dilate
on the legal proposition as we are bound by the law and ratio as laid down by the
decision of a Constitution Bench of this Court in State of U.P. v. Deoman
Upadhyaya14. The law laid down by this Court in a decision delivered by a Bench of
larger strength is binding on any subsequent Bench of lesser or coequal strength.15 This
Court in Deoman Upadhyay (supra) observed that the bar under Section 25 of the
Evidence Act applies equally whether or not the person against whom evidence is
sought to be led in a criminal trial was in custody at the time of making the confession.
Further, for the ban to be effective the person need not have been accused of an
offence when he made the confession. The reason is that the expression "accused
person" in Section 24 and the expression "a person accused of any offence" in Sections
26 and 27 have the same connotation, and describe the person against whom evidence is
sought to be led in a criminal proceeding. The adjectival clause "accused of any
offence" is, therefore, descriptive of the person against whom a confessional statement
made by him is declared not provable, and does not predicate a condition of that person
at the time of making the statement.
27. Elaborating on this aspect, a three judge Bench of this Court in Aghnoo
Nagesia v. State of Bihar16 has held that if the FIR is given by the accused to a police
officer and amounts to a confessional statement, proof of the confession is prohibited by
Section 25 of the Evidence Act. The confession includes not only the admission of the
offence but all other admissions of incriminating facts related to the offence, except to
the extent that the ban is lifted by Section 27 of the Evidence Act. While dealing with
the admission of part of confession report dealing with motive, subsequent conduct and
opportunity, this Court rejected the severability test adopted by some High Courts. The
statement can, however, be relied upon and admitted to identify the accused as the
maker, and the portion within the purview of Section 27 of the Evidence Act is
admissible. Aghnoo Nagesia (supra) has been applied and followed by this Court
in Khatri Hemraj Amulakh v. State of Gujarat.17.
28. The words "person accused of an offence" and the words "in the custody of a
police officer" in Section 27 of the Evidence Act are separated by a comma. Thus, they
have to be read distinctively. The wide and pragmatic interpretation of the term "police
custody" is supported by the fact that if a narrow or technical view is taken, it will be
very easy for the police to delay the time of filing the FIR and arrest, and thereby evade
the contours of Sections 25 to 27 of the Evidence Act. Thus, in our considered view the
correct interpretation would be that as soon as an accused or suspected person comes
into the hands of a police officer, he is no longer at liberty and is under a check, and is,
therefore, in "custody" within the meaning of Sections 25 to 27 of the Evidence Act. It is
for this reason that the expression "custody" has been held, as earlier observed, to
include surveillance, restriction or restraint by the police.
29. This Court in Deoman Upadhyay (supra), while rejecting the argument that the
distinction between persons in custody and persons not in custody violates Article 14 of
the Constitution of India, observed that the distinction is a mere theoretical possibility.
Sections 25 and 26 were enacted not because the law presumed the statements to be
untrue, but having regard to the tainted nature of the source of the evidence, prohibited
them from being received in evidence. A person giving word of mouth information to
police, which may be used as evidence against him, may be deemed to have submitted
himself to the "custody" of the police officer. Reference can also be made to decision of
this Court in Vikram Singh v. State of Punjab18, which discusses and applies Deoman
Upadhyay (supra), to hold that formal arrest is not a necessity for operation of Section
27 of the Evidence Act. This Court in Dharam Deo Yadav v. State of Uttar Pradesh19,
has held that the expression "custody" in Section 27 of the Evidence Act does not mean
formal custody, but includes any kind of surveillance, restriction or restraint by the
police. Even if the accused was not formally arrested at the time of giving information,
the accused is, for all practical purposes, in the custody of the police and the
bar vide Sections 25 and 26 of the Evidence Act, and accordingly exception under
Section 27 of the Evidence Act, apply. Reliance was placed on the decisions in State of
A.P. v. Gangula Satya Murthy20 and A.N. Vekatesh v. State of Karnataka21.
The case-diary reveals compliance with the provisions of Section 42 of
the NDPS Act. The case-diary further reveals that seized contraband was
forwarded to Judicial Magistrate, Kolaras on 23.09.2023 for sampling in
compliance with the rule. The propriety of investigation and due compliance
with the rule and procedure will be tested after the evidence is led in the trial.
Vijaysinh Chandubha Jadeja Vs. State of Gujarat (2011) 1 SCC 609 Para
31 relied). It cannot be inferred that the applicant has not committed the alleged
offence.
At this initial stage, when the investigation itself is not complete, it would
not be appropriate to express opinion on merits of the investigation. The fact
remains that commercial quantity of contraband poppy straw was seized from
conscious possession of the applicant, therefore, no case is made out for grant
of bail in view of interdict contained in Section 37(1)(b) of the NDPS Act.
Consequently, the application under Section 439 of CrPC sans merit and
is hereby dismissed.
(SANJEEV S KALGAONKAR)
JUDGE
Avi
