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2006 DIGILAW 1163 (RAJ)

Union of India v. Krishan Chandra Agrawal

2006-04-12

KHEM CHAND SHARMA

body2006
Honble SHARMA, J.–Through this application under Section 439(2) Cr.P.C. read with Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as ``the Act), the Union of India has prayed for setting aside/cancellation of bail order dated 7.6.2005 passed by the learned Special Judge, NDPS Cases, Jaipur, by which the learned Judge has extended the benefit of the provisions of Sec. 439 Cr.P.C. to respondent Krishan Chandra Agrawal against whom a complaint under Sections 8(c), 22 and 29 of the Act was filed. (2). The allegation against respondent Krishna Chandra Agrawal was that in the course of search of his house No. 274, AWHO Colony, Ambabadi, Jaipur, four cartoons of medicines containing huge quantity of Alprozolam, Diazepam and Zolpidem tablet were recovered. (3). Having gone through the order dated 7.6.2005 passed by the learned Special Judge, it appears that the learned Judge extended the benefit of bail to the accused respondent after recording his satisfaction that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The reason behind such satisfaction appears to be the non-availability of evidence of ownership of respondent Krishan Chandra Agrawal over House No. 274 from where drugs were recovered and lack of knowledge of respondent regarding business of Jaya Enterprises, whose Proprietor was his son Yatindra. That apart, further reason which prevailed with the learned Special Judge in recording his satisfaction while granting bail was that respondent was a resident of Bharatpur where he was carrying on his own business and in the course of search of his house at Bharatpur nothing incriminating was found from there. (4). Learned Public Prosecutor representing the Union of India has strenuously argued that Section 37 of the Act puts limitations on grant of bail. According to him, since prima facie case was made out against the accused respondent by recovery of psychotropic substances from his house and further by his own statement under Sec. 67 of the Act, therefore, extending the benefit of Sec. 439 Cr.P.C. in favour of accused respondent was highly uncalled for in view of the limitations placed by Section 37 of the Act. To strengthen his argument, learned Public Prosecutor has relied upon Customs, New Delhi vs. Ahmadalieva Nodira ( 2004 (2) Supreme 419 ) = (RLW 2004(3) SC 375); Narcotic Control Bureau vs. Dilip Pralhad Namade ( 2004 (2) Supreme 456 ); and M. Prabhulal vs. Assistant Director, Directorate for Revenue Intelligence (2003) 8 S.C.C. 449. (5). On the other hand, learned counsel appearing for the accused respondent contended with vehemence that the licencing authority under the Drugs and Cosmatics Act and Rules issued four licences in the name of M/s Jaya Enterprises under the sole Proprietorship of Yatindra Kumar Agrawal, thereby authorising the firm to sell, stock of exhibit (or offer) for sale or distribute drugs by retail and wholesale specified in Schedule C and C (1) only excluding those specified in Schedule X. Learned counsel contended that the drugs alleged to have been seized neither fall in the list specified in Schedule `X nor listed in Schedule 1 attached to the Rules framed under the Act. Therefore, prohibition qua possession as contained in Rule 64 of the NDPS Rules does not apply. Thus, it being schedule `H only, the drug would fall within the rigorous of Drugs and Cosmetic Act and the Rules. (6). Learned counsel for the respondent next contended that the officials of the NCB forced the accused to sign on blank papers and this fact was brought to the notice of the Trial Court on first available opportunity when he was produced in court for remand. Therefore, the so-called statement of respondent under Section 67 of the Act cannot be read against him. (7). Lastly, it was contended that the accused respondent was neither owner nor in possession of the house in question from where the drugs were alleged to be recovered and seized. (8). In support of his above arguments, learned counsel for the respondent has relied upon Raginder Gupta vs. State (123 (2005) Delhi Law Times 55); Sarija Banu alias Janarthani alias Janani and Another vs. State through Inspector of Police (2004) 12 SCC 266 and Samarendra Nath Bhattacharjee vs. State of W.B. and Another ( 2004 11 SCC 165 ). (9). I have given my anxious consideration to the rival submissions. Needless to state that since factual issues are yet to be decided, any finding thereon would not be warranted while deciding this petition. (9). I have given my anxious consideration to the rival submissions. Needless to state that since factual issues are yet to be decided, any finding thereon would not be warranted while deciding this petition. Rejection of bail in non-bailable offence and cancellation of bail already granted has to be considered and dealt with on different basis. It is well settled that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Be that as it may, in the case at hand, there is no documentary evidence to support the fact of ownership and possession of accused respondent over the house in question from where the drugs were seized. Further, no incriminating article was recovered from the house of the accused respondent, situated in Bharatpur. That apart, Yatindra Kumar Gupta is the sole Proprietor of M/s Jaya Enterprises, in whose favour Drugs Licences, as stated above, were issued, with which the accused respondent has nothing to do. It may also be noted that accused in his statement under Sec. 67 of the Act, in reply to a question as to ``what is his role (Aap ki kya Bhumika Hai) in Jaya Enterprises, replied that he used to maintain the accounts of the firm. In these circumstances, the discretion excised by the learned Special Judge in favour of respondent in granting bail cannot be said to be bad in law, more particularly when the learned Judge has recorded his satisfaction as envisaged in Section 37 of the Act. (10). It may be reiterated that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail. No grounds for cancellation of bail, much less overwhelming circumstances viz., interference with the due course of administration of justice or abuse of concession granted to the accused in may manner, possibility of the accused absconding have been taken, except the restrictions placed in Section 37 of the Act in granting bail. In my considered view, the bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail, already granted. In my considered view, the bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail, already granted. In the case at hand, the order dated 7.6.2006 granting bail under Section 439 Cr.P.C., in my considered view, is based on the material placed on record, which calls for no interference. (11). Resultantly, this petition for cancellation of bail has no merit and is hereby dismissed.