Rakesh Tandan vs State Of Chhattisgarh

This first application under Section 439 of the Code of Criminal Procedure has been filed by the applicant who is in custody in connection with Crime No. 176/2022 registered at Police Station Simga, District Balodabazar - Bhatapara, CG for the offence punishable under Section 20-B of NDPS Act.

Case of the prosecution in short is that acting upon a secret that Ganja was being transported in a Creta Car bearing registration No. CG-04-LJ-1947 information, the police reached the spot and found 167.200 grams of contraband (Ganja) in possession of the co-accused i.e. driver of the vehicle namely Yogeshwar Mishra.

Counsel for the applicant submits that the applicant is innocent and has been implicated in a false case; that no recovery of contraband has been effected from the conscious possession of the applicant, rather it was made from co-accused Yogeshwar Mishra. He further submits that other accused namely Narayan Sahu has been granted bail by this Court vide order dated 22.9.2022 passed in MCRC No. 5995/2022. He further submits that the seizure witnesses who happen to be the witness of entire investigation witnesses have not supported the case of the prosecution. He further submits that possibility of conviction of the present applicant is very remote and that the name of the present applicant is reflected in the memorandum of the co-accused which is not permissible in law in view of the decision of the Apex Court in the matter of Tofan Singh v. State of Tamil Nadu, reported in (2013) 16 SCC 31. He further submits that in the matter of Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh reported in 2022 SCC Online SC 1117 it has been categorically held that if the indpendent seizure witneses have not supported the case of the prosecution, foundation of the entire investigation collapses and therefore, at this stage provisions of Section 37 of the NDPS Act would not stand as a bar.

State counsel, on the other hand, opposes the application for bail and submits that the quantity of the contraband seized is commercial quantity and that in the memorandum of the co-accused it has come that the present applicant fled away from the spot; that the accused who is granted bail is the owner of the vehicle and therefore, in view of the different set of facts, his application was allowed.

Considering the rival submissions made on behalf of the parties, the facts and circumstances of the case, the statements of the seizure witnesses who appear tobe the witnesses to the entire investigation, that the applicant is in jail since 20.06.2022, that the trial may take some time for conclusion, and keeping in mind the decisions of the Apex Court referred to above, it appears that in the facts and circumstances of the case the applicant can be said to have prima facie overcome the provisions of Section 37 of the NDPS Act, therefore, this Court is of the opinion that it is a fit case to release himon bail. Accordingly, the application is allowed and the applicant is directed to be released on bail on his furnishing a bond in the sum of Rs. 50,000/- with one surety for the like sum to the satisfaction of the concerned Court for his appearance before that Court as and when so directed.

None of the observations made in the order granting bail to come in the way of the trial Court in deciding the case and it should proceed with the case on its own merits and demerits.

The applicant shall not repeat the offence and shall not leave the State of Chhattisgarh within prior permission of the trial Court.