Aarif @ Furkan vs State Of M.P.

This is first application under section 438 Cr.P.C for seeking anticipatory bail in connection with Crime No.545/2019 registered at Police Station -Industrial Area, Jaora District Ratlam for the offence punishable under Sections 8/15, 25 of NDPS Act and Sections 307, 147, 148, 336, 353 and 332 of IPC.

Prosecution case in brief is that the police received information on 5.12.2019 that some miscreants who deals in illicit poppy straw are transferring it from one vehicle to another at 'Bhura Ka Dhaba' on the Chorasi Badayela Fanta Highway Road. Acting on this information, the police raided the place and found that some persons transferring some bags from a Toofan Jeep bearing registration No.MP43 BD 3123 to a tractor trolley. The police cordoned them and inquired. They revealed their names as Bhura, Bhaiyu, Javed and Ataul Rehman. The police started further proceedings. Suddenly Bhura, got inside the jeep, sat on driver seat, Bhaiyu also pushed the police constable guarding the Toofan Jeep and jumped in, Bhura started it and tried to run over Sub Inspector Praveen Bhaskal and constable Sanjay Aajana who were busy in the proceedings. Fortunately, they swerved and barely saved themselves. Bhura and Bhaiyu ran away from the spot taking advantage of the dark. Sub Inspector intimated the police station and requested for additional force. But before the force could reach, 10 to 15 persons on Motorcyles, Brezza and Swift Cars having sticks, stone and boulders in their hands came threw stones and bashed constable Sanjay Aajana with sticks with the intention of rescuing Javed and Ataul Rehman from the lawful custody of the police. Fortunately, additional force arrived and all the scoundrels ran away from the spot. The Police recovered 16 bags of poppy straw containing 256.880 kg contraband from the jeep and tractor trolley.

The contention of the learned Counsel for the petitioner is that the petitioner has been impleaded in the array of accused only on the basis of the memorandum statements of Ataul Rehman and Javed. No other evidence is available in the case diary against him.

Besides, parity with co-accused Ramjani, who has been granted anticipatory bail vide order dated 26.02.2020 passed in M.Cr.C. No.4963/2020 is also claimed by the petitioner.

The objection of the learned Public Prosecutor is that identification of the petitioner is required in this case. The petitioner is absconding and is not cooperating with the investigation. He has been declared an absconder under Section 82-83 of the Cr.P.C. The Court has issued public notice. Prize has been declared for his arrest. In support of the contention, an affidavit of the SP, Ratlam has been filed.

Reliance has been placed on the judgment passed in State of Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC 171 wherein Hon'ble the Apex Court has held that the powers exercisable u/s 438 of Cr.P.C. are extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is specifically held by the Apex Court that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled for the relief of anticipatory bail.

It is further submitted that the petitioner along with other co-accused persons dared to assault the police to free two scoundrels involved in illegal trafficking of contraband. Therefore, they be not granted anticipatory bail.

It is argued that no such ground as has been taken by the State in the present petition, had been raised while considering bail petition of co-accused Ramjani, therefore, the case of the present petitioner is not identical to the case of Ramjani instead, the learned penal lawyer claimed that his case is identical to the case of Shahrukh and Salman who have been denied bail by this Court vide order dated 19.03.2020 passed in M.Cr.C No.11828/2020. Therefore, the bail cannot be granted on the ground of parity also.

Having regard to the rival contentions of the parties, nature and gravity of the offence, accusation made against the petitioners, proclamation issued against them and the judgment of the Hon'ble Apex Court, I do not find it appropriate to allow anticipatory bail to the petitioners.

Consequentially, the petition is dismissed.