Shekhar Shukla vs State Of Madhya Pradesh

Akhil Kumar Srivastava, J

This is the first application filed by the applicant/accused under Section 439 of Cr.P.C for grant of bail.

The Applicant is in custody since 10.08.2018 in connection with Crime No.590/2018 registered at Police Station - Kotwali Shahdol, District - Shahdol

(M.P.) for the offence under Sections 8/20-b(II)(c) of NDPS Act & Section 25(1)(B) & 27 of Arms Act.

As per the prosecution story, police while checking vehicle at night found a car bearing Registration No.MP 65 C2262 and seized 21 kg Ganja a n d o

n e katta from that car, which was in possession of the present applicant. It is alleged by the prosecution that the applicant along with co-accused

person was transporting illegal Ganja in the said vehicle.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated. He has not committed any offence, the

applicant has no criminal past. It is further stated that some of witnesses have been examined and some of which have not supported the prosecution

case and have turned hostile. The applicant is in custody since 10.08.2018 i.e. more than two years. Due to present scenario of Covid-19 pandemic,

the conclusion of the trial will take time. The applicant is permanent resident of District and there is no likelihood of absconding or tampering with the

prosecution evidence by the applicant. On these grounds, prayer is made to enlarge the applicant on bail.

Per contra, learned counsel for the State opposes the bail application and prays for its rejection on the ground that the contraband seized is not under

the intermediate quantity.

Heard rival contentions of the parties and perused the entire material available on record including the case diary. It is well settled that where seizure

witnesses turn hostile, evidence of the departmental witnesses can be relied upon to prove the fact of seizure unless there is intrinsically anything

which appears to make their evidence non-trustworthy. Further, in the case of Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh (2011) 5

SCC 123, it has been held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal

trials, particularly in cases relating to NDPS Act.

In the present case, the applicant was carrying the contraband, which he along with other accused were carrying in the vehicle. Carrying the

contraband in the vehicle/bag cannot be said to be 'by the person' necessitating compliance of Section 50 of the NDPS Act for personal search.

Reference in this regard can be made to the decision in State of H.P. vs Pawan Kumar (2005) 4 SCC 350. It is well settled that any matter arising out

of NDPS Act, grant of bail is controlled by S.37 and it is mandatory for the Court to hear the counsel for the State and the Court is obliged to see if

there are reasonable ground for believing that the accused is not guilty and record its satisfaction about the existence of such grounds. The satisfaction

contemplates regarding the accused being not guilty is to be based for reasonable grounds. The expression ""reasonable grounds"" means something

more than prima facie grounds. It contemplates substantial probable cause for believing that the accused is not guilty of the alleged offence.

Keeping in view the totality of the facts and circumstances of the case, its impact on the society and looking to the quantity of contraband so seized,

this Court is of the considered view that it is not a fit case in which applicant may be released on bail.

Hence, the bail application is hereby dismissed.