Royden Buthello vs State Of Chhattisgarh

This Second 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. 232/2020 registered at Police Station  Azad Chowk, Raipur, District Raipur, for the offence punishable under Sections 22 (b), 29 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the “NDPS” Act). The first application being MCRC No. 9035/2020 was dismissed on merits vide order dated 29.01.2021.

The factual scenario portrayed by the prosecution in this case is that on receiving a secret information to the effect that one person was engaged in sale of Narcotic Drugs and Psychotropic substance near Ashram Tiraha, the police of Police Station Azad Chowk, Raipur, reduced the same to writing in Rojnamcha Sanha, witnesses were summoned and when the police party reached the spot, he started running away but ultimately was nabbed. Further case put forth by the prosecution is that after being taken into custody, that person disclosed his name to be Royden Buthello (present applicant) and on search 9 grams and 990 miligrams of Cocaine (on being weighed with polythene wrapped in) and 9 grams and 240 miligrams (on being weighed without polythene) was found in his possession.

Counsel for the applicant submit that the applicant is innocent and after drawing a false seizure memo, he has been dragged into the present case. They submit that contraband allegedly found in possession of the applicant was less than commercial quantity but more than small quantity and that the seizure witnesses namely Ganesh Jaiswal (PW-1) and Arjun Sendre (PW-3) examined by the prosecution have not supported the case of the prosecution and have been declared hostile. Likewise, according to the counsel for the applicant, the witness to weighment of the contraband namely Tarun Dhote (PW-2) has also not supported the case of the prosecution and has been declared hostile. Counsel for the applicant further submit that another witness relating to the investigation related proceedings namely Harkiran Kaur (PW-8) has also not supported the case of the prosecution and has been declared hostile. She, according to the counsel for the applicant, has categorically stated that she did not know the applicant and whatever she did during investigation including putting her signature on certain documents, was on the pressure of the police. According to the counsel for the applicant, there is one serious lacuna on the part of prosecution in effecting seizure and arrest of the applicant. According to them, in the case in hand the seizure of the contraband has been effected prior to the arrest of the accused. This is evident from the seizure memo which shows the seizure being effected on 21.10.2020 at 12.55 am whereas the applicant was arrested on the same day at 6.30 pm. According to the counsel for the applicant, there are material contradictions and omissions in the Court statements of other witnesses being PW-4, PW-5, PW-6, PW-7, PW-9 and PW-10 – all police officials, as to the procedural formalities being undertaken during the course of investigation. Counsel for the applicant further submit that other accused persons namely Nikita Panchal, Harshwardhan Sharma, Lakhaprit Kaur have already been granted bail by the co-ordinate Bench of this Court vide order dated 14.6.2021 passed in MCRC No. 9508/2020, and order dated 19.08.2021 passed in MCRC Nos. 3436/2021 and 4512/2021. They further submit that as the applicant is behind the bars since 21.10.2020 and that the conclusion of trial may take some more time therefore, the present applicant may also be extended the same benefit.

On the other hand, counsel appearing for the State opposes the application for bail and submits that as the first application preferred by the applicant has already been dismissed on merits, this application too needs to meet the same fate as no change in circumstances has been demonstrated by the counsel for the applicant. Countering this submission of the State counsel, it has been submitted by the counsel for the applicant that subsequent to rejection of the first application, substantial developments have taken place such as, material witnesses have been examined by the prosecution and most of them have not supported the case of the prosecution and have been declared hostile.

Heard counsel for the parties at considerable length and went through the documents annexed with the bail petition minutely. Taking into consideration the facts and circumstances of the case; the fact that the seizure and weighment witnesses have not supported the case of the prosecution and have turned hostile; that other accused persons named above have already been granted bail by the co-ordinate Bench of this court; that the applicant has been in jail since 21.10.2020 and that the trial may take some more time for conclusion, this Court is of the opinion that it is a fit case to release the applicant on bail. Accordingly, the application is allowed and it is directed that on his furnishing a bond in the sum of Rs. 50,000/- (fifty thousand) with one surety for the like sum to the satisfaction of the concerned Court. The applicant shall abide by the following conditions:

(i) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts and circumstances of this case so as to dissuade him/her from disclosing such fact to the Court;

(ii) he shall not act in any manner prejudicial to fair and expeditious trial;

(iii) he shall appear before the trial Court on each and every date given to him by the said court, till disposal of the trial;

(iv) he and the surety shall submit a copy of their Adhar Card along with a colour postcard size photograph bearing Adhar Number on it, which shall be verified by the trial Court;

(v) he shall not involve himself in any offence or similar nature in future; and

(vi) he shall not leave the territorial jurisdiction of the State of Chhattisgatrh without obtaining prior permission of trial Court.

The observations made hereinabove are only for deciding this application and will not have any bearing on the merits of the case.