RAKESH TANDAN Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This first application under Sec. 439 of the Code of Criminal Procedure has been filed by the applicant who is in custody in connection with Crime No. 176/2022 registered at Police Station Simga, District Balodabazar - Bhatapara, CG for the offence punishable under Sec. 20-B of NDPS Act.

(2.) Case of the prosecution in short is that acting upon a secret that Ganja was being transported in a Creta Car bearing registration No. CG-04-LJ-1947 information, the police reached the spot and found 167.200 grams of contraband (Ganja) in possession of the co-accused i.e. driver of the vehicle namely Yogeshwar Mishra.

(3.) Counsel for the applicant submits that the applicant is innocent and has been implicated in a false case; that no recovery of contraband has been effected from the conscious possession of the applicant, rather it was made from co-accused Yogeshwar Mishra. He further submits that other accused namely Narayan Sahu has been granted bail by this Court vide order dtd. 22/9/2022 passed in MCRC No. 5995/2022. He further submits that the seizure witnesses who happen to be the witness of entire investigation witnesses have not supported the case of the prosecution. He further submits that possibility of conviction of the present applicant is very remote and that the name of the present applicant is reflected in the memorandum of the co-accused which is not permissible in law in view of the decision of the Apex Court in the matter of Tofan Singh v. State of Tamil Nadu, reported in (2013) 16 SCC 31. He further submits that in the matter of Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh reported in 2022 SCC Online SC 1117 it has been categorically held that if the indpendent seizure witneses have not supported the case of the prosecution, foundation of the entire investigation collapses and therefore, at this stage provisions of Sec. 37 of the NDPS Act would not stand as a bar.