1 2025:CGHC:2283 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCRC No. 316 of 2025 Sourabh Nagwanshi S/o Rajkumar Suryawanshi Aged About 27 Years Occupation - Govt. Service/Constable G.R.P. Railway Bilaspur Chhattisgarh, R/o Village Jamkor Police Station Mungeli, District Mungeli, Present Address - Police Quarter No. 1241/3, Construction Colony, Thana Tarbahar, District Bilaspur Chhattisgarh. ... Applicant versus State of Chhattisgarh Through Police Station G.R.P., District – Bilaspur, Chhattisgarh. ---- Non-applicant For Applicant : Mr. Sandeep Kumar Jain, Advocate, as well as Mr. Rupesh Singh, Advocate. For Non-applicant/State : Mr. UKS Chandel, Dy. Advocate General as well as Mr. Sangharsh Pandey, Government Advocate, Hon'ble Shri Ramesh Sinha , Chief Justice Order on Board 14.01.2025 1. The applicant has preferred this First Bail Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) in connection with Crime No.117/2024, registered at RAJSHEKHAR SONI Digitally signed by RAJSHEKHAR SONI 2 Police Station – G.R.P., District – Bilaspur (C.G.) for the offences punishable under Section 20(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for short, the NDPS Act. 2. The prosecution story in brief, is that on the basis of information from an informer, on 23.10.2024, the Police of Police Station G.R.P. Bilaspur seized 10 kg of illegal ganja from the possession of accused Yogesh Sondhiya and 10 kg of illegal ganja from the possession of accused Rohit Dwivedi at Railway Station Bilaspurt. Further investigation of the case was done by Anti Crime Cyber Unit (hereinafter referred as A.C.C.U.) Bilaspur and on the basis of the memorandum statement given by them on 24.10.2024, 4 constables posted in Police Station G.R.P. Laxman Gain, Mannu Prajapati, Santosh Rathore and Saurabh Nagvanshi (applicant) were also made accused and arrested, and thereafter, during the course of investigation by A.C.C.U., another accused Shyamdhar Chaudhary was also arrested. Hence, this application. 3. It has been argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case. It is further submitted that the name of the applicant has come into light from the memorandum statement of the co- accused persons, Rohit and Yogesh. It is further submitted that the charge-sheet has been filed in this case. The applicant is in jail since 29.10.2024. The conclusion of the trial is likely to take some time, therefore, he prays for grant of bail. 3 4. It is further submitted by the counsel for the applicant that the applicant/accused was appointed by the Railway Police Superintendent, Bilaspur, to a Police team tasked with curbing the smuggling of ganja in Railways. The applicant/accused's team had seized over 40 cases of illegal ganja smuggling in trains over the past year, earning the wrath of big-time smugglers in Bilaspur and surrounding cities. These smugglers, whose employees were caught by the applicant/accused and his team, used their influence to pressure senior Railway and District Officials to remove the applicant/accused and his team. However, due to the applicant/accused and his team's good work, which was praised in local newspapers, senior Police officials could not remove them despite constant pressure. 5. It is further submitted that the memorandum statement made by the police in custody is not admissible in the eyes of law. In this regard, he also relied on the judgment of the Hon’ble Hight Court of Madhya Pradesh vide order dated 13.09.2021 passed in Criminal Revision No. 1341/2021 [Anoop Jaiswal alias Jassa vs. State of MP], whereas the accused was discharged from the charges under the NDPS Act, on the ground that apart from the memorandum statement of the co-accused persons, there was no other evidence or document or seizure from the accused, which may form the basis of a strong suspicion or which may implicate or connect the accused with the alleged offence. 4 6. It is further submitted by the counsel for the applicant that the search and seizure proceedings in this case were conducted by the Government Railway Police, and therefore, the Cyber Unit cannot conduct further investigation in the case, which is beyond their jurisdiction. The proceedings initiated by the ACCU, Government Railway Police, under the NDPS Act are null and void ab initio. The Police had an ulterior motive to falsely implicate the applicant/accused and his team in a false case to protect the smuggling of ganja in Railways. When the main accused, Rohit and Yogesh, were arrested, they made statements before the Police, but they did not mention the applicant/accused anywhere in their statements. 7. It is further submitted by the counsel for the applicant that the statements made by the main accused before the Station House Officer of the Government Railway Police were presented before the trial Court along with the FIR, seizure memo, and arrest memo when the main accused were produced for judicial remand. An application was also filed by the applicant before the trial Court to preserve the documents of the statements made by the main accused. 8. It is further submitted by the learned counsel for the applicant that considering the legal aspect, the applicant/accused and his team of four members are not in any legal custody at present because they were not arrested by the GRP Police, and the accused were 5 sent to jail by the Cyber Unit. In such a situation, the applicant/accused cannot be said to be in the custody of the Police department that arrested him, and at present, the applicant/accused and his team members are in the illegal custody of the Cyber Unit, which is a direct violation of the provisions of the Constitution. 9. Learned counsel for the applicant also relied upon the judgment of the Hon’ble Supreme Court vide order dated 10.11.2000 passed in Roy V. D. vs State of Kerala, whereas it is held in para 16 as under : “ 16. Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub-section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial. ” 10. Learned cousnel for the aplicant also relied upon the judgment of the Hon’ble High Court of Madhya Pradesh vide order dated 23.09.2020 passed in MCRC No. 17012/2020 [Kamta Prasad Jaiswal vs. The State Of Madhya Pradesh], whereas the bail has been allowed to the accused on the ground that the accused was implicated in the said case on the basis of the memorandum 6 statement of the co-accused. On the same ground the Hon’ble High Court of Madhya Pradesh has also discharge an accused from the charges under the NDPS Act vide order dated 08.02.2023 passed in Criminal Revision No. 2325/2022 [Anil Patel vs. The State of Madhya Pradesh]. 11. On the other hand, the learned counsel for the State opposes the bail application and submits that on the basis of information from an informer, on 23.10.2024, the Police of Police Station G.R.P. Bilaspur seized 10 kg of illegal ganja from the possession of accused Yogesh Sondhiya and 10 kg of illegal ganja from the possession of accused Rohit Dwivedi at Railway Station Bilaspurt. Further investigation of the case was done by A.C.C.U. Bilaspur and on the basis of the memorandum statement given by them on 24.10.2024, 4 constables posted in Police Station G.R.P. Laxman Gain, Mannu Prajapati, Santosh Rathore and Saurabh Nagvanshi were also made accused and arrested, and thereafter, during the course of investigation by A.C.C.U., another accused Shyamdhar Chaudhary was also arrested. It is further submitted that the charge-sheet has been filed in this case. It is further submitted that the bail application of the co-accused has already been rejected by this Court vide order dated 03.01.2025 passed in MCRC No. 8796/2024. It is further submitted that the case-law cited by the learned counsel for the applicant is no applicable in the present case, as the same is distinguishable from the facts and circumstances of the present case. Hence, this bail 7 application is liable to be rejected. 12. It is further submitted by the learned State counsel that the actual facts of the present case are that during the course of investigation, the accused, Yogesh Sondhiya and Rohit Dwivedi, were arrested and taken on Police remand for interrogation. During their memorandum statement, they revealed that Lakshman Gain, Mannu Prajapati, Santosh Rathaur, and Saurabh Nagwanshi (applicant), all are constables posted at GRP Police Station, Bilaspur, used to seize ganja in trains and sell it to Yogesh alias Guddu and Shyamdhur alias Chotu. The said four accused constables has taken private individuals, Guddu alias Yogesh Sondhiya and Chotu alias Shyamdhur Chaudhary, with them during their patrolling and checking duties in trains passing through places like Mahasamund, Raipur, Durg, Gondiya, Champa, Sakti, and Raigarh. During checking, if ganja was seized, the constables would supply it to individuals who had been called beforehand through Chotu and Guddu, and receive the payment in cash or online through the same mediums. 13. It is also submitted by the learned State counsel that from the perusal of the case diary and the call records of the accused persons, it transpires that accused/applicant constable Saurabh Nagvanshi was in touch with mobile SIM numbers 8871160191, 9479160191 and has made several calls to the mobile numbers 8103618649 and 998119735 of arrested accused, namely, 8 Yogesh Sondhia. Accused Saurabh Nagvanshi was in contact with the above accused even on the day of the incident. It also transpires from the statement of witness Chainlal Bopche, resident of Balaghat (M.P.), who told in his statement that earlier in the year 2018 the applicant was caught carrying ganja in the train by accused constable Laxman Gain, Mannu Prajapati, Santosh Rathore, and thereafter, he got acquainted with Mannu Prajapati, who used to sell ganja to him through Chotu and Guddu and got the money obtained from the sale of ganja transferred to his bank account. Further, after examining the bank statement of Mannu Prajapati's father Kuleshwar Chakdhari's SBI account No.20082496069 from 01.01.2018 to 13.12.2024, it was found that prior to the above period only Rs. 1472/- was deposited in the said account and during the said period an amount of Rs. 01 crore 80 lakh 78 thousands was deposited and an amount of about Rs. 01 crore 75 lakh was withdrawn. In the above bank account an amount of Rs. 72 thousand was deposited by accused/applicant Saurabh Nagvanshi and Rs 62 thousand was transferred (withdrawn). Which is the prima facie evidence of the involvement of the applicant and other accused persons in the crime of smuggling of contraband article Ganja. Hence, this bail application of the applicant is liable to be rejected. 14. It is further submitted by the learned State counsel with respect to the point which has been raised by the counsel for the applicant that no sanction has been taken for prosecution of the present 9 case from the competent authority under Section 197 CrPC, that a question of sanction only arises when a person does an act in discharge of his officials duty, then the sanction is required, whereas in the instant case the applicant and accused persons are the Police Constables and they are indulged in smuggling of Ganja. Therefore, this bail application of the applicant is liable to be rejected. 15. I have heard learned counsel for the parties and perused the material available on record. 16. After considering the submissions advanced by the learned counsel for the parties and the utmost circumstpectuion of the case diary, it transpires that the applicant along with the accused persons who are constables in GRP Police Station, Bilaspur, have used multiple fake SIM cards in other people's names and utilize the bank accounts of their acquaintances and relatives to receive payments for the sale of ganja. The applicant along with the other accused persons are constables posted at GRP Police Station, Bilaspur, used to seize ganja in trains and sell it to Yogesh alias Guddu and Shyamdhur alias Chotu, the said four accused constables have taken private individuals, Guddu alias Yogesh Sondhiya and Chotu alias Shyamdhur Chaudhary, during their patrolling and checking duties in trains passing through places like Mahasamund, Raipur, Durg, Gondiya, Champa, Sakti, and Raigarh, if ganja was seized, the constables would supply it to 10 individuals who had been called beforehand through Chotu and Guddu, and receive the payment in cash or online through the same mediums. Also after examining the bank statement of accused Mannu Prajapati's father Kuleshwar Chakdhari's SBI account No.20082496069, it was found that an amount of Rs. 72 thousand was deposited and Rs. 62 thousand was transferred (withdrawn) by accused/applicant Saurabh Nagvanshi. 17. Also taking into consideration the fact that the quantity of contraband article seized from the possession of the co-accused persons i.e. 20 Kgs of Ganja, which is much above the commercial quantity and the applicant and other co-accused person’s names have come into light from the memorandum statement, and the applicant is failed to give any explanation for the same, thus, it could not be a case of false implication, the charge-sheet has been filed in this case, further the bail application of the co-accused has already been rejected by this Court vide order dated 03.01.2025 passed in MCRC No. 8796/2024, and the case-law cited by the learned counsel for the applicant is not applicable in the present case, as the same is distinguishable from the facts and circumstances of the present case. 18. The point which has been raised by the counsel for the applicant that no sanction has been taken for prosecution of the present case from the competent authority under Section 197 CrPC, the 11 learned State counsel has submitted that a question of sanction only arises when a person does an act in discharge of his officials duty, then the sanction is required, whereas in the instant case the applicant and accused persons are the Police Constables and they are indulged in smuggling of Ganja. Moreover, the applicant who is a Police Constable in GRP Police, Bilaspur, with other Police constables had formed an organized team for illegal trading of the contraband article (Ganja) which is evident from the submissions made by the learned State counsel as stated above. The money involved and the call details of the applicant and the co-accused persons goes to show that they have formed a racket for the purpose of an organized crime. When a pointed query was made by this Court from the counsel for the applicant, whether the applicant was part of the any raiding Police team which intercept the drug mafias or he has appeared in NDPS Act cases which were registered as Police witness before the trial Court etc., he could not reply or produce any documentary evidence in that regard and only referred to the newspaper items showing his false implication. Hence, this Court is of the opinion that the applicant is not entitled to be enlarged on bail in the present case. 19. Accordingly, the bail application of applicant – Sourabh Nagwanshi involved in Crime No.117/2024, registered at Police Station – G.R.P., District – Bilaspur (C.G.) for the offences punishable under Section 20(B) and 29 of the NDPS Act, is rejected at this stage. 12 20. Needless to say that the learned trial Court concerned is at liberty to proceed with the trial and conclude the same, expeditiously. 21. The OfÏce is directed to provide a certified copy of this order to the trial Court for necessary information and compliance forthwith. Sd/- (Ramesh Sinha) Chief Justice Rajshekhar