Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 488 (MP)

Suresh v. State of M. P.

2014-04-30

S.R.WAGHMARE

body2014
ORDER 1. By this application filed under section 439 of the CrPC, applicant Suresh has moved the application for grant of bail being implicated in Crime No.518/11 registered by police station Neemuch Cantt. District Neemuch for offence under sections 8/18 r/w 29 of NDPS Act. 2. Counsel for the applicant has vehemently urged the fact that the applicant has been falsely implicated in the matter. He submitted that there is not an iota of evidence on record except a memo under section 27 of the Evidence Act of co-accused Balkishan and Omprakash. It was stated by the co-accused that the contraband weighing 10 kg of opium found in the Bolero Jeep was supplied to them by the present applicant Suresh and except this piece of evidence, there is nothing on record against the applicant. Moreover Counsel submitted that the investigation is complete and the applicant is not required for any other investigation. He candidly admitted that this is third application moved on behalf of the applicant and that there is one other case for offence under sections 376, 366 and 366/34 of the IPC registered against the applicant. He had been convicted and sentenced to three years RI; however, the criminal appeal is pending before this Court. More importantly counsel urged the fact that the conviction cannot be based on the statement of co-accused under section 27 of the Evidence Act. It is only a corroborative peace of evidence and relying on several cases, counsel submitted that the facts disclosed under section 27 of the Evidence Act can be used only against the person making disclosure and not against any other person. Similarly he submitted that section 67 of the NDPS Act was also different from section 27 of the Evidence Act and only an authorised officer under the provisions of section 42 of the NDPS Act during the course of any enquiry in connection with the contravention of the provisions of the NDPS Act with intention to collect the information and if any person voluntary intending to give confessional statement may record the same and if ultimately it is found that the confessional statement was recorded voluntarily by the person concerned, then that statement is admissible in evidence and can be used for the person making the same. However, counsel urged that even such a statement under section 67 of the NDPS Act, is not admissible and in the present case co-accused persons have implicated the applicant; then there can be no conviction of that person only on the basis of their statement. He relied on (2007)6 SCC 410 (418), (2008)4 SCC 668 and (2009)16 SCC 496 . He also relied on Sharif v. State [1997(II) MPWN 173], Gotulal v. State [Criminal Revision No.650/02], Sadique v. State [Criminal Revision No.383/03], and Kanhaiyalal v. State [Criminal Revision No.652/2000] to bolster his submissions. Besides he produced a list of cases in which the applicant accused solely on the basis of memo prepared under section 27 of the Evidence Act was granted bail by the Court in several cases i.e. Miscellaneous Criminal Case No.6722/12 (Prahlad v. State of M.P.), Miscellaneous Criminal Case No.156/13 (Kailash v. State of M.P.), Miscellaneous Criminal Case No.1571/13 (Shivlal v. State of M.P.) Miscellaneous Criminal Case No.154/13 (Bhagwatilal v. State of M.P.), Miscellaneous Criminal Case No.6556/13 (Dilip Singh v. State of M.P.), Miscellaneous Criminal Case No.711/13 (Vinod Singh v. State of M.P.) and Miscellaneous Criminal Case No.4850/13 (Bhopalsingh v. State of M.P.). Counsel prayed for grant of bail since the applicant has been arrested on 22.7.2012. 3. Counsel for the respondent State per contra has opposed the contentions put forth by the counsel for the applicant and categorically stated that the accused has already been convicted for another offence and does not deserve any sympathy. Besides more than the commercial quantity of the contraband as prescribed under the provisions of the NDPS Act i.e. contraband opium weighing 10 kg. was seized from the possession of co-accused Balkishan and Omprakash and although their memos have been prepared under section 27 of the Evidence Act, the case of the petitioner being supplier is hit by section 37 of the NDPS Act which bars grant of bail to the accused since more than commercial quantity of contraband opium has been recovered. Besides section 67 of the NDPS Act empower the officers when read with section 42 of the NDPS Act and such statements are admissible in evidence. Counsel prayed for dismissal of the application primarily on the grounds that looking to the gravity of the offence and the bar under section 37 of the NDPS Act. He urged that the application is without merit. 4. Counsel prayed for dismissal of the application primarily on the grounds that looking to the gravity of the offence and the bar under section 37 of the NDPS Act. He urged that the application is without merit. 4. On considering the above submissions, and looking to the materials available in the case diary, I find that bail cannot be allowed to the present applicant. However, dealing with the controversy raised regarding the admissibility of the statements under section 27 of the Evidence Act recorded first; I find that unless it is established that the statements were obtained by the officers by subjecting the accused to coercion or procured under duress the statements are admissible in evidence under section 67 read with section 42 of the NDPS Act. 5. Moreover considering the fact that the applicant is a supplier and admittedly was not found in the conscious possession of the contraband. However his implication under the circumstances would have to be based on the evidence recorded by statements of the co-accused who were found in possession of the contraband and such statements would have to be relied on by the trial Court and there is no deviation from the fact as directed by the apex Court in the matter of Kanhaiyalal v. Union of India reported in 2008(3) JLJ 280 (SC)=2008(4) MPHT 311 (SC), whereby the apex Court has considered the gravity of sections 42 and 67 of the NDPS Act and held that confessions recorded by an officer under section 67 of the NDPS Act are not hit by the bar under sections 24 to 27 of the Evidence Act and the Court held thus : “Therefore, a confessional statement recorded by such officer in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act.” And the Court further held thus : “that an officer vested with the powers of an Officer-in-Charge of a Police Station under section 53 of the above Act is not a “Police Officer” within the meaning of section 25 of the Evidence Act, it is clear that a statement made under section 67 of the NDPS Act is not the same as a statement made under section 161of the Code, unless made under threat or coercion.” 6. In the instant case I find that the statements have been recorded by the Investigating Officer Shri Avinash Shrivastava SI and there are two testifying witnesses Don @ Shafiq Khan and Dhansingh and so under the circumstances the bar would not be applicable and what is to be seen prima facie at the time of granting bail is whether there is a prima facie case against the accused? Rest of the arguments put forth by the counsel for the applicant would be considered at the time of final hearing and conviction if any. And considering the section 27 of the Evidence Act, the plea requisite for admissibility of the memo under section 27 is that the information or disclosure received by the police officer should be free from any ailment of compulsion and there is no bar as such against respondent. Such information in evidence cannot be discarded merely because it amounts to a confession. It has also been clarified by the apex Court that the confessional part is admissible so far as it pertains to such information or part of it which relates distinctly to the fact discovered by means of information furnished. Hence the incriminating factor is that some fact should be discovered which was not within the knowledge of the police officer at the time of the investigation. Under the circumstances, the source of supply of contraband is against the applicant and shall be considered by the trial Court at the time of his conviction and final hearing. Hence the incriminating factor is that some fact should be discovered which was not within the knowledge of the police officer at the time of the investigation. Under the circumstances, the source of supply of contraband is against the applicant and shall be considered by the trial Court at the time of his conviction and final hearing. At present it would be profitable to consider the matter of State of M.P. v. Kajad, reported in 2001 SCC (Cri.) 1520 that “Section 37 of the NDPS Act enjoins that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of section 37(1). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the NDPS Act is uncalled for”. 7. Besides it is a recorded fact that there is already a conviction against the present applicant in another case. In view of the above, the application for grant of bail is rejected as being without merit.