IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL ON THE 9^th OF MAY, 2022 MISC. CRIMINAL CASE No. 22651 of 2022 Between:-

MUSTKEEM S/O SAEED KHAN , AGED ABOUT 28 YEARS, OCCUPATION: LABOUR R/O DEVLI P.S. MANDAI, DISTRICT- SIHORE, (MADHYA PRADESH)

.....PETITIONER (BY SHRI ANOOP KUMAR SHUKLA, ADVOCATE)

AND THE STATE OF MADHYA PRADESH THROUGH P.S. KOTWALI DISTRICT- BETUL, M.P. (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI VIJAY KUMAR SHUKLA, PANEL LAWYER)

This second bail application has come up for hearing on admission on this day, the court passed the following:

ORDER

This is the second bail application filed on behalf of applicant-Mustkeem, S/o Saeed Khan under Section 439 of CrPC in connection with Crime No.82/2019 under Sections 8/20 of NDPS Act registered at police station Kotwali, District Betul (M.P) and applicant is in custody since

21.11.2021.

It is submitted that as per the prosecution story, a Scorpio vehicle bearing registration No.MP-04-CP-6560 was tried to be intercepted. Two occupants of the vehicle tried to escape. On account of incident, several packets of Ganja had spread out which was collected and its weight was found to be 246 k.g. and 800 gm. It has also come on record that a mobile phone Signature Not SAN Verified bearing IEMI No.351703107122727 was recovered from the Scorpio. Scorpio was found to be Digitally signed by of Sadrouddin Khan brother of Mustakim. IEMI number was matched with SIM and it was found TULSA SINGH Date: 2022.05.11 that IEMI was used for SIM number 9406910874 which belongs to Salman Mansoori. Thereafter, Salman Mansoori was arrested, his memorandum was taken. In the memorandum, Salman Mansoori admitted that in the Scorpio Car he was present with Bhola alias Mustak Khan. He further deposed that prior to 02.02.2019 they had traveled to Orrisa, Malkhangiri along with accused Bhola @ Mushtak from where Bhola had procured said Ganja. On the fateful day they were transporting said Ganja.

It is submitted that applicant has been made an accused on the basis of memorandum of co-

accused, no recovery of Ganja is made from the present applicant. He is innocent and the memorandum given by co-accused has limited evidenciary value. It is further submitted that co- accused-Bhola alias Mustak Khan has already been enlarged on bail by this Court vide order dated 26th April, 2022 passed in M.Cr.C. No.20720/2022. Hence, prayer is made to enlarge the applicant on bail.

Shri Vijay Kumar Shukla, learned Panel Lawyer for the State, in his turn, vehemently opposes the prayer for grant of bail and submits that main accused is Sadroouddin Khan, owner of vehicle bearing registration No.M.P.04 CP 6560 inasmuch as contraband was seized from this vehicle besides Salman whose mobile number was recovered from the spot.

Learned counsel for the applicant submits that Sadroouddin Khan has not been made an accused and Police is trying to save him at the cost of present applicant.

There is no other material to directly connect the present applicant except the memorandum of co-accused. There is no recovery of Ganja from the possession or house of the applicant even after his arrest. It is also true that memorandum given by the co-accused has limited evidenciary value. There is no material to connect presence of the applicant in the Scorpio or all around 02.02.2019 and therefore in view of the fact that memorandum given by the co-accused has limited evidenciary value and none of the co-accused has shown presence of the applicant at the time of interception of Scorpio from which Ganja was recovered, it cannot be said that either the vehicle or the mobile phone was in constructive and conscious possession of the present applicant, therefore, in may opinion since the memorandum has a limited evidenciary value in the light of law laid down by the Supreme Court in case of Toofan Singh Vs. State of Tamil Naidu, AIR 2020 SC

5592, wherein it is held that:-

"ÂœThe confessional statement recorded under section 27