Ankur Chaudhary Vs State of Madhya Pradesh (Madhya Pradesh High Court)
Summary: The Madhya Pradesh High Court, Indore Bench, dismissed the third bail application filed by Ankur Chaudhary under Section 439 of the Code of Criminal Procedure, 1973, in connection with Crime No. 305/2022 registered at Police Station Chandan Nagar, District Indore, for alleged offences under Sections 8, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The applicant had been in custody since 29 April 2022. He sought bail principally on the grounds that the two panch witnesses examined during trial had not supported the prosecution and that the trial was progressing slowly. The High Court nevertheless held that no sufficient material change in circumstances justified reconsideration of the earlier bail rejections.
According to the prosecution, the case originated from alleged seizures of Alprazolam powder on 2 April 2022. The authorities initially recovered 15 grams from Kartik and one kilogram from Mohammad Arif near Dhar Road Dargah and Sirpurkar Talab. Following disclosures allegedly made by those persons, further seizures were attributed to Ajay, Komal and Dinesh. The prosecution stated that 50 kilograms each had been recovered from Ajay and Dinesh and 50.8 kilograms from Komal, bringing the stated total to 151.8 kilograms. Investigators alleged that the substance had been manufactured in a factory owned by the applicant and that he had destroyed material evidence. These allegations formed the basis of the criminal proceedings against him.
The applicant denied the allegations and contended that he had been falsely implicated on the strength of statements made by co-accused persons. His counsel submitted that the earlier Supreme Court proceedings had permitted him to renew his bail request after the examination of the panch witnesses. Subsequently, PW-3 Sunderpal Verma and PW-4 Vinod Rathore were examined, but both allegedly turned hostile and failed to support the prosecution. The applicant further argued that only five of the 75 prosecution witnesses had been examined, that the seized material had not been proved to be contraband as alleged, and that completion of the trial was likely to take considerable time. He therefore sought release on appropriate conditions.
The State opposed the application, pointing out that the applicant’s earlier bail applications had been rejected on merits. It also argued that the Investigating Officer, Lovekush Prasad, could be regarded as a panch witness and had not yet been examined. According to the prosecution, examination of the two other witnesses did not constitute a sufficient change in circumstances to justify bail. The State therefore requested dismissal of the third application.
Justice Anil Verma considered the gravity of the allegations, the quantity of contraband alleged to have been seized, the statutory restrictions under Section 37 of the NDPS Act, and the allegation that the applicant had destroyed material evidence. The Court also referred to the earlier rejection of bail applications and the previous Supreme Court proceedings. It accepted the State’s position that the Investigating Officer was also a panch witness whose examination remained pending. On that basis, the Court concluded that the circumstances had not materially changed and dismissed the third bail application on merits.
Subsequent Supreme Court Development: The High Court’s order dated 2 January 2024 was subsequently challenged before the Supreme Court in SLP (Crl.) No. 4648/2024. On 28 May 2024, the Supreme Court granted bail after considering the petitioner’s custody exceeding two years and the fact that the examined panch witnesses had not supported the prosecution. The Supreme Court declined, on the facts, to regard the Investigating Officer as a panch witness and emphasised that prolonged incarceration caused by failure to complete trial within a reasonable time may justify conditional liberty notwithstanding the restrictions under Section 37(1)(b) of the NDPS Act. Accordingly, the High Court’s refusal of bail must be read in light of the subsequent Supreme Court order.
Cases Discussed
- Ankur Chaudhary v. State of Madhya Pradesh, SLP (Crl.) No. 5271/2023 (Supreme Court of India) — Earlier bail proceedings referred to in the High Court order. The source records a prior rejection of bail and liberty to renew the request after examination of panch witnesses. The High Court mentions 20 March 2023 in paragraph 5, while the subsequent Supreme Court order refers to 15 May 2023. The dates require reconciliation against the original earlier Supreme Court orders.
FULL TEXT OF THE JUDGMENT/ORDER OF MADHYA PRADESH HIGH COURT
This is the third bail application under Section 439 of the Code of Criminal Procedure, 1973 filed on behalf of the applicant for grant of bail. The applicant is in custody since 29/04/2022 in connection with Crime No.305/2022 registered at Police Station – Chandan Nagar, District Indore (M.P.) for commission of offence punishable under Section 8 r/w 22 and 29 of N.D.P.S. Act, 1985.
2. As per prosecution story, on 02/04/2022 the respondent acting on the basis of the information received, allegedly checked and seized 15 grams of Alprazolam Powder from illegal possession one Kartik and 1 Kg of the same from Mohammad Arif, nearby Dhar Road Dargah, near Sirpurkar Talab at around 2 pm. In their memorandum taken under section 27 of the Indian Evidence Act, 1972 allegedly the aforementioned accused persons told that they bought the substance from Ajay, Komal and Dinesh and allegedly 50 Kg each of the Alprazolam. Powder were seized from Ajay and Dinesh and 50.8 kg from the possession of Komal and along with the contraband preparatory utilities were seized from their possession amounting to a total of 151.8 Kg of Alprazolam powder. During the investigation it is gathered that the seized contraband was manufactured in the factory owned by the present applicant and he has destroyed the evidence. Accordingly, offence has been registered against the applicant.
3. Learned counsel for the applicant contended that the applicant is an innocent person and he has been falsely implicated in this offence. He is in custody since 29/04/2022. His two bail applications have been rejected by this Court on merits on earlier occasions. Thereafter, he filed Special Leave to Appeal (Criminal) before Hon’ble Apex Court and the same has been rejected with a liberty to renew the prayer before trial court after examination of Panch witnesses. Later on, both the Panch witnesses – Sunderpal Verma PW-3 and Vinod Rathore PW-4 have been examined before the trial court and both of them have turned hostile and not supported the case of the prosecution. Prosecution has also failed to prove that the seized materials are contraband defined under N.D.P.S. Act. Applicant is implicated only on the basis of confessional statement made by other co-accused persons. The applicant has already suffered jail incarceration for more than 1 year and 9 months and out of 75 prosecution witnesses, only 5 witnesses have been examined yet by the trial court and final conclusion of trial is likely to take sufficient long time. Under the above circumstances, prayer for grant of bail may be considered on such terms and conditions, as this Court deems fit and proper.
4. Per contra, learned counsel for the respondent/State opposed the prayer by submitting that this Court vide orders dated 09.11.2022 and 20.03.2023 has dismissed earlier two applications on merits filed by applicants after considering all the facts and circumstances of the case. The orders passed by this Court have also been affirmed by Hon’ble Apex Court. Although, two Panch witnesses have been examined but Lovekush Prasad, investigating officer is yet to be examined. There are no material changes in the circumstances for which applicant may be considered for grant of bail, hence, it is prayed that present 3rd application of the applicant be rejected.
5. Considering all the facts and circumstances of the case and also the nature and gravity of the allegation and also taking note of the fact that in the present case, seized quantity of the contraband is more than the commercial quantity and there is specific bar under Section 37 of NDPS Act and also considering the allegation levelled against the applicant that he has destroyed the material evidence regarding the aforesaid crime and his two applications on earlier occasions have been rejected on merits by this Court and later on, SLP (Criminal) No.5271/2023 filed before the Apex Court has also been dismissed vide order dated 20.03.2023 by stating that applicant is not entitled for grant of bail at this stage. Although, 2 panch witnesses have been examined but, investigating officer is also Panch witness and he has not been examined yet, therefore, in view of the aforesaid, in the considered opinion of this Court, there are no material changes in the circumstances in which applicant may be entitled for grant of bail. Accordingly, this repeated 3rd bail application under Section 439 of Cr.P.C. is hereby dismissed on merits.
