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2002 DIGILAW 523 (PNJ)

Som Nath Alias Somma Ram v. State Of Punjab

2002-05-09

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Petitioner, Som Nath alias Somma Ram, seeks bail in case bearing FIR No. 42 dated 11.4.2000 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) with Police Station City, Nawanshahr. The present case was registered on the statement of Sub Inspector Ram Lubhaiya. On 11.4.2001, he along with ASI Avtar Singh and other police officials was present under the roundabout opposite the office of Deputy Commissioner, Nawanshahr, in a Government Gypsy on patrol duty. At that time, he received a secret information that Biro wife of Tarsem, Dalbiro wife of Jaggi, Chhindo wife of Amrik, Nanju son of Karma and Soma son of Meet Ram were engaged in selling of poppy-husk and were present on the back-side of Guga Jahar Peer near Barnala Chowk and could be apprehended and a large quantity of poppy-husk could be recovered from them. On receipt of this information, SI Ram Lubhaiya immediately proceeded in the Gypsy to the spot and asked the MHC of Police Station through wireless to give the information to the D.S.P. with request to reach the spot. Thereafter, the Police party reached the Guga Jahar Peer and in the moon-light, noticed that on one pile of gunny bags three ladies and two men were sitting. When he switched on the torch-light, one person and a lady ran away towards the North side, but under the light of torch they were identified as Somma and Dalbiro as they were previously known to them. Both Somma and Dalbiro were successful in running away from the spot under the cover of darkness. The other persons, namely, Nanju and two ladies namely Biro and Chhindo were apprehended at the spot. After securing the presence of D.S.P. Raj Kumar, seizure proceedings were conducted. Each bag was found to contain 40 kgs. of poppy-husk. In all, 504 kgs. of poppy-husk was recovered from these bags. 2. After completion of investigation, challan has been put in Court. 3. After securing the presence of D.S.P. Raj Kumar, seizure proceedings were conducted. Each bag was found to contain 40 kgs. of poppy-husk. In all, 504 kgs. of poppy-husk was recovered from these bags. 2. After completion of investigation, challan has been put in Court. 3. Learned counsel representing the petitioner-accused while pressing for his bail has taken several grounds, namely, that there has been non-compliance of mandatory provisions of Sections 42 and 50 of the Act; that no independent witness was associated at the time of seizure proceedings; that the petitioner-accused was not apprehended at the spot and nothing was recovered from his possession; that Dalbiro who was not apprehended at the spot and Biro, Chhindo and Nanju who were apprehended at the spot, have been extended the benefit of bail by this Court. Dalbiro has been granted bail vide order dated 31.7.2001 passed by Honble Mr. Justice K.C. Gupta in Cr. Misc. No. 16638-M of 2001 while Chhindo has been granted bail vide order dated 16.10.2001 passed by Honble Mr. Justice K.C. Gupta in Cr. Misc. No. 26777-M of 2001 and that the case of the petitionr is on same footing as the case of above-named accused; that the name of the petitioner-accused does not find mention in the report lodged and his presence at the place of recovery is not established. 4. Opposing the submissions made, it has been strenuously urged by the State counsel that identity of the petitioner-accused was clearly established at the time of the commission of crime, in the report lodged his name has been mentioned as Soma and the petitioner has described himself as Som Nath @ Somma Ram in the petition. It was further stated that merely because petitioner- accused was successful in running away from the spot, does not in any manner indicate that he was not found in possession of bags containing poppy-husk along with other accused. It was also submitted that the other ground taken by the petitioner with regard to non-compliance of Sections 42 and 50 of the Act, as such, cannot be made the basis to grant concession of bail to the petitioner-accused. It was also submitted that the other ground taken by the petitioner with regard to non-compliance of Sections 42 and 50 of the Act, as such, cannot be made the basis to grant concession of bail to the petitioner-accused. With regard to grant of bail to the other co-accused, it was pointed out by the State counsel that the observations made by the Apex Court in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 Supreme Court Cases (Crl.) 648, were not brought to the notice of the Court and the mandate of law laid down as such cannot be ignored. 5. The position of law with regard to grant of bail has been settled by the Apex Court in Supdt., Narcotics Control Bureau, Chennais case (supra), wherein the respondent and his wife were prosecuted under Sections 8-C, 21, 27-A, 28 and 29 of the Act and Sections 193 and 120-B of the I.P.C. The High Court had granted bail on the ground of non-compliance of the formalities of Sections 52 and 57 of the Act but Honble the Supreme Court had observed that having regard to provisions of Sections 52 and 57 of the Act but Honble the Supreme Court had observed that having regard to provisions of Section 37 of the Act, it would be too early at the stage of bail to take into account and judge the matter regarding non-compliance with the formalities. It was further laid down that recording of findings in terms of Section 37 of the Act is a sine qua non for granting bail to the accused involved in commission of the offence under the Act. 6. In State of Madhya Pradesh v. Kajad, 2001(4) RCR(Crl.) 219, bail to the petitioner therein was earlier rejected by the High Court but subsequently it was allowed in violation of mandatory provisions of Section 37 of the Act and the same was set aside by the Apex Court. It was observed as under :- "The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant (an ?) and exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for." 7. During the pendency of these proceedings amendment has been made in the Act by Narcotic Drugs and Psychotropic Substance (Amendment) Act, 2001 which has been made applicable with effect from 2.10.2001. In terms of notification dated 19.10.2001 issued by the Central Government, recovery of 14 bags each containing about 40 kgs. of poppy-husk by the police from the possession of the petitioner and the co-accused has to be construed as commercial quantity. The prayer for bail of the petitioner-accused has to be considered in the light of the limitation laid down in Section 37 of the Act. The fetters provided in Section 37 of the Act as such cannot be ignored on the ground that there has been non-compliance with the provisions of Section 50 of the Act regarding non-joining of the independent witnesses at the time of recovery. It would be pre-mature to do so for the purpose of deciding the present application. 8. Coming to the other submission made with regard to non-compliance of provisions of Section 42 of the Act, it is manifest from the record that on the basis of secret information received by the Investigating Officer, he had to rush to the spot otherwise there was every possibility of the accused making good their escape. 8. Coming to the other submission made with regard to non-compliance of provisions of Section 42 of the Act, it is manifest from the record that on the basis of secret information received by the Investigating Officer, he had to rush to the spot otherwise there was every possibility of the accused making good their escape. While construing the provisions of Section 42 of the ACt, it cannot be ignored that the petitioner-accused was involved in the trade of sale of poppy-husk and even for the purpose of bail, the factual position cannot be ignored. In the present case, petitioner-accused had been successful in running away from the spot on seeing the police party so as to avoid his arrest and thus, concession of bail cannot be granted to him. There is considerable merit in the stand taken by the State counsel that when the bail applications of other co-accused of the petitioner were decided, the observations made in Suptd. Narcotics Control Bureau Chennais case (supra) were not brought to the notice of the Court. For the aforesaid reasons, there is no merit in the petition and the same is consequently dismissed.