MANU/MP/1512/2022

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Misc. Criminal Case No. 14664 of 2022
Decided On: 22.06.2022
Appellants: Jaykumar
Vs.
Respondent: Central Narcotics Bureau Mandsaur (Madhya Pradesh)
Hon'ble Judges/Coram:
Anil Verma, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mrigendra Singh, Sr. Advocate and Manu Maheshwari,
Advocate
For Respondents/Defendant: Manoj Soni, Advocate
ORDER
Anil Verma, J.
1. Applicant/petitioner has filed this first bail application under Section 439 of the Code
of Criminal Procedure, 1973. He is in Jail since 27/08/2021 in connection with Crime
No. 1/2021 registered at P.S.-CBN Mandsaur District Neemuch (M.P.) for commission of
offence punishable under Section 8/15, 8/18, 25, 29 of NDPS Act.
2. As per the prosecution story, on 26.8.2021, the respondent/CBN officials got discrete
information from the informer that present applicant/Jay Kumar doing some illegal act
in his factory/godown. Acting upon said information, CBN officials while searching the
factory/godown which was under the ownership of present applicant Jay Kumar, seized
98 bags of wheat mixed poppy straw total 7841.760 kg, 3 bags containing poppy straw
powder weighting 100.190 kg, two bags containing poppy straw husk weighting 21.540
kg, 300 bags containing Afeem Kala Dana (Black Opium) weighting 17557.460 kg and
one bag containing 56 kg poppy straw. Four persons were found in the factory namely
present applicant/Jai Kumar, Vishambhar, Rajendra and Anurag Agrawal. It is also
alleged that one cheque book of HDFC bank account No. 50200052872479 in cheque
No. 000138 to 000175 issued in the name of Padamnath Enterprises. Accordingly, a
case has been registered against the present applicant other co-accused persons.
3. Learned counsel for the applicant contended that applicant is innocent and has been
falsely implicated in this offence. He is in custody since 27/08/2021. He was not
present at the place and time of the incident and no recovery has been made from his
possession. He is made accused only on the basis that the place of seizure was under
his ownership, but he has rented out the aforesaid premise to Padmanath Enterprises on
01/09/2020 and again renewed the same by renewal dated 01/08/2021, wherein three
Godowns except for office belong to Padmanath Enterprises. The same was designated
as principal place of business for Padmanath Enterprises. The same reflected by rent
agreement, invoices, GST register of Padmanath Enterprises and Padmanath Enterprises
has been carrying his business from the aforesaid premise for last two years, therefore,
the present applicant has no role in the alleged seizure from the premise. The applicant
i s carrying out his proprietorship business in the name of M/s. Hitanshi Trading Co

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since 18/07/2018 having its registered principal place for business at 20, Industrial
Area, Neemuch. He carries wholesale business in posta dana with all due permissions
and sanctions of the Excise Department. He along with co-accused persons were
harassed and kept in illegal detention since 25/08/2021. No offence under sections 25
and 29 of NDPS Act has been made out. The applicant is aged about 42 years and sole
bread-earner in his family. Learned counsel further contended that challan has not been
filed within the stipulated period of 180 days, therefore, present applicant deserves for
default bail and hence, he be released on bail.
4. Per-contra, learned counsel for the respondent/CBN opposed the bail application and
prays for its rejection by submitting that the seized quantity of contraband is more than
25.57 tons, which is more than commercial, then punishment is of rigorous
imprisonment upto 20 years with fine, which may be extended to Rs. 2,00,000/-.
Hon'ble Supreme Court in the case of Union of India Vs. Ram Samujh and another
reported in MANU/SC/0530/1999 : 1999 SCC (Cri.) 1522, while canceling bail, observed
that the offence under the NDPS Act are the offence against the society and accused
should not be released unless requirement of section 37 of the NDPS Act are satisfied.
Co-accused Kailash Chand Gadiya in his statement in his bail application submitted that
he had never taken factory/Godown of the present applicant on rent note and rent note
dated 01/08/2021 is a forged document. The applicant is kingpin of drug cartel and was
running syndicate across the multiple states. Four offences including three offences
under section 8/15 and 8/29 of NDPS Act have been registered against the applicant. He
is habitual and repeat offender. If he is released on bail, he would again repeat the
offence and may influence the witnesses, therefore, he does not deserve for bail.
5. Perused the impugned order of the trial Court as well as the case dairy.
6 . For the purpose of proper appreciation of contention of learned counsel for the
applicant, it would be appropriate to reproduce the section 167 of Cr.P.C. and section
36_A(4) of the NDSPS Act., which are as follow.
"Section 167 of CrPC:
"167-Procedure when investigation cannot be completed in twenty-four
hours,--(1) Whenever any person is arrested and detained in custody,
and it appears that the investigation cannot be completed within the
period of twenty-four hours fixed by section 57, and there are grounds
for believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and shall
at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this
section may, whether he has or has no jurisdiction to try the case, from
time to time, authorize the detention of the accused in such custody as
such Magistrate thinks fit, a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having such jurisdiction:
Provided that,--(a) the Magistrate may authorize the detention
of the accused person, otherwise than in the custody of the

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 police, beyond the period of fifteen days, if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall
authorize the detention of the accused person in custody under
this paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment
for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days, or
sixty days, as the case may be, the accused person shall be
released on bail, if he is prepared to and does furnish bail, and
every person released on bail under this sub-section shall be
deemed to be released under the provisions of Chapter XXXIII
for the purposes of that Chapter;
(b) no Magistrate shall authorize detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the custody
of the police, but the Magistrate may extend further detention
in judicial custody on production of the accused either in
person or through the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorize detention in
the custody of the police."
Explanation I.--For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained in
custody so long as he does not furnish bail.
Explanation II.--If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be
proved by his signature on the order authorising detention or
by the order certified by the Magistrate as to production of the
accused person through the medium of electronic video
linkage, as the case may be.
Provided further that in case of a woman under eighteen years
of age, the detention shall be authorised to be in the custody
of a remand home or recognised social institution.
(2A) Notwithstanding anything contained in sub-section (1) or sub-
section (2), the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of a sub-
inspector, may, where a Judicial Magistrate is not available, transmit to
the nearest Executive Magistrate, on whom the powers of a Judicial
Magistrate or Metropolitan Magistrate have been conferred, a copy of
the entry in the diary hereinafter prescribed relating to the case, and
shall, at the same time, forward the accused to such Executive

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 Magistrate, and thereupon such Executive Magistrate, may, for reasons
to be recorded in writing, authorise the detention of the accused person
in such custody as he may think fit for a term not exceeding seven days
in the aggregate; and, on the expiry of the period of detention so
authorised, the accused person shall be released on bail except where
an order for further detention of the accused person has been made by
a Magistrate competent to make such order; and, where no order for
such further detention is made, the period during which the accused
person was detained in custody under the orders made by an Executive
Magistrate under this sub-section, shall be taken into account in
computing the period specified in paragraph (a) of the proviso to sub-
section (2):
Provided that before the expiry of the period aforesaid, the
Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the
entries in the diary relating to the case which was transmitted
to him by the officer in charge of the police station or the
police officer making the investigation, as the case may be.
(3) A Magistrate authorising under this section detention in the custody
of the police shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such
order shall forward a copy of his order, with his reasons for making it,
to the Chief Judicial Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the
investigation is not concluded within a period of six months from the
date on which the accused was arrested, the Magistrate shall make an
order stopping further investigation into the offence unless the officer
making the investigation satisfies the Magistrate that for special
reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has
been made under sub-section (5), the Sessions Judge may, if he is
satisfied, on an application made to him or otherwise, that further
investigation into the offence ought to be made, vacate the order made
under sub-section (5) and direct further investigation to be made into
the offence subject to such directions with regard to bail and other
matters as he may specify."
Section 36-A (4) of NDPS Act:
(4) In respect of persons accused of an offence punishable under section 19 or
section 24 or section 27A or for offences involving commercial quantity the
references in subsection (2) of section 167 of the Code of Criminal Procedure,
1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed
as reference to "one hundred and eighty days":
Provided that, if it is not possible to complete the investigation within
the said period of one hundred and eighty days, the Special Court may
extend the said period up to one year on the report of the Public

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 Prosecutor indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said period of one
hundred and eighty days."
7. A bare reading of Section 167 of CrPC reveals that an accused, who is in custody, is
entitled to default bail without going into the merits of the allegations, if the
investigation is not completed within sixty days in offences attracting punishment upto
ten years or within a period of ninety days in offences attracting sentence more than ten
years.
8. NDPS Act, 1985 prescribe for longer period of 180 days to be eligible for default bail
provided where offences u/S. 19 or Section 24 or Section 27-A of NDPS Act are alleged
or any offence under NDPS Act involving commercial quantity. Reference in Subsection
2 of Section 167 of the Code of Criminal Procedure, 1973 thereof to "ninety days",
where they occur, shall be construed as reference to "one hundred and eighty days"
9 . In present case, total 25.57 tons contraband has been recovered from the
Godown/factory owned by the applicant
1 0 . Learned counsel for the applicant has places reliance upon the judgments of
Hon'ble Apex Court in the case of Union of India Vs. Thamisharasi and others reported
in MANU/SC/0714/1995 : (1995) 4 SCC 190, wherein it has been held as under:
"10. The limitations on granting of bail specified in clause (b) of sub-section
(1) of Section 37 come in only when the question of granting bail arises on
merits. By its very nature the provision is not attracted when the grant of bail is
automatic on account of the default in filing the complaint within the maximum
period of custody permitted during investigation by virtue of sub-section (2) of
Section 167 CR.P.C. The only fact material to attract the proviso to sub-section
(2) of Section 167 is the default in filing the complaint within the maximum
period specified therein to permit custody during investigation and not the
merits of the case which till the filing of the complaint are not before the court
to determine the existence of reasonable grounds for forming the belief about
the guilt of the accused. The learned Additional Solicitor General submitted that
this belief can be formed during investigation by reference to the contents of
the case diary even before the charge-sheet has been filed. This is fallacious.
Till the complaint is filed the accused is supplied no material from which he can
discharge the burden placed on him by Section 37(l) (b) of the N.D.P.S. Act. In
our opinion, such a construction of clause (b) of sub-section (1) of Section 37
is not permissible."
In Bikramjit Singh Vs. State of Punjab reported in MANU/SC/0749/2020 : (2020) 20
SCC 616, it has been held as under:
"37. On the facts of the present case, the High Court was wholly incorrect in
stating that once the challan was presented by the prosecution on 25.03.2019
as an application was filed by the Appellant on 26.03.2019, the Appellant is not
entitled to default bail. First and foremost, the High Court has got the dates all
wrong. The application that was made for default bail was made on or before
25.02.2019 and not 26.03.2019. The charge sheet was filed on 26.03.2019 and
not 25.03.2019. The fact that this application was wrongly dismissed on
25.02.2019 would make no difference and ought to have been corrected in
revision. The sole ground for dismissing the application was that the time of 90
days had already been extended by the learned Sub-Divisional Judicial

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 Magistrate, Ajnala by his order dated 13.02.2019. This Order was correctly set
aside by the Special Court by its judgment dated 25.03.2019, holding that
under the UAPA read with the NIA Act, the Special Court alone had jurisdiction
to extend time to 180 days under the first proviso in Section 43-D(2)(b). The
fact that the Appellant filed yet another application for default bail on
08.04.2019, would not mean that this application would wipe out the effect of
the earlier application that had been wrongly decided. We must not forget that
we are dealing with the personal liberty of an accused under a statute which
imposes drastic punishments. The right to default bail, as has been correctly
held by the judgments of this Court, are not mere statutory rights under the
first proviso to Section 167(2) of the Code, but is part of the procedure
established by law under Article 21 of the Constitution of India, which is,
therefore, a fundamental right granted to an accused person to be released on
bail once the conditions of the first proviso to Section 167(2) are fulfilled".
In the case of Union of India Vs. K.A. Najeeb reported in MANU/SC/0046/2021 : (2021)
3 SCC 713 it has been held that:
"19 Adverting to the case at hand, we are conscious of the fact that the charges
levelled against the respondent are grave and a serious threat to societal
harmony. Had it been a case at the threshold, we would have outrightly turned
down the respondent's prayer. However, keeping in mind the length of the
period spent by him in custody and the unlikelihood of the trial being
completed anytime soon, the High Court appears to have been left with no
other option except to grant bail. An attempt has been made to strike a balance
between the appellant's right to lead evidence of its choice and establish the
charges beyond any doubt and simultaneously the respondent's rights
guaranteed under Part III of our Constitution have been well protected ".
Learned counsel for the applicant has also placed reliance upon the orders/judgment
delivered in the case Jai Kumar Vs. State of M.P. (MCRC no. 20957/2022 dated
06/05/2022); Sanjay Kumar Kedia Vs. Intelligence Officer, NCB and another reported in
MANU/SC/1963/2009 : (2009) 17 SCC 631; Bira Singh Vs. State of Odisha (BLAPL no.
9138/2021 decided by High Court of Orissa vide order dated 22/02/2022)
11. In rebuttal, learned counsel for the respondent/CBN has placed reliance upon the
judgment delivered in the case of State of (NCB) Bengaluru (Special Leave to Appeal
no. 242/2022); State of M.P. Vs. Kajad reported in MANU/SC/0541/2001 : 2001 SCC
(Cri.) 1520 and Union of India Vs. Ram Samujh and Another reported in
MANU/SC/0530/1999 : 1999 SCC (Cri.) 1522.
1 2 . It is also noteworthy to say that section 36-A(4) also provides that if it is not
possible to complete the investigation within the said period of one hundred and eighty
days, the Special Court may extend the said period up to one year on the report of the
Public Prosecutor indicating the progress of the investigation and the specific reasons
for the detention of the accused beyond the said period of one hundred and eighty days.
13. In the present case, respondent/CBN has moved an application under section 36-
A(4) of the NDPS Act before the Special Judge, (under NDPS Act), Neemuch for
extension of the said 180 days upto to one year, which was decided by the Special
Judge vide order dated 18/02/2022. From perusal of the said order, it appears that
present applicant is given sufficient opportunity of hearing for the said application and
after giving opportunity of hearing to both the parties, the trial Court has extended the

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said period from 180 days to one year; that order has not been challenged by the
applicant, therefore, the aforesaid order has attained finality and it is binding upon the
applicant/petitioner.
1 4 . Since this Court already finds on prima-facie assessment that the seized huge
quantity (25.57 tons) of the contraband in the present case is more than commercial
quantity, it is obvious that present case falls under section 18-B of the NDPS Act where
maximum sentence prescribed is 20 years.
1 5 . In the instant case, the quantity of psychotropic substance seized from the
applicant/petitioner is more than commercial quantity as prescribed under the NDPS Act
and the trial Court has extended the period of his custody from 180 days to one year,
which was not challenged by the applicant, therefore, no right of default bail is
available for the applicant. Apart from above, the applicant is a habitual offender of
offence under the NDPS Act. Area of investigation of heinous offence is very vast. There
is bar under section 37 of the NDPS Act. The investigation is still continued and in the
matter of this nature, custodial interrogation of the applicant/petitioner becomes
necessary, therefore, in the above circumstances, the applicant/petitioner is not entitled
for regular bail or default bail. Accordingly, at this stage, no case for grant of bail to the
applicant is made out.
16. In light of the aforesaid discussions, present application filed under section 439 of
Cr.P.C. has no force and is hereby rejected.
Certified copy, as per Rules.
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