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Madhya Pradesh High Court · body

2020 DIGILAW 601 (MP)

Ramesh Meena v. State Of M. P.

2020-05-20

SHEEL NAGU

body2020
JUDGMENT 1. Learned counsel for the rival parties are heard. 2. The petitioner has filed this third repeat application u/S.439 Cr.P.C. for grant of bail after rejection of earlier ones on merits and by granting liberty to come again after examination of main PWs vide order dated 30.01.2020 in Mcrc.4225.2020. 3. The petitioner has been arrested on 25.07.2019 by Police Station Ochhapura Nayagaon, District Sheopur (M.P.) in connection with Crime No.26/2019 registered in relation to the offence punishable u/S 8/15 of the NDPS Act. 4. Learned counsel for State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out. 5. New ground raised is that seizure witness Dinesh Valmiki (PW-1) has turned hostile. It is further submitted that (PW-2) Banwarilal Rawat has also been examined. Petitioner is said to be in custody since 25.07.2019 with the allegation of having been found in unlawful possession of 4+ kg of poppy straw. 6. State counsel however objects by submitting that other witness Satyanarayan has not yet been examined. The last bail application was rejected with liberty to come again after examination of main witnesses who are yet to be examined and therefore it is submitted that no new ground arises for allowing this repeat bail application. 7. Considering the fact that provision of Section 50 of NDPS Act has not been complied with in stricto sensu as explained by the Apex Court in Arif Khan alias Agha Khan Vs. State of Uttarakhand [(2018) 18 SCC 380] relevant extract of which is reproduced below for ready reference and convenience : '22. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer. 23. State of Uttarakhand [(2018) 18 SCC 380] relevant extract of which is reproduced below for ready reference and convenience : '22. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer. 23. It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act . 24. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband 'Charas' does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons. 24. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband 'Charas' does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons. 24.1 First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; 24.2 Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband 'Charas' was not made from the appellant in the presence of any Magistrate or Gazetted Officer; 24.3 Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband 'Charas' from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband 'Charas' as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; 24.4 Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 25. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer. 26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. 26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal." as the search and seizure was not made in presence of gazetted officer and looking to the period of custody and that early conclusion of the trial is a bleak possibility and prolonged pre-trial detention being an anathema to the concept of liberty and the material placed on record does not discloses possibility of petitioner fleeing from justice, this Court is inclined to extend the benefit of bail to the petitioner. 8. Accordingly, without expressing any opinion on merits of the case, this application is allowed and it is directed that the petitioner be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand only) with one local surety of the like amount to the satisfaction of the concerned Magistrate. 9. This order will remain operative subject to compliance of the following conditions by the petitioner :- 1. The petitioner will comply with all the terms and conditions of the bond executed by him; 2. The petitioner will cooperate in the trial ; 3. The petitioner will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4. The petitioner shall not commit an offence similar to the offence of which he is accused; 5. The petitioner will not seek unnecessary adjournments during the trials; 6. The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be; 7 . The learned concerned Magistrate and the prosecution are directed to ensure following of Covid-19 precautionary protocol prescribed from time to time by the Supreme Court, the Central Govt. The petitioner will not seek unnecessary adjournments during the trials; 6. The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be; 7 . The learned concerned Magistrate and the prosecution are directed to ensure following of Covid-19 precautionary protocol prescribed from time to time by the Supreme Court, the Central Govt. and as well as the State Govt during release, travel and residence of the petitioner during period of bail as a consequence of this order. 10. A copy of this order be sent to the Court concerned for compliance. C.c as per rules.