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2006 DIGILAW 1331 (ALL)

NIZAMUDDIN v. UNION OF INDIA

2006-05-09

RAVINDRA SINGH

body2006
RAVINDRA SINGH, J. This is the 2nd bail application filed by the applicant Nizamuddin with a prayer that he may be released on bail in case crime No. 3 of 2004 under Sections 8/21/27-A/29 NDPS Act, P. S. Narcotics Control Bureau, Varanasi. 2. The Criminal Misc. 1st Bail Application No. 21795 of 2004 has been disposed of on 14-11-2005 by this Court as not pressed. 3. The prosecution story, in brief, is that in the present case the F. I. R. has been lodged by Sri Sanjeev Kumar Singh. The alleged arrest and recovery is said to have been made by the officers of Narcotics Control Bureau (in short ncb), Varanasi on 13-4-2004 at about 11. 30 p. m. According to recovery memo the officials of the NCB received information on 13-4-2004 in respect of a transportation of heroin in heavy quantity for the sale purpose, on that information, a team of NCB staff came at Allahabad. At about 1. 30 p. m. a Gama vehicle bearing its registration No. RJ-35-T-0016 was intercepted, after its search, a recovery of 20 kg heroin was made and the accused Kudratullah @ Firoz and Bhairo Lal were arrested, they confessed before the arrested officer that the aforesaid heroin was to be received by the applicant who was present in a Tata Sumo Vehicle, but he managed to escape, after the said discloser. 4. The NCB staff of Varanasi were informed and requested to arrest the applicant on that information the team of the NCB staff, Varanasi arrested the applicant and co-accused Tarak Nath Ghosh and seized the Tata Sumo vehicle. 5. Heard Sri Ravindra Sharma learned Counsel for the applicant and Sri Sanjay Kumar Singh learned Counsel for NCB. 6. It is contended by the learned Counsel for the applicant: (i) That no heroin or any other contraband was recovered from the possession of the applicant. According to the prosecution version itself 20 kg heroin was recovered from the possession of co- accused Kudratullah alias Firoz and Bhairo Lal. (ii) That the name of the applicant has been disclosed by co-accused Kudratullah alias Firoz by alleging that the applicant had to take the delivery of the aforesaid heroin who was in a Tata Sumo vehicle. The applicant was arrested, but nothing incriminating was recovered from his possession or from his seized vehicle. (ii) That the name of the applicant has been disclosed by co-accused Kudratullah alias Firoz by alleging that the applicant had to take the delivery of the aforesaid heroin who was in a Tata Sumo vehicle. The applicant was arrested, but nothing incriminating was recovered from his possession or from his seized vehicle. The only evidence against the applicant is, the confessional statement of co-accused Kudratullah alias Firoz and the statement of the applicant, which was taken in writing by the arresting officer, but the said confessional statement has not been voluntarily made. It has been extorted under threat and coercion, therefore, no reliance can be placed on such statement. The applicant was arrested he was badly beaten and he was given the electric shocks, in order to extort confession. He was medically examined in Varanasi Jail on 16-4-2004. Five injuries were found on his person, which were caused by hard and blunt object. All the injuries were simple in nature and duration was about 1 to 3 days. (iii) That there is no independent witness to support the prosecution story. All the witnesses of arrest are officials of NCB. They are interested in partisan of the witnesses. No reliance can be place on these witnesses. (iv) That the applicant is having no criminal antecedent. There is absolutely no likelihood of his involvement in such type of offence if he is released on bail. (v) That there is no compliance of mandatory provision of NDPS Act. 7. It is opposed by Sri Sanjai Kumar Singh the learned Counsel for the NCB by submitting: (i) That the complaint has been filed under Sections 8/21/27-A and 29 NDPS Act in respect of the incident which had occurred on 14-4-2004 in which 20 kg heroin was recovered from the possession co- accused Kudratullah alias Firoz and Bhairo Lal. (ii) The statement of co-accused Kudratullah alias Firoz, Bhairolal, Ramesh Sharma, Suresh Singh and Baliram Misra were voluntarily recorded on 14-4-2004 under Section 67 of the NDPS Act. According to their statement the applicant is actually involved in the commission of the alleged offence. According to their statement the recovered 20 kg heroin was to be delivered to the applicant. (iii) The statement of the applicant was also voluntarily recorded on 14-4-2004 under Section 67 of the N. D. P. S. Act. It has been recorded in writing and signed by the applicant. According to their statement the recovered 20 kg heroin was to be delivered to the applicant. (iii) The statement of the applicant was also voluntarily recorded on 14-4-2004 under Section 67 of the N. D. P. S. Act. It has been recorded in writing and signed by the applicant. He has confessed his involvement in the commission of the alleged offence. (iv) That voluntarily statement of Subhash Banerjee under Section 67 of the NDPS Act was recorded on 15-4-2004 and voluntarily statement of Tarak Nath Ghosh was recorded under Section 67 of the NDPS Act on 28-4-2004. Apart from the above statements there are large number of other material documents establishing the actual involvement of the applicant in illicit trafficking of heroin. In support of above submissions a case of Union of India v. Ram Samujh & Anr. reported in 1999 (2) JIC 724 (SC) : 1999 (39) ACC page 643, decided by Honble the Apex Court has been cited, in which Honble the Supreme Court has made the following observations: "it is to be born in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be born in the mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effects and deadly impact on the society; they are hazard to the society, even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. " (v) That the contention of the applicant that the confessional statement of the applicant was taken under coercion and he was badly beaten and electric shocks were given to him is absolutely false, because the medical examination report filed by the applicant shows that all the injuries were simple and on the non vital part of the body which may be caused during the course of arrest also. (vi) That it is settled law that statement under Section 67 of the NDPS Act is admissible in evidence and it shall not be hit by 25 of the Indian Evidence Act. Recording of telephonic talk between the applicant and co-accused Kudratullah alias Firoz is also available showing his involvement in illicit trafficking of heroin. (vi) That it is settled law that statement under Section 67 of the NDPS Act is admissible in evidence and it shall not be hit by 25 of the Indian Evidence Act. Recording of telephonic talk between the applicant and co-accused Kudratullah alias Firoz is also available showing his involvement in illicit trafficking of heroin. In the case of State v. Navjot Sandhu, reported in Crl. Law Journal 2005 page 3950, in which it has been held by the Honble Supreme Court that all record relating to several forms are admissible or reliable evidence. In such circumstances the applicant is not entitled for bail. 8. After considering the facts and circumstances of the case, submissions made by the learned Counsel for the applicant and Sri Sanjai Kumar Singh learned Counsel for the NCB and considering the nature of the offence and its gravity and without expressing any opinion on the merits of the case the applicant is not entitled for bail, therefore, the prayer for bail is refused. 9. Accordingly, the bail application is rejected. Application rejected. .