Rahul Yadav vs State Of Madhya Pradesh

This order shall also govern the disposal of MCRC No.26277/2018, as the same has arisen out of the same crime number.

These are the first bail applications under Section 439 of Cr.P.C. filed by the present applicants, who are in custody since 17.5.2018 in connection with

Crime No.223/2018 registered at Police Station Belbagh, Jabalpur for the offences punishable under Sections 8/21 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short “NDPS Actâ€​).

The prosecution story, in short, is that the present applicants were apprehended in connection with the aforesaid crime number on 17.5.2018 on an

information given by the informant (Mukhbir) that applicant Awadesh Kumar Shukla, who is wearing blue full kurta is in possession of smack and he

was accompanied by applicant Rahul Yadav, who is wearing reddish full shirt is also in possession of smack. Both these persons were stopped in front

of Ghodha (Horse) Hospital, Beoharbagh Tiraha as they were waiting for some customer to sell the smack. On their apprehension at around 21:50,

both the accused persons informed their names and further informed that accused Awadesh Kumar Shukla is a resident of Allahabad whereas Rahul

Yadav is a resident of Sonpura District Pratapgarh (UP). According to the prosecution, their consent was obtained u/s.50 of the NDPS Act and on

search each of them was found carrying 150 gm of smack. Thereafter two samples of 5 gms were prepared and the same were sent to the FSL. The

applicants were arrested then and there only and were sent to the jail.

Shri Vipin Yadav, learned counsel for applicant-Rahul Yadav in MCRC No.20753/2018 has vehemently argued and has submitted that the applicant

has been falsely implicated by the police, as a total fake case has been registered on a concocted story of the prosecution. It is further submitted that

present applicant Rahul Yadav is otherwise a resident of Mumbai. He was arrested by the police not on 17.5.2018 at 21:50, instead he was

apprehended of 16.5.2018 i.e. one day earlier at around 10:06 PM at platform No.1 of the Jabalpur Railway Station. Learned counsel for the applicant

has further submitted that the applicant is originally resident of Uttar Pradesh and is now settled in Mumbai. On 16.5.2018 he was travelling from

Allahabad to Mumbai in Train No.12168-BSB LTT Super Express with his relatives Ravendra, Kusum, Seema and Ritesh and his marriage was

solemnized on 29.4.2018 itself and after the marriage he was going to Mumbai for the first time by boarding the aforesaid train. The photocopy of

marriage invitation card of the applicant as also the railway ticket on which he was travelling is filed on record.

It is further submitted that at Jabalpur Railway Station the applicant and his relatives travelling with him on the said ticket, were directed to alight from

the bogie and while his relatives were let off but he was taken into the custody then and there only which is also substantiated by the CCTV camera

footage of the Jabalpur Railway Station, which according to the applicant has been obtained under the Right to Information Act, 2005 (RTI) from the

railways authorities. During the course of argument, learned counsel for the applicant has placed on record the certified copy of the CCTV footage

of 16.5.2018 relating to door 2, camera 04 which includes the footage of 10:08 pm as the exact time is around 22:08 hours in the night, in which it is

seen that the applicant and co-accused Awadesh Shukla are being escorted by the policemen from door No.2.

Learned counsel for the applicant has submitted that the applicant and his family members were not aware about the incident and on 19.5.2018 a

news was published in the news paper that the applicant has been arrested along with another person near Ghodha (Horse) Hospital with 150 gms of

smack each, hence immediately on 21.5.2018 a complaint was lodged by the brother-in-law of the applicant to the IG, Zone Jabalpur narrating the

incident but no action has been taken in respect of the same. Learned counsel has placed on record the copy of applicant’s offer letter for

employment dated 3.2.2018, who is employed in SAMANK Consumer Products Pvt. Ltd. as Marketing Representative, in which his annual salary is

Rs.1,75,200/-. It is further submitted that the applicant has completed his schooling as well as the graduation from Mumbai only and his various mark

sheets and various appreciation certificates have also been placed on record.

Shri Yadav has further submitted that prior to coming to his native place, the applicant had also applied for leave from his company on 14.4.2018, a

copy of email in this regard is also placed on record, in which he has sought leave for 26 days from 21.4.2018 to 16.5.2018 on account of his marriage.

Learned counsel for the applicant has further submitted that applicant Rahul Yadav is not acquainted with other co-accused Awadesh Shukla. Thus,

learned counsel for the applicant has submitted that looking to the background of the applicant coupled with CCTV footage which has not been denied

by the prosecution also, the applicant is entitled to be released on bail.

In support of his contention, Shri Vipin Yadav, learned counsel for the applicant has also relied upon the judgment of the Hon’ble Apex Court in

the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand, decided on 27.4.2018 in Criminal Appeal No.273/2007, wherein the Hon’ble

Apex Court has emphasized the significance of compliance of Sections 50 of the NDPS Act after referring to the earlier judgment in the case of

Vijaysingh Chandubha Jadeja Vs. State of Gujarat, reported in 2011(1) SCC 609 wherein it is held that in order to make the search and recovery of

the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the

NDPS Act and presence of a Magistrate or a Gazetted Officer is a must.

Shri Parag S. Chaturvedi, learned counsel for applicant-Awadesh Shukla in MCRC No.26277 of 2018 has also advanced similar argument and has

submitted that so far as applicant Awadesh Shukla is concerned, he was also travelling in the same train on a ticket issued by the railways, the copy of

which is also placed on record, in which he was allotted birth No.33 of Coach No.S1. It is further submitted that the applicant has a private job in

Mumbai and was returning from Allahabad to Mumbai on 16.5.2018. Learned counsel for the applicant has also submitted that the present applicant

was forcefully dragged out of the train and was taken to the police station, which is recorded in CCTV camera of the platform No.1 of the Jabalpur

Railway Station. It is further submitted that on the next day i.e. on 17.5.2018 when his friend Sunil Patel reached the Railway Station at Mumbai to

receive him, on realizing that the applicant has not arrived from the said train, he immediately called the applicant on his mobile, which was received by

some police constable of Belbagh Police Station at 3:17 PM and he was informed that applicant Awadesh Shukla has been arrested in connection with

narcotic case. Sunil Patel immediately informed the father-in-law of the applicant and they also spoke on conference call to the Belbagh police station

on 17.5.2018 at 5:30 PM.

It is further submitted that when a news was published on 19.5.2018 regarding the applicant’s arrest along with smack, after obtaining CCTV

footage of 16.5.2018 of Camera No.3 between 21:45 to 22:15 provided by the Railways Department in Pen drive on the same day, an application was

submitted to the IG police, Jabalpur and Superintendent of Police, Jabalpur on 8.6.2018, but no action has been taken. Learned counsel for the

applicant has further submitted that the applicant has been falsely implicated in the matter and are languishing in jail since 16.5.2018. It is further

submitted that the aforesaid facts regarding the telephonic conversation between the applicant’s friend and his father-in-law and the police officer

at police station Belbagh can also be verified by the prosecution.Â

Shri Samdarshi Tiwari, learned Dy. Advocate General for the State has opposed the prayer of the applicants and has submitted that the applicants

were found in possession of 300 gms of smack, which is the contraband worth more than 25 lakhs rupees and the entire of process of their search,

seizure and arrest has been followed as per the provisions of NDPS Act, 1985, which cannot be questioned at this stage and moreover the seizure of

contraband from the applicants is a fact, and therefore no leniency can be shown to them, as it is a serious offence relating to narcotic drugs, which is

punishable with ten years imprisonment.

Learned counsel for the State has further submitted that in compliance of the Court orders dated 19.6.2018 and 2.7.2018, a preliminary report has also

been prepared by the police, which is placed on record by the learned counsel for the State in which a report has been submitted by the

Superintendent of Police to the IG Police, Jabalpur wherein it is categorically mentioned that no irregularity much less any illegality has been

committed by the police officers of the concerned police station, as they had prior information that some persons are coming with smack on 16.5.2018.

It is also mentioned that as per the description given by the informant (Mukhbir) two persons along with some ladies were also inquired at the railway

station but soon thereafter they were let-off and no person was detained on 16.5.2018 at Begbagh Police Station and on 17.5.2018 itself the applicants

were found to be carrying contraband in front of Ghodha (Horse) Hospital Jabalpur from where they were arrested and have been sent to the jail.

Learned counsel for the State in support of his contention has also relied on the judgment of Hon’ble Apex in the case of Vijaysingh Chandubha

Jadeja (supra) to submit that no procedural lapses were made by the prosecution in compliance of Section 50 of the NDPS Act. It is further submitted

that the charge sheet has already been filed and there are no criminal antecedents of the applicant hence he be released on bail.

Heard the learned counsel for the parties and perused the case diary.

On close scrutiny of the documents filed along with the bail applications as also case diary and the enquiry report submitted by the Superintendent of

Police, Jabalpur to the IG Police, Jabalpur, this Court is of the considered opinion that the case of the applicants is arguable. The CCTV footage and

the relevant photographs of which have also been placed on record and after watching the same closely, it is apparent that on 16.5.2018 at around

22:08:32 hours both the applicants can be clearly seen being escorted and surrounded by the police personnel, a couple of whom were also in plain

dress. It is also apparent that the applicants were escorted and were surrounded by the police personnel and were in their control. From the aforesaid

footage, it is difficult to come to a conclusion that the manner in which they were being surrounded and were taken through the gate they were

allowed to walk freely. It is further observed that this court, on 2.7.2018 had made the following following order:

“In the present case, learned Dy. Advocate General has submitted that looking to the seriousness of the case, Superintendent of Police, Jabalpur,

has directed the Additional Superintendent of Police to investigate the matter vide letter dated 20.06.2018.

Learned counsel has further submitted that the investigation is going on and they are trying to verify the details which have been given by the present

applicant Rahul Yadav as also the co-accused Awadhesh and since both are residents of Uttar Pradesh and applicant Rahul Yadav is working in

Mumbai, it would take some time to check the veracity of their statements.

Under the aforesaid facts and circumstances, let the matter be listed in the week commencing 16.07.2018.â€​

After the aforesaid order, it was incumbent upon the police to come up with all the relevant record, like both the applicants knew each other and were

in conspiracy with each other carrying contraband but despite the fact that the counsel for the State has sought time on 2.7.2018 to verify the facts

regarding the applicants’ status and the veracity of their statements, no action appears to have been taken. It is also surprising that in this era of

digital revolution, when a person's digital footprints are easily traceable, why no efforts were made to see that both the applicants knew each other

from the beginning or how they moved in the city soon after they were allegedly let off from the railway station or, if they were not detained on

16.05.2018 why no CCTV footage of the police station was brought on record or why their mobile tower locations were not traced? Apparently the

prosecution agencies do-not want to part with the old fashioned ways of investigations which allows them too much liberty to play with the facts,

whereas, when modern gadgets are brought into service, the scope of interference become minimal. In the considered opinion of this court, this is also

a wake up call for the prosecution agencies either to mend their ways or be left out.

In the present case the charge sheet has already been filed by the police and it is true that the charge sheet reveals that the applicants were arrested

and each of them were found in possession of 150 gms of smack, which is highly concentrated narcotic drugs but the documents, CCTV footage,

photographs provided by the Railways authorities under the RTI and filed by the applicants in the present case are of clinching in nature and to ignore

the same at this stage would amount to closing the eyes from the reality which this Court finds itself incapable of If Shri Samdarshi Tiwari, learned

Dy. Advocate General’s submission is accepted at its face value that the applicants were found in possession of contraband and nothing else is

required to be seen at this stage then it would not only be grave injustice to the applicants but would also impinge upon their personal liberty as

provided under Article 21 of the Constitution of India. This court has no hesitation to hold that the video footage filed on record by the applicants are

unblemished in nature and can be relied upon by this Court at this juncture for consideration of their bail applications. In the peculiar facts and

circumstances of this case, this Court is of the considered opinion that the applicants have made out a case for grant of bail.

Thus, without expressing any view on the merits of the case, both the applications filed under Section 439 of Cr.P.C. by applicants viz. Awadesh

Shukla in MCRC No.26277/2018 and Rahul Yadav in MCRC No.20753/2018 are hereby allowed.

It is directed that present applicants be released on bail on their furnishing a bond in sum of Rs.1,00,000/- (Rupees one lakh) each with one surety

bond of the same amount to the satisfaction of the trial Court, to appear before the trial Court on the dates given by the Court.

Apart from the above mentioned conditions, the applicants shall further abide by the following conditions:-

(i) that the applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation

against them so as to dissuade them from disclosing such facts to the Court or to any police officer;

(ii) that the applicants shall not leave India without the previous permission of the Court; and (iii) that the applicants shall not commit an offence similar

to the offence of which they are accused, or suspected, of the commission of which she is suspected.

With the aforesaid, the present applications filed under Section 439 of Cr.P.C. are hereby disposed.

Certified copy as per rules.