ROYDEN BUTHELLO Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This Second 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. 232/2020 registered at Police Station Azad Chowk, Raipur, District Raipur, for the offence punishable under Ss. 22 (b), 29 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS' Act). The first application being MCRC No. 9035/2020 was dismissed on merits vide order dtd. 29/1/2021.

(2.) The factual scenario portrayed by the prosecution in this case is that on receiving a secret information to the effect that one person was engaged in sale of Narcotic Drugs and Psychotropic substance near Ashram Tiraha, the police of Police Station Azad Chowk, Raipur, reduced the same to writing in Rojnamcha Sanha, witnesses were summoned and when the police party reached the spot, he started running away but ultimately was nabbed. Further case put forth by the prosecution is that after being taken into custody, that person disclosed his name to be Royden Buthello (present applicant) and on search 9 grams and 990 miligrams of Cocaine (on being weighed with polythene wrapped in) and 9 grams and 240 miligrams (on being weighed without polythene) was found in his possession.

(3.) Counsel for the applicant submit that the applicant is innocent and after drawing a false seizure memo, he has been dragged into the present case. They submit that contraband allegedly found in possession of the applicant was less than commercial quantity but more than small quantity and that the seizure witnesses namely Ganesh Jaiswal (PW-1) and Arjun Sendre (PW-3) examined by the prosecution have not supported the case of the prosecution and have been declared hostile. Likewise, according to the counsel for the applicant, the witness to weighment of the contraband namely Tarun Dhote (PW-2) has also not supported the case of the prosecution and has been declared hostile. Counsel for the applicant further submit that another witness relating to the investigation related proceedings namely Harkiran Kaur (PW-8) has also not supported the case of the prosecution and has been declared hostile. She, according to the counsel for the applicant, has categorically stated that she did not know the applicant and whatever she did during investigation including putting her signature on certain documents, was on the pressure of the police. According to the counsel for the applicant, there is one serious lacuna on the part of prosecution in effecting seizure and arrest of the applicant. According to them, in the case in hand the seizure of the contraband has been effected prior to the arrest of the accused. This is evident from the seizure memo which shows the seizure being effected on 21/10/2020 at 12.55 am whereas the applicant was arrested on the same day at 6.30 pm. According to the counsel for the applicant, there are material contradictions and omissions in the Court statements of other witnesses being PW-4, PW-5, PW-6, PW-7, PW-9 and PW-10 ' all police officials, as to the procedural formalities being undertaken during the course of investigation. Counsel for the applicant further submit that other accused persons namely Nikita Panchal, Harshwardhan Sharma, Lakhaprit Kaur have already been granted bail by the co-ordinate Bench of this Court vide order dtd. 14/6/2021 passed in MCRC No. 9508/2020, and order dtd. 19/8/2021 passed in MCRC Nos. 3436/2021 and 4512/2021. They further submit that as the applicant is behind the bars since 21/10/2020 and that the conclusion of trial may take some more time therefore, the present applicant may also be extended the same benefit.