Madhya Pradesh High Court
Saurabh Singh vs The State Of Madhya Pradesh on 7 March, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:10998
1 MCRC-6821-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 7 th OF MARCH, 2025
MISC. CRIMINAL CASE No. 6821 of 2025
SAURABH SINGH
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Narinder Pal Singh Ruprah - Senior Advocate with Shri Navtej Singh
Ruprah - appeared for the applicant.
Shri Vijay Kumar Pandey- G.A. appearing on behalf of respondent/State.
ORDER
This is the first bail application filed by applicant under Section 483 of
Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of bail.
2. The applicant is in jail since 17.01.2025 in connection with Crime
No.35/2025, registered at Police Station- Chorhahta District Rewa (M.P.) for the
offence under Sections 8/20(B), 25 & 29A of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
3. Prosecution story, in brief, is that at alleged date, time and place co-
accused Satendra, Bijendra and Uttam were found transporting 60 Kg. 730gm
Ganja in truck bearing registration No.CG-04-NZ-7870 and allegation against
present applicant is that aforesaid Ganja was meant to be supplied to present
applicant and he was there to receive the same.
4. Learned Senior counsel for the applicant submits that in the instant case,
applicant is owner of Bolero bearing registration No.MP-17-CA-5884 and he was
driving aforesaid vehicle at relevant point of time but nothing incriminating article
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has been recovered from either Bolero or from the person of present applicant. In
Bolero, Mayank and Lokesh were also traveling. It is also urged that there is
nothing on record to point out involvement of present applicant in instant offence
in any manner whatsoever. It is also urged that present applicant was never in
touch with co-accused persons Satendra, Bijendra and Uttam. Thus, there is no
prima facie, evidence against present applicant pointing out to his involvement in
the instant offence. Therefore, there is no point in keeping applicant behind the
bar. With respect to aforesaid, learned Senior counsel for the applicant has relied
upon Sohil Khan Vs. State of Madhya Pradesh, 2025 SCC Online MP 358 and
Akhilesh Ragde Vs. State of Madhya Predesh, 2024 SCC OnLine MP 9396 .
5. Learned Senior counsel for the applicant has also submitted that in the
instant case, mandatory provisions of Section 52-A of NDPS Act as well as other
provisions of NDPS Act has not been complied with. It is also urged that sample
has been drawn on the spot but not in the presence of Judicial Magistrate. It is
also urged that in the instant case, packets were opened and they were mixed on
the spot itself. With respect to above, learned Senior Counsel has relied upon
Vishal Shahni Vs. State of M.P. in CRA No.4576 of 2023 on 29.2.2024, Kamlesh
Vs. State of M.P., 2023 SCC OnLine MP 8764 and Yusuf @ Asif Vs. State of
M.P., 2023 SCC OnLine SC 1328 . It is also urged that at that time of incident
applicant was transporting mattresses in the Bolero. It is also urged that there is no
criminal antecedents against present applicant and on above grounds, it is urged
that applicant be released on bail.
6. Learned counsel for the respondent/State, on the other hand, has opposed
the application.
7. Heard. Perused record of the case.
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8. This Court has examined submissions of learned counsel for the parties
minutely in the light of documents available on record and in the light of
principles laid down in Bharat Aambale Vs. The State of Chhastisgarh in Criminal
Appeal No.250 of 2025 and Narcotics Control Bureau Vs. Kashif 2024 SCC
Online SC 3848, Union of India through Narcotics Control Bureau, Lucknow Vs.
Md. Nawaz Khan in Criminal Appeal No.1043 of 2021 and Narcotics Control
Bureau Vs. Mohit Aggarwal (2022) 18 SCC 374.
9. Perusal of submissions of learned Senior Counsel for applicant reveals
that one of the primary submission of learned Senior Counsel for the applicant is
that of non-compliance of Section 52-A of NDPS Act etc. and reliance on Union
Of India Vs. Mohan Lal and Another (2016) 3SCC 379. With respect to aforesaid,
principles laid down in Kashif (supra) and Bharat Aambale (supra) are relevant
and material because in aforesaid cases, Hon'ble Apex Court has dealt above issue
in detail.
10. Hon'ble Apex Court in para-50 of Bharat Aambale Vs. The State of
Chhastisgarh (Supra) has summarized final conclusion as under:-
"50. We summarize out final conclusion as under:-
(I) Although Section 52A is primarily for the disposal and
destruction of seized contraband in a safe manner yet it
extends beyond the immediate context of drug disposal, as it
serves a broader purpose of also introducing procedural
safeguards in the treatment of narcotics substance after
seizure inasmuch as it provides for the preparation of
inventories, taking of photographs of the seized substances
and drawing samples therefrom in the presence and with the
certification of a magistrate. Mere drawing of samples in
presence of a gazetted officer would not constitute sufficient
compliance of the mandate under Section 52A sub-section
(2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of
samples from the seized substance must take place at the
time of seizure as held in Mohanlal (supra), yet we are of the
opinion that the process of inventorying, photographing and
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drawing samples of the seized substance shall as far as
possible, take place in the presence of the accused, though
the same may not be done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized
substance prepared in substantial compliance of the
procedure prescribed under Section 52A of the NDPS Act
and the Rules / Standing Order(s) thereunder would have to
be mandatorily treated as primary evidence as per Section
52A sub-section (4) of the NDPS Act, irrespective of
whether the substance in original is actually produced before
the court or not.
(IV) The procedure prescribed by the Standing Order(s) /
Rules in terms of Section 52A of the NDPS Act is only
intended to guide the officers and to see that a fair procedure
is adopted by the officer in-charge of the investigation, and
as such what is required is substantial compliance of the
procedure laid therein.
(V) Mere non-compliance of the procedure under Section
52A or the Standing Order(s) / Rules thereunder will not be
fatal to the trial unless there are discrepancies in the physical
evidence rendering the prosecution's case doubtful, which
may not have been there had such compliance been done.
Courts should take a holistic and cumulative view of the
discrepancies that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully keeping
in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confidence and
satisfies the court as regards the recovery as-well as
conscious possession of the contraband from the accused
persons, then even in such cases, the courts can without
hesitation proceed to hold the accused guilty
notwithstanding any procedural defect in terms of Section
52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said
provision or rules thereunder may lead the court to drawing
an adverse inference against the prosecution, however no
hard and fast rule can be laid down as to when such
inference may be drawn, and it would all depend on the
peculiar facts and circumstances of each case.
(VIII) Where there has been lapse on the part of the police in
either following the procedure laid down in Section 52A of
the NDPS Act or the prosecution in proving the same, it will
not be appropriate for the court to resort to the statutory
presumption of commission of an offence from the
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possession of illicit material under Section 54 of the NDPS
Act, unless the court is otherwise satisfied as regards the
seizure or recovery of such material from the accused
persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the
foundational facts to show that there was non-compliance of
Section 52A, either by leading evidence of its own or by
relying upon the evidence of the prosecution, and the
standard required would only be preponderance of
probabilities.
(X) Once the foundational facts laid indicate non-
compliance of Section 52A of the NDPS Act, the onus
would thereafter be on the prosecution to prove by cogent
evidence that either (i) there was substantial compliance
with the mandate of Section 52A of the NDPS Act OR (ii)
satisfy the court that such non-compliance does not affect its
case against the accused, and the standard of proof required
would be beyond a reasonable doubt."
11. Hon'ble Apex Court in Narcotics Control Bureau (Supra) in para-39
has summarized the law as under:-
"39. The upshot of the above discussion may be summarized as under:-
(i) The provisions of NDPS Act are required to be
interpreted keeping in mind the scheme, object
and purpose of the Act; as also the impact on the
society as a whole. It has to be interpreted
literally and not liberally, which may ultimately
frustrate the object, purpose and Preamble of the
Act.
(ii) While considering the application for bail, the
Court must bear in mind the provisions of
Section 37 of the NDPS Act which are mandatory
in nature. Recording of findings as mandated in
Section 37 is sine qua non is known for granting
bail to the accused involved in the offences under
the NDPS Act.
(iii) The purpose of insertion of Section 52A
laying down the procedure for disposal of seized
Narcotic Drugs and Psychotropic Substances,
was to ensure the early disposal of the seized
contraband drugs and substances. It was inserted
in 1989 as one of the measures to implement and
to give effect to the International Conventions on
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the Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the
procedure as contemplated in sub-section (1)
thereof, and any lapse or delayed compliance
thereof would be merely a procedural irregularity
which would neither entitle the accused to be
released on bail nor would vitiate the trial on that
ground alone.
(v) Any procedural irregularity or illegality found
to have been committed in conducting the search
and seizure during the course of investigation or
thereafter, would by itself not make the entire
evidence collected during the course of
investigation, inadmissible. The Court would
have to consider all the circumstances and find
out whether any serious prejudice has been
caused to the accused.
(vi) Any lapse or delay in compliance of Section
52A by itself would neither vitiate the trial nor
would entitle the accused to be released on bail.
The Court will have to consider other
circumstances and the other primary evidence
collected during the course of investigation, as
also the statutory presumption permissible under
Section 54 of the NDPS Act."
10. Thus, perusal of Narcotics Control Bureau Vs Kashif (Supra) and
Bharat Aambale Vs. The State of Chhastisgarh (Supra) reveal that therein Hon'ble
Apex Court has examined provisions of NDPS Act, standing orders/Rules,
judgment of Union of India Vs. Mohan Lal & Anr. reported in (2016) 3 SCC 379 ,
including The Narcotic Drugs and Psyschotropic Substances (Seizure, Storage,
Sampling and Disposal) Rules, 2022.
12. Hence, even if, the illegalities/infirmities as pointed out by learned
Senior counsel for the applicant in the investigation are taken into consideration,
still, evidence available at this stage, clearly prima-facie establish recovery of
contraband from co-accused Satendra, Bijendra and Uttam. In the instant case, the
contraband allegedly recovered from above co-accused is of commercial quantity.
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Therefore, provisions of Section 37 of NDPS Act would also apply.
13. Perusal of case diary reveals that in the instant case, one mobile from
applicant, one mobile from Uttam Singh has been recovered in the instant case and
as per contents of memorandum of applicant as well as co-accused, allegation
against present applicant is that the contraband allegedly recovered from the truck
was meant to be supplied to present applicant.
14. It is correct that nothing has been recovered from present applicant and
he has been made accused on the basis of memorandum of co-accused persons.
But in the instant case, recovered contraband is of commercial quantity and
provisions of Section 37 of NDPS Act are applicable to the facts of the instant
case. Further, from principles of law laid down by Hon'ble Apex Court in Union
of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan in
Criminal Appeal No.1043 of 2021 and Narcotics Control Bureau Vs. Mohit
Aggarwal (2022) 18 SCC 374, it is well established that absence of recovery of
contraband from possession of accused is by itself not a ground for grant of bail.
15. In view of aforesaid, in this Court's considered opinion, applicant is not
entitled to be released on bail. On account of factual difference, principles laid
down in Sohil Khan (supra) , Akhilesh Ragde (Supra), Kamlesh (supra) and Yusuf
@ Asif (supra) does not help applicant in any way. Hence, applicant is not
entitled to be released on bail.
16. Hence, having regard to overall evidence available on record and nature
thereof with respect to applicant's involvement in the offence and in view of law
laid down by Hon'ble Apex Court in Narcotics Control Bureau (Supra) and
Bharat Aambale (Supra), Md. Nawaz Khan (supra) and Mohit Aggarwal (supra)
as well as provisions of Section 37 of NDPS Act, in this Court's considered
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opinion, applicant is not entitled to be released on bail.
17. Having regard to overall facts and circumstances of the case, I deem it
not proper to release the applicant on bail.
18. Hence, application filed by the applicant is hereby dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
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