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Madhya Pradesh High Court · body

2010 DIGILAW 1082 (MP)

In Reference : Vijay Kesharwani v. .

2010-10-25

R.C.MISHRA

body2010
ORDER 1. This M.Cr.C. for cancellation of hail has been registered in pursuance of order dated 13.7.20 10 passed in Mr.C.C. No. 171/10, rejecting bail application moved on behalf of co-accused Sonu alias Ashish. By that order only, direction was given to issue notice to Vijay Kesharwani to show cause as to why the bail granted to him, by Sessions Judge, Mandla as In-Charge Special Judge (under the Narcotic Drugs and Psychotropic Substances Act, 1985) (for the short 'the Act') vide order dated 27 .6.09 by extending advantage of the Proviso appended to sub-section (2) of section 167 of the Code of Criminal Procedure (hereinafter referred to as 'the Proviso), should not be cancelled. 2. In reply, the noticed has submitted that the bail does not deserve to be cancelled for the following reasons: (i) Benefit of the Proviso was rightly extended to him, (ii) There is no allegation as to misuse of the privilege. 3. Facts leading to issuance of the notice may be summarized as under: After being arrested in connection with Crime No. 34/09 registered at P.S. Karanjiya, District Dindori, in respect of the offence under section 8 read with section 20 of the Act, the notice was produced before the Magistrate having jurisdiction on 26.4.09. Taking note of the fact that charge-sheet was not presented before expiry of 60 days from the date of the order authorizing his detention in judicial custody, learned Judge, vide order dated 27.6.09, proceeded to release the notice on compulsive bail under the Proviso. While doing so, he also placed reliance on the following bail orders passed by the co-ordinate Benches of this Court in (i) Ramdevi v. State, MCr.C. No. 4721/2006 on 19.7.2006 ( 2007 (1) MPWN 102 ) (ii) Annu v. State, MCr.C. No. 11022/2007 on 8.1.2008 ( 2008 (II) MPWN 12 ) (iii) Suresh v. State, M.Cr.C. No. 11361/2007 on 22.1.2008. (iv) Ganesh Prasad v. State 2001 (II) MPWN 89. 4. Allegations against the noticee in substance, are that he was found conjointly involved in transporting Ganja in a Maruti Van bearing registration No. MP-20HA-38l6. As per the relevant account. in the night intervening 25th and 26th of April. 2009 at about 1 p.m., upon a credible information that as many as 3 persons were carrying Ganja in the Maruti Van, T.K. Soni, the SHO of PS Karanjiya, intercepted the vehicle at Bazar Tola Main Road. As per the relevant account. in the night intervening 25th and 26th of April. 2009 at about 1 p.m., upon a credible information that as many as 3 persons were carrying Ganja in the Maruti Van, T.K. Soni, the SHO of PS Karanjiya, intercepted the vehicle at Bazar Tola Main Road. However, co-accused Guddu, who was sitting in the front seat by the side of the driver, was able to nee away but the noticee who was driving the vehicle and co-accused Sonu alias Ashish, who was sitting on the rear seat of the vehicle, were apprehended. A total quantity of 32.770 Kgs. of Ganja in the form of 7 Sillis (compact blocks) were recovered from the Van. Out of these, 2 Sillis weighing 10.570 kgs. were found under the driver's seat whereas the other 5 were recovered from beneath the seat whereon co-accused Sonu was sitting. Accordingly, the Detecting Officer prepared two seizure panchnamas suggesting that quantity of 10.570 Kgs. of Ganja was found in the possession of noticee whereas possession of the remaining quantity of the contraband was attributable to the co-accused Sonu. 5. Observing that the order granting bail did not contain any discussion on the point as to whether the case related to persons accused of an offence involving commercial quantity within the meaning of sub-section (4) of section 36-A of the Act, this Court initiated this proceeding for cancellation of bail. The sub-section reads: "In respect of persons accused of an offence punishable under Section 19 or section 24 or section 27-A or for offences illvolvill8 commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days" where they occur shall be construed as reference to one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days" (Emphasis supplied). 6. Learned Senior Counsel, making reference to the decisions of the apex Court in Devilal v. State of Rajasthan, AIR 1971 SC 1444 and Lakshmi Singh v. State of Bihar. 6. Learned Senior Counsel, making reference to the decisions of the apex Court in Devilal v. State of Rajasthan, AIR 1971 SC 1444 and Lakshmi Singh v. State of Bihar. AIR 1976 SC 2263 , has strenuously contended that it is not open for the Court or to the prosecution to make a new case pertaining to commercial quantity as against the noticee so as to imperil the defence. According to him it is not possible to presume that as driver, the noticee was in conscious possession of the entire quantity of the contraband found in the vehicle. To buttress the contention, following precedents have been cited- (i) Avtar Singh v. State of Punjab, AIR 2002 SC 3343 . (ii) State of Punjab v. Balkar Singh, (2004) 3 SCC 582 . 7. However, scope of this proceeding lies in a narrow compass as the point for consideration is that whether, for the purpose of bail under the Proviso, it can be presumed that the noticee was in conscious possession of the entire quantity of the contraband recovered from the vehicle driven by him? In this view of matter, the apprehension that substratum of the prosecution case would undergo a change is apparently misconceived. 8. In Balkar Singh case (supra), the accused persons who belonged to different villages were found sitting on the bags of poppy husk while, as per the prosecution version in Avtar Singh's Case (supra) amongst the five inmates of the truck, the one sitting by the side of the driver and the other sitting on the back side of the Truck, were able to run away whereas the driver of the Truck and other two accused sitting on the bags kept in the back side of the Truck were apprehended. However facts of the instant case are apparently distinguishable as the. corresponding investigation has revealed that the noticee as well as co-accused Sonu had gone in the same vehicle from Jabalpur to a place near Guriella, Chhattisgarh picking up Guddu on the way from Phoolsagar. District Mandla and the black bag containing 2 Sillis and the gunny bag comprising 7 Sillis of Ganja were loaded there in the vehicle at the instance of Guddu for transportation to Jabalpur. Thus, all the three inmates of the vehicle were known to each other, and further it was not a Public Transport Vehicle. District Mandla and the black bag containing 2 Sillis and the gunny bag comprising 7 Sillis of Ganja were loaded there in the vehicle at the instance of Guddu for transportation to Jabalpur. Thus, all the three inmates of the vehicle were known to each other, and further it was not a Public Transport Vehicle. This apart, the quantity of the contraband as mentioned in the respective seizure memo was also in the same form. Under these circumstances, presumption of conscious possession under section 54 of the Act was available against each one of the accused. For this reference may be made to a recent decision of the Supreme Court in Dehal Singh v. State of H.P 2010 AIR SCW 5533. As such, benefit of section 167 (2) could be extended to the noticee only in the event of non-tiling of the charge-sheet within a period of 180 days simply because it was a case relating to commercial quantity of the contraband. Learned Judge, therefore completely misdirected himself in extending the benefit of the proviso to the noticee on the ground that the investigation was not completed within a period of 60 days. 9. Needless to say that a bail order cannot be cited as a precedent as it does not contain any discussion as to the point in issue. Moreover, the assel1ion that the noticee has not misused the liberty granted to him is also of no consequence as the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the noticee has mis-conducted him self or because of some new facts requiring such cancellation. Accordingly, one of the grounds for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a serious crime of this nature involving commercial quantity of contraband. Such an order would be against principles of law. Interests of justice would also require that such a perverse order be set aside and bail be cancelled. [Puran v. Rambilas, (2001) 6 SCC 338 referred to.] 10. On a conspectus of the factual scenario and the relevant provision of law, the order granting compulsive bail deserves to be set aside. 11. Consequently the order dated 27.6.09 (supra), is hereby cancelled. 12. [Puran v. Rambilas, (2001) 6 SCC 338 referred to.] 10. On a conspectus of the factual scenario and the relevant provision of law, the order granting compulsive bail deserves to be set aside. 11. Consequently the order dated 27.6.09 (supra), is hereby cancelled. 12. Noticee Vijay Kesharwani is directed to surrender before the Special Court at Dindori on or before 8.1 1.10 and in case of failure, the Special Judge shall issue warrant of arrest against him. It is, however, made clear that nothing contained in this order shall affect the right of the noticee to move the Special Court for grant of bail after his surrender in the light of subsequent events.