Madhya Pradesh High Court
Sunil Dulhani vs The State Of Madhya Pradesh on 16 May, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 16 th OF MAY, 2024
MISC. CRIMINAL CASE No. 18800 of 2024
BETWEEN:-
SUNIL DULHANI S/O SHRI GAGANDAS DULHANI, AGED
ABOUT 30 YEARS, OCCUPATION: MARKETING R/O
SANMATI NAGAR INDORE ROAD POLICE STATION
PADAM NAGAR TEHSIL AND DISTRICT KHANDWA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI HAKIM KHAN QURESHI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION MOGHAT ROAD DISTRICT KHANDWA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SANJAY KUMAR MALVI - PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This is the fifth application filed by the applicant under Section 439 of the
Cr.P.C. for grant of regular bail relating to FIR No.399/2022, dated 29.08.2022,
registered at Police Station-Moghat Road, District-Khandwa (M.P.) for
commission of offence under Sections 8, 22 and 29 of the Narcotic Drugs and
Psychotropic Substances Act. Applicant is in detention since 29.08.2022.
2. Applicant's first & fourth bail applications were dismissed as withdrawn
and not pressed vide orders dated 20.02.2023 & 24.01.2024 passed in M.Cr.C.
No.51959 of 2022 & M.Cr.C. No.2365 of 2024 respectively. His second &
third bail applications were dismissed on merit by passing detailed orders vide
orders dated 10.05.2023 & 16.08.2023 passed in M.Cr.C. No.16597 of 2023 &
M.Cr.C. No.27020 of 2023 respectively.
3. As per the prosecution story, on 29.08.2022, on the basis of secret
information received from the informer, two motorcycles bearing registration
No. MP-12-MU-3176 and MP-12-MF-2708 on which 2-2 persons were riding,
were intercepted. The riders of first motorcycle introduced themselves as Anil
Borse s/o Murlidhar Borse and Sunil @ Sonu S/o Gagandas Dulhani, whereas,
riders of second motorcycle introduced themselves as Bablu S/o Shriram Patel
and Mohsin S/o Farooq. Notice under section 50 of the NDPS Act was served
upon them and they were informed to their right to give search before
Magistrate or some Gazetted officer. They permitted ASI Indrajeet Singh
Chauhan to conduct the search. In search of the motorcycle bearing registration
No. MP-12-MU-3176, one white coloured bag was found hanging on it. In the
bag six packets in which 10-10 strips of 60-60 tablets of Alparzolam Tablets
IP 0.mg, Alprasafe-0.5 were kept in six packets, in total 60 strips containing
3600 tablets was seized. In the second motorcycle bearing No.MP-12-MF-2708
60 strips containing 3600 tablets was seized. In total 7200 tablets were seized
from the possession of the applicants. FIR was registered. After investigation,
charge sheet has been filed.
4. Applicant had challenged the order dated 16.08.2023 passed in M.Cr.C.
No.27020 of 2023 by filing Special Leave Appeal (Crl.) No.14306 of 2023
(Sunil Dulhani Vs. The State of Madhya Pradesh) before Hon'ble the Apex
Court. Hon'ble the Apex Court vide order dated 09.11.2023 passed therein
dismissed the said SLP and it was made clear by Hon'ble the Apex Court that
the order of dismissal of SLP will not come in the way of filing a fresh
application for grant of bail in case of change in circumstances or if the trial gets
prolonged due to reasons not attributable to the petitioner or co-accused. If any
such application is filed, the same will be considered and decided in accordance
with law.
5. Learned counsel for the applicant has submitted that applicant has not
committed any offence. He is innocent. He has been falsely implicated. He has
no criminal background. No Alparzolam IP 0.mg or Alprasafe-0.5 tablets were
seized from his possession. Prayer for bail is pleaded on the ground that
provisions of Section 52-A of the NDPS Act were not duly followed. Reliance
is placed on decision of Hon'ble the Apex Court vide judgment dated
09.05.2023 passed in Criminal Appeal No1443 of 2023 (Simarnjit Singh Vs.
State of Punjab). On the aforesaid pretext, it is prayed that applicant may be
released on bail, pending the trial.
6. On the other hand, learned counsel for the State has opposed prayer for
the grant of bail and has submitted that applicant's two bail applications have
already been dismissed on merit by passing detailed orders by this Court. It is
submitted that SLP filed before Hon'ble the Apex Court by the present
applicant too has been dismissed. There is no change in the circumstances of
the case. It is also submitted that in Simarnjit Singh's case, conviction was set-
aside by Hon'ble the Apex Court in appeal as conviction recorded by the trial
Court was affirmed by the High Court. As far question of vitiated compliance
of Section 52-A of NDPS Act is concerned, the objection in this regard have to
be raised before the trial Court in the course of trial. It is submitted that at the
time of considering the bail application, provision of Section 37 of the NDPS
Act only has to be taken into consideration.
7. I have heard learned counsel for the parties and perused the material
available on record.
8. Applicant's second & third bail application were dismissed on merit by
detailed orders and thereafter, Criminal Appeal No.14306 of 2023 filed against
the order dated 16.08.2023 passed in M.Cr.C. No.27020 of 2023 has also been
dismissed by Hon'ble the Apex Court. There is no change in the circumstances
of the case. As far as vitiated compliance of Section 52-A is concerned, that is
a matter of trial and objections can be raised at proper stage of trial. Though on
perusal of the case diary, it is revealed that prima-facie complaince of Section
52-A of the NDPS Act has been done. This is a matter of recovery of
commercial quantity of narcotic drug from possession of applicant & other co-
accused.
9. Therefore, having taken into consideration all the facts & circumstances of
the case and the fact that there is no change in the circumstances & also the fact
that there is no delay in the trial, I am of the view that it is not a fit case for grant
of bail. Consequently, this fifth bail application too under Section 439 of the
Code of Criminal Procedure for grant of bail filed on behalf of applicant -
Sunil Dulhani stands dismissed.
(DINESH KUMAR PALIWAL)
JUDGE
@shish
