Madhya Pradesh High Court
Vipin Tiwari vs The State Of Madhya Pradesh on 6 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
ON THE 6 th OF MAY, 2024
MISC. CRIMINAL CASE No. 11109 of 2024
BETWEEN:-
VIPIN TIWARI S/O SHRI VIPIN TIWARI, AGED ABOUT 28
YE A R S , OCCUPATION: LABOURER R/O VILLAGE
DHAWAIYA P.S. CHOHATA DISTRICT REWA (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI PRAKASH UPADHYAY - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
AMARPATAN DISTRICT SATNA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PANKAJ TIWARI - PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This is first application filed by the applicant under Section 439 of the
Cr.P.C. for grant of regular bail relating to FIR No.419 of 2023, registered at
Police Station - Amarpatan, District-Satna (M.P.) for commission of offence
punishable under Sections 8, 20, 21 and 22 of NDPS Act and also under
Section 5/13 of M.P. Drug Control Act. Applicant is in detention since
05.08.2023.
2. As per the prosecution story, 1920 bottles of Onerex Cough Syrup
was seized from the joint possession of applicant and co-accused person. FIR
was registered.
3 . Learned counsel for the applicant submits that applicant has not
committed any offence. He is innocent and has been falsely implicated in this
case. It is further submitted that the applicant has been made accused only on
the basis of memorandum of co-accused. It is further submitted that FSL
report should be filed alongwith charge sheet but in this case FSL report has
not been filed alongwith the charge sheet, therefore, applicant is entitled to get
bail under Section 167(2) of Cr.P.C but the trial Court has erroneously rejected
his bail application. Present applicant was neither the driver nor the owner or
passenger of the bus or bolero in which alleged contraband was kept. He was
just a passenger standing near the bus. It is also submitted that no individual
notice has been given to the applicant and co-accused persons but joint notice
was given to them which is against the provision of NDPS Act. Trial of the case
will take time. Therefore, it is prayed that the applicant may be released on bail
pending the trial. In support of his submission, learned counsel has placed
reliance in the case of Mohd. Arbaz and ors Vs. State of NCT of Delhi
(Special Leave to Appeal (CrI.) No. 8164/2021), Arif Khan Vs. State
(Special Leave to Appeal (CrI.) No.8610/2023) and Pankaj Gupta Vs.
Narcotics Control Bureau (Special Leave to Appeal (CrI.)
No.12200/2023) .
4 . O n the other hand, learned counsel for the State has vehemently
opposed the prayer for grant of bail and submitted that FSL report has been
received and kept in the case diary. It is further submitted that 1920 bottles of
cough syrup has been seized from the possession of the applicant and co-
accused persons which were transported from the bus and were keeping in the
bolero. Six persons were present there who have actively participated in the
crime.
5. Learned counsel for the State submits that the present case pertains to
recovery of 1920 bottles of cough syrup, which is a commercial quantity, from
the possession of accused persons who are allegedly involved in trade of
narcotic drugs. It is argued that in the case of Mohd Arbaz (supra), the Hon'ble
Apex Court has only opted to examine the legal issue in detail and for the time
being, interim relief has been granted to the petitioners. It also stated that till the
issue in question i.e. whether a charge-sheet filed without FSL report is
complete or incomplete for the purpose of default bail is decided by the
Hon'ble Apex Court, the prevailing law will cover the present case and the
petitioner will not be entitled to grant of default bail.
6. Heard learned counsel for the parties and perused the record.
7. The present application has been filed seeking default bail on the
ground of non-filing of FSL report alongwith the chargesheet, and the main
grievance of applicant is that the trial Court has erroneously declined the relief
of default bail to him
8. It is pertinent to mention here that in recent judgment of Supreme
Court delivered in the case of CBI. Vs. Kapil Wadhawan 2024 SCC
OnLine SC 66, wherein it was held as under:
"22. In view of the above settied legal position, there remains
no shadow of doubt that the statutory requirement of the report
under Section 173 (2) would be complied with if the various details
prescribed therein are included in the report. The report under
Section 173 is an intimation to the court that upon investigation into
the cognizable offence, the investigating officer has been able to
procure sufficient evidence for the court to inquire into the offence
and the necessary information is being sent to the court. The report
is complete if it is accompanied with all the documents and
statements of witnesses as required by Section 175 (5). As settled in
the afore-stated case, it is not necessary that all the details of the
offence must be stated.
23. The benefit of proviso appended to sub-section (2) of
Section 167 of the Code would be available to the offender only
when a chargesheet is not filed and the investigation is kept pending
against him. Once however, a chargesheet is filed, the said right
ceases. It may be noted that the right of the investigating officer to
pray for further investigation in terms of sub-section (8) of Section
173 is not taken away only because a chargesheet is filed under sub-
section (2) thereof against the accused. Though ordinarily all
documents relied upon by the prosecution should accompany the
chargesheet, nonetheless for some reasons, if all the documents are
not filed along with the chargesheet, that reason by itself would not
invalidate or vitiate the chargesheet. It is also well settled that the
court takes cognizance of the offence and not the offender. Once
from the material produced along with the chargesheet, the court is
satisfied about the commission of an offence and takes cognizance
of the offence allegedly committed by the accused, it is immaterial
whether the further investigation in terms of Section 173(8) is
pending or not. The pendency of the further investigation qua the
other accused or for production of some documents not available at
the time of filing of chargesheet would neither vitiate the chargesheet,
nor would it entitle the accused to claim right to get default bail on
the ground that the chargesheet was an incomplete chargesheet or
that the chargesheet was not filed in terms of Section 173(2) of Cr.
P.C."
9. Though in cases of Mohd. Arbaz & Ors Vs. State of NCT of Delhi
(supra), Arif Khan Vs. State (supra) and Pankaj Gupta Vs. Narcotics Control
Bureau (supra), the accused persons have been enlarged on interim bail by the
Hon'ble Apex Court.
10. It is pertinent to mention here that, interim bail has been declined by
the Apex Court in the case of CBI. Vs. Kapil Wadhawan (supra), Pabitra
Narayan Pradhan Vs. The State (NGT) of Delhi (SLP (crI.) Diary No.
43791 of 2023), Shankar @ Shiva Maheshwar Savai Vs. The State of
Gujarat (order dated 03.03.2023 in SLP (CrI) No.2562/2023)
11. Therefore, in view of the aforesaid discussion, there is no ground for
grant of default bail to the present applicant.
12. Looking to the seriousness of offence, huge quantity of contraband
and opposition on behalf of the State as well as the bar of Section 37 of NDPS,
I am not inclined to grant bail to the applicant.
13. Accordingly, the present application stands dismissed.
(PRAMOD KUMAR AGRAWAL)
JUDGE
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