Nafr High Court
Case Details
1 2025:CGHC:5574 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCRC No. 99 of 2025 1 - Raju Malviya S/o Ramchandra Malviya Aged About 28 Years R/o Ward No. 12, Ravanbaldi, Machalpur, Police Station - Machalpur, District - Rajgarh (M.P.) versus ... Applicant 1 - State Of Chhattisgarh Through Station House Officer, Police Station - Dongripali, District - Sarangarh - Bhilaigarh (C.G.) ... Non-Applicant For Applicant
Legal Reasoning
“12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar (2018) 13 SCC 808 , (2019) 1 SCC (Cri) 420].” 10. In the matter of Union of India Vs. Mohd. Nawaz Khan4, the issue of conscious possession when a contraband has been found in a private vehicle has been explained and the following was observed at para-26:- “26. What amounts to “conscious possession” was also considered in Dharampal Singh v. State Of Punjab . (2010) 9 SCC 608 , (2010) 3 SCC (Cri) 1431, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State Of Rajasthan . (2015) 6 SCC 222 , (2015) 3 SCC (Cri) 881, this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.” 11. Considering the principles laid down in the matter of State of Kerala Vs. Rajesh (Supra), this Court is of the view that if any procedure has not been followed, the same shall be seen during trial after leading evidence in this regard. This Court does not find any reasonable ground to believe that the applicant is not guilty of offence and he may not commit any offence while on bail. 4 (2021) 10 SCC 100 6 12. Since huge quantity of contraband has been seized from the possession of the applicant and this Court has already observed that substantial compliance has been done, the judgment relied on by counsel for the applicant is of no help to the applicant.
Arguments
: Shri Dhirendra Prasad Mishra, Advocate. For Non-Applicant : Shri Anurag Tripathi, Panel Lawyer. Hon'ble Shri Deepak Kumar Tiwari, J Order On Board 30/01/2025 : 1. The applicant has preferred this application for grant of bail as he is arrested in connection with Crime No.13/2022 registered at Police Station Dongripali, District Sarangarh-Bhilaigarh for offence under Section 20 (b) of the NDPS Act. KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.01.30 16:22:25 +0530 2 2. This is the 2nd bail application on behalf of the applicant. The earlier bail application has been dismissed as withdrawn with liberty to revive the same after examination of seizure witnesses. 3. Prosecution case is that on the basis of secret information that the applicant along with other accused persons was to illegally transport contraband Ganja in an unnumbered White Colour Bolero Pickup from Sohela (Odisha) through the main road of Baramkela, a raid was conducted and the applicant and other accused persons were apprehended. After completion of search and seizure operations, it was found that the applicant was possessing 100 kg of contraband Ganja. 4. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated. The procedure prescribed under Sections 42 to 50 & Section 52 of the NDPS Act has not been complied with. Even Samras Panchnama has also not been made in accordance with law. Photocopy has not been done on the spot. All the seizure witnesses have turned hostile. The applicant is in jail since 21st March, 2022 and 14 witnesses have been cited by the prosecution, out of which only 4 witnesses have been examined so far. Reliance is placed in the matter of Laxman Thakur Vs. State (Govt of NCT of Delhi) decided by the Delhi High Court on 14.12.2022. Considering all these aspects, the applicant may be released on bail. 5. On the other hand, learned State Counsel would oppose the bail application. He submits that the grounds which have been raised shall be considered at the time of trial and only because seizure witnesses have turned hostile is not a ground for acquittal. He submits that more than 5 3 times of the commercial quantity i.e. 100 kg Ganja has been recovered from the possession of the applicant, which was to be transported in unnumbered Bolero Pickup vehicle from Sohela (Odhisha) and the raid was conducted on the main road of Baramkela. The applicant is the resident of District Rajgarh (MP) and he has not offered satisfactory explanation regarding his presence. Looking to the commercial quantity of the contraband, rigor of Section 37 of the NDPS Act attracts. 6. I have heard learned counsel for the parties at length and perused the documents available on record. 7. In the matter of State of Kerala Vs. Rajesh1, the law relating to exercise of bail application in the offences under the NDPS Act has been dealt and the following was observed at para-18:- 18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh (1999) 9 SCC 429 , 1999 SCC (Cri) 1522, it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) (1990) 1 SCC 95 , 1990 SCC (Cri) 65 as under: (SCC p. 104, para 24) 1 (2020) 12 SCC 122 4 ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 8. In the matter of Narcotics Control Bureau Vs. Mohit Aggarwal2, it was held thus:- “…………...The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.” 9. In the matter of Rizwan Khan Vs. State of Chhattisgarh3, a principle has been reiterated that the independent witnesses have turned hostile, 2 2022 SCC OnLine SC 891 3 (2020) 9 SCC 627 5 when there is reliable official witness is no ground for acquittal under the NDPS Act. It was materially observed at para-12 which reads thus:-
Decision
13. For the foregoing reasons, the bail application is rejected. It is made clear that the observations made hereinabove shall not be construed as an opinion on the merits of the case and the trial Court shall decide the case, on its own merits, strictly in accordance with law and in expeditious manner. Sd/- Judge (Deepak Kumar Tiwari) Barve