Sourabh Kocheta And Others vs Central Narcotics Bureau

Anil Verm, J

These are the first applications filed by the applicants under Section 439 of Cr.P.C. for grant of regular bail relating to Crime No.1/2021 registered at Police Station – Central Narcotics Bureau, Mandsaur (M.P.) for the offence under Section 8, 8A, 8/15, 8/15(c), 8/18, 15C, 18B, 21C, 25, 27A, 27B, 29 of the NDPS Act.

As per the prosecution story, on 26.8.2021, the respondent/CBN officials got discreet information from the informer that co-accused Jay Kumar is doing some illegal act in his factory/godown. Acting upon said information, CBN officials while searching the factory/godown which was under the ownership of co-accused Jay Kumar, seized 98 bags of wheat mixed poppy straw total 7841.760 kg, 3 bags containing poppy straw powder weighting 100.190 kg, two bags containing poppy straw husk weighting 21.540 kg, 300 bags containing Afeem Kala Dana (Black Opium) weighting 17557.460 kg and one bag containing 56 kg poppy straw. Four persons were found in the factory namely present applicant/Jai Kumar, Vishambhar, Rajendra and Anurag Agrawal. It is also alleged that one cheque book of HDFC bank account No. 50200052872479 in cheque No. 000138 to 000175 issued in the name of Padamnath Enterprises. During the investigation it is revealed that present applicants Sourabh Kocheta, Prakash and Pankaj Kumawat were also involved in the organized crime of drug trafficking. They were working as syndicate and engaged in drug trafficking for monetary gains for many years. Accordingly, a case has been registered against the present applicants and other co-accused persons.

Learned counsels for applicants Sourabh Kocheta, Prakash and Pankaj Kumawat contended that all the applicants are innocent and they have been falsely implicated in this matter. Applicants Sourabh Kocheta and Prakash are in custody since 7.1.2023 and applicant Pankaj Kumawat is in custody since 6.7.2022. They were not present on the spot at the time of incident and no recovery was made from their possession. Applicants Sourabh Kocheta and Prakash are businessmen and having series of transactions during the course of business with so many business persons. A mere bank account entry is not a specific and conclusive proof to establish that they are involved in the drug trafficking. Investigation is over and charge sheet has been filed and basically heinous charges have been framed against the main accused Jai Kumar. Therefore, further custody of the present applicants is not required in furthermore investigation. Applicants are permanent residents of District Neemuch and there is no apprehension of their fleeing away from the court of justice. Final conclusion of trial will take considerable long time. Hence, it is prayed that the applicants be enlarged on bail.

Counsel for the applicants have also placed reliance upon the judgment of the Hon’ble Apex Court in the case of State (by NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta and Another reported in (2022) 12 SCC 633, judgment of Delhi High Court in the case of Amit Ranjan Vs. Narcotics Control Bureau, Delhi reported in 2022 SCC OnLine Del 1532, order of High Court of Gujarat at Ahmedabad in the case of Yash Jayeshbhai Champaklal Shah Vs. State of Gujarat vide order dated 2.3.2022 passed in R/Criminal Mis.c Application No.1234 of 2022 and the order of this Court dated 24.11.2020 passed by the Principal Seat at Jabalpur in MCRC No.14440/2020.

Per contra, learned counsel for the respondent/CBN opposed the bail applications and prayed for its rejection by submitting that the seized quantity of contraband is more than 25.57 tons, which is more than the commercial quantity, therefore, the punishment is of rigorous imprisonment up to 20 years with fine which can be extended to Rs.2 Lakhs. The Hon’ble Apex Court in the Case of Union of India Vs. Ram Samujh and another reported in 1999 SCC (Cri) 1522 observed that the offence under the NDPS Act are the offence against the society and accused persons should not be released unless requirement of Section 37 of the NDPS Act are satisfied. All the present applicants have also indulged in financing/managing the properties derived from the sale proceeds of business of illegal drug trafficking. Applicants are close associates of the main accused Jai Kumar. Three criminal antecedents have been found against the applicant Sourabh Kocheta and two criminal antecedents have been found against the applicant Prakash. During the investigation, applicant Sourabh Kocheta was remained absent. Statements of the applicants have been recorded under Section 67 of the NDPS Act as per the rules. Further investigation in the case is still going on. Applicant Pankaj Kumawat was serving as a Constable in the M.P. Police and entrusted with a duty to control illegal activities, therefore, he has been suspended from the Police Department. As per the law laid down by the Hon’ble Apex Court in the case of State of Kerala Vs. V. Padmanabhan reported in 1999(5) SCC 690, no sanction is required under Section 197 of Cr.P.C. in the said drug trafficking case. The question whether the procedure prescribed under Section 50 of the NDPS Act has been followed or not, is a matter of trial and the statement recorded under Section 67 of the NDPS Act can be considered at the time of considering bail application. Hence, he prays that the applicants do not deserve for bail.

Counsel for the respondent/CBN has placed reliance upon the judgment dated 28.3.2023 passed by the Hon’ble Apex Court in the case of Union of India Vs. Ajay Kumar Singh @ Pappu in the criminal appeal arising out of SLP (Crl.) No.2351 of 2023 and the order dated 22.6.2022 passed by this Court in the case of Jaykumar Vs. CNB, Mandsaur in MCRC No.14664/2022.

Counsel for both the parties heard at length and perused the entire record and the citations produced by them.

Considered all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation and the fact that this Court has decided the bail application of the co-accused Jaykumar vide order dated 22.6.2022 passed in M.Cr.C. No.14664/2022. Co-accused Jaykumar has filed Special Leave to Appeal (Crl.) No.10425/2022 before the Apex Court, which has been dismissed by the Hon’ble Apex Court vide order dated 21.7.2023 by observing as under:-

“Having regard to the offences alleged against the petitioner herein and the fact that the trial is stated to commence on 8.8.2023, we find that at this stage, it would not be just and proper to consider the case of the petitioner for grant of bail.”

It is also noteworthy that bail application of the co-accused Kailashchand has been dismissed by this Court vide order dated 22.6.2022 passed in MCRC No.17279/2022 in the similar circumstances.

Although learned counsel for the applicant Pankaj Kumawat submits that the competent authority SAFEMA NDPSA has passed the order dated 2.8.2023 and accordingly it has been held that freezing order dated 3.8.2022 issued by the Investigating Officer-CBN, Mandsuar cannot be confirmed, but the Appellate Tribunal under SAFEMA at New Delhi vide order dated 2.3.2023 has issued interim order against the aforesaid order passed by the SAFEMA NDPSA.

Applicants in their statements under Section 67 of the NDPS Act also corroborated the case of the prosecution and as per the settled position of law, statement recorded under Section 67 of the NDPS Act can be considered at the time of deciding bail application. During the investigation details of the bank account of the present applicants has also been collected.

On the basis of the aforesaid documentary evidence, it cannot be said that no prima facie case is made out against the present applicants. In the instant case the quantity of the psychotropic substance seized from the co-accused persons is more than the commercial quantity as prescribed under the NDPS Act, therefore, there is a specific bar under Section 37 of the NDPS Act. Criminal antecedents have been found against the applicants Sourabh Kocheta and Prakash.

In view of the aforesaid, without commenting upon merits of the case, this Court is not inclined to grant regular bail to the present applicants. Hence, all these MCRCs are dismissed.

Signed order be kept in the file of MCRC No.21123/2023 and a copy thereof be placed in the connected MCRC Nos.21129/2023 and 26572/2023.

C.C. as per rules.