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2014 Supreme(MP) 253
MADHYA PRADESH HIGH COURT
Smt. S.R. Waghmare, J.
Suresh v. State of M.P.
Miscellaneous Criminal Case No.26 of 2014 (Indore);
Decided on 30.4.2014.
Sunil Jain for applicant;
Suraj Sharma for respondent/State.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 -- S.8/18 r/w Ss.29 and 37, 42 and 67 -- accused of supplying contraband opium more than commercial quantity -- cannot be released on bail generally.
Held : At present it would be profitable to consider the matter of State of M.P. v. Kajad, reported in 2001 SCC (Cri.) 1520 that “Section 37 of the NDPS Act enjoins that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of section 37(1). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail.” 2001 SCC (Cri.) 1520 followed.
Lokid vks”kf/k vksj eu%izHkkoh inkFkZ vf/kfu;e] 1985 & /kkjk 8@18 lgifBr /kkjk 29] 37] 42 rFkk 67 & fofuf”k) vQhe dh okf.kfT;d ifj.kke ls vf/kd vkiwfrZ djus dk vfHk;qDr & lkekU;r;k tekur ij ugha NksM+k tk ldrkA
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1. By this application filed under section 439 of the CrPC, applicant Suresh has moved the application for grant of bail being implicated in Crime No.518/11 registered by police station Neemuch Cantt. District Neemuch for offence under sections 8/18 r/w 29 of NDPS Act.
2. Counsel for the applicant has vehemently urged the fact that the applicant has been falsely implicated in the matter. He submitted that there is not an iota of evidence on record except a memo under section 27 of the Evidence Act of co-accused Balkishan and Omprakash. It was stated by the co-accused that the contraband weighing 10 kg of opium found in the Bolero Jeep was supplied to them by the present applicant Suresh and except this piece of evidence, there is nothing on record against the applicant. Moreover Counsel submitted that the investigation is complete and the applicant is not required for any other investigation. He candidly admitted that this is third application moved on behalf of the applicant and that there is one other case for offence under sections 376, 366 and 366/34 of the IPC registered against the applicant. He had been convicted and sentenced to three years RI; however, the criminal appeal is pending before this Court. More importantly counsel urged the fact that the conviction cannot be based on the statement of co-accused under section 27 of the Evidence Act. It is only a corroborative peace of evidence and relying on several cases, counsel submitted that the facts disclosed under section 27 of the Evidence Act can be used only against the person making disclosure and not against any other person. Similarly he submitted that section 67 of the NDPS Act was also different from section 27 of the Evidence Act and only an authorised officer under the provisions of section 42 of the NDPS Act during the course of any enquiry in connection with the contravention of the provisions of the NDPS Act with intention to collect the information and if any person voluntary intending to give confessional statement may record the same and if ultimately it is found that the confessional statement was recorded voluntarily by the person concerned, then that statement is admissible in evidence and can be used for the person making the same. However, counsel urged that even such a statement under section 67 of the NDPS Act, is not admissible and in the present case co-accused persons have implicated the applicant; then there can be no conviction of that person only on the basis of their statement. He relied on (2007)6 SCC 410 (418), (2008)4 SCC 668 and (2009)16 SCC 496. He also relied on Sharif v. State [1997(II) MPWN 173], Gotulal v. State [Criminal Revision No.650/02], Sadique v. State [Criminal Revision No.383/03], and Kanhaiyalal v. State [Criminal Revision No.652/2000] to bolster his submissions. Besides he produced a list of cases in which the applicant accused solely on the basis of memo prepared under section 27 of the Evidence Act was granted bail by the Court in several cases i.e. Miscellaneous Criminal Case No.6722/12 (Prahlad v. State of M.P.), Miscellaneous Criminal Case No.156/13 (Kailash v. State of M.P.), Miscellaneous Criminal Case No.1571/13 (Shivlal v. State of M.P.) Miscellaneous Criminal Case No.154/13 (Bhagwatilal v. State of M.P.), Miscellaneous Criminal Case No.6556/13 (Dilip Singh v. State of M.P.), Miscellaneous Criminal Case No.711/13 (Vinod Singh v. State of M.P.) and Miscellaneous Criminal Case No.4850/13 (Bhopalsingh v. State of M.P.). Counsel prayed for grant of bail since the applicant has been arrested on 22.7.2012.
3. Counsel for the respondent State per contra has opposed the contentions put forth by the counsel for the applicant and categorically stated that the accused has already been convicted for another offence and does not deserve any sympathy. Besides more than the commercial quantity of the contraband as prescribed under the provisions of the NDPS Act i.e. contraband opium weighing 10 kg. was seized from the po
