MANISH KUMAR AGRAWAL 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. 461/2022 registered at Police Station - Chhuriya, District Raj- nandgaon, CG for the offence punishable under Sec. 21(C) of NDPS Act.

(2.) Case of the prosecution in short is that on 6/11/2022 the Sub Inspector posted at Outpost Chichola, Police Station Chhuriya, District Rajnandgaon, received a secret information to the effect that in a turning going towards village LB Nagar one person carried a black-brown colour bag containing psychotropic drugs. Acting upon the said information, he along with his staff members and the witnesses went to the spot where one person wearing yellow colour T-shirt carrying black-brown colour bag was apprehended who on being asked disclosed his name as Thakur Ram Patel. On search being made the bag held by him was found to contain 25 packets of SPAS-TRANCAN PLUS Capsul totalling to 3600 pieces weighing 2160 gram which as per his disclosure was meant for sale. This apart, cash of Rs.300.00 was also seized from him. Co-accused Thakur Ram Patel is said to have informed that he purchased the said drug from the Manish Medical Stores, Deori, Maharashtra. During investigation, owner of Manish Medical Stores i.e. the present applicant was interrogated where he is said to have admitted that the medicines were being sold by him to co-accused Thakur Ram Patel without any proper document. From the medical stores, police seized 480 pieces of SPAS-TRANCAN PLUS Capsule containing notified Tramadol weighing 288 grams.

(3.) Counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the case. He submits that mandatory provision of Sec. 42 of the NDPS Act has not been complied with by the police officials while making seizure of alleged contraband from the medical stores of the applicant. He submits that on the date and at the time of seizure the applicant was not on the spot but was attending some meeting elsewhere. He submits that the applicant was having the licence to run the medical store and therefore, the seized drug is normally available in his medical store. Counsel for the applicant further submits that statement of the co-accused recorded under Sec. 67 of the NDPS Act in which name of the present applicant appeared would not be admissible in evidence against him. In this regard, reliance is placed on the decision of the Supreme Court in the matter of Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1. He further submits that as per the charge sheet memorandum of co-accused Thakur Ram Patel was recorded on 6/11/2022 at about 18.40 hours i.e. 6.40 PM whereas the memorandum of the applicant herein was recorded at about 20 hours i.e. 8 PM though on the same day. Notice under Sec. 91 CrPC was also given to the applicant and search of his medical store was conducted at about 20.40 hours i.e. 8.40 PM. He further submits that the place from where the applicant was apprehended is far away from his medical stores, and that they fall in two different districts, therefore, it cannot be assumed that the police authorities reached the medical store of the applicant so swiftly within a short span of 01 hour and 20 minutes. In support of his submissions, he placed reliance on the order dtd. 30/11/2022 passed by this Court in MCRC No. 5184/2022 and other connected matters, order dtd. 12/8/2022 passed in MCRC No. 6519/2022, order dtd. 18/7/2022 passed in MCRC No. 2284/2022 and order dtd. 10/5/2022 passed in MCRC No. 3022/2022 by the co-ordinate Bench of this Court. Counsel for the applicant submits that though from the chrge sheet compliance of Sec. 42 of the NDPS Act appears to been made with regard to the co-accused Thakur Ram Patel, but there is total non compliance of the same so far as present applicant is concerned. He submits that since there is total non compliance of sec. 42 of the NDPS Act, trial is vitiated and possibility of conviction of the applicant is very remote, and therefore, the present application may be allowed.