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2010 DIGILAW 951 (ALL)

Kabir Ali v. State of U. P. & Anr.

2010-03-19

ASHOK SRIVASTAVA

body2010
Ashok Srivastava, J.;- This bail application has been moved on behalf of the applicant Kabir Ali, who is involved in Case Crime No.9 of 2008 under sections 8/21/27-A/29 of NDPS Act, P.S. N.C.B., District Lucknow. 2. The facts of the case in brief are as follows:- 3. On a tip off given to the officers of the Narcotic Control Bureau(NCB),Lucknow,a vehicle was intercepted by them on 24.7.2008 at Mohan Sarai by-pass, a place situated in the district of Varanasi. Two persons namely Rajiv Kumar and Bhim Singh @ Bapu Bhai were arrested by the said officers. The detainees were carrying with them some 4 kg. Of illicit heroin. An arrest and recovery memo was prepared at the spot and the enquiry in the matter proceeded. During the course of enquiry the name of one Manas Dutta @ Dada came to light who was also interrogated by the officers of NCB. On further enquiry the names of Smt. Sushila Chauhan and Ayodhya Chauhan @ Lalli Chauhan also came to light. Thereafter on 18.7.2009 the officers of Bureau raided the residential house of Smt.Sushila Chauhan and her husband Ayodhya Chauhan @ Lalli Chauhan. 8.3 kg. of heroin and certain amount of Acetic Anhydride were recovered. The enquiry further proceeded and during the course of such enquiry the name of the applicant came to light. On 17.9.2009 the officers of the Bureau detained the applicant Kabir Ali alongwith another person Jamal Husain at Dum Dum Airport, Kolkatta. The officers of the Bureau disclosed their identity to the applicant and after observing necessary formalities a search was conducted but nothing illegal or illicit material was recovered from the possession of the applicant and his companion. Thereafter both the applicant and his companion Jamal Husain were served with a notice under section 67 of the N.D.P.S. Act and they were required to attend the office of the Bureau at Lucknow the next day. In pursuance of the said notice the applicant appeared before the officers of the Bureau at Lucknow and his statement was recorded in part. On 21.9.2010 the applicant again appeared before the Bureau and his statement under section 67 of the N.D.P.S. Act was concluded. As per allegations he had made certain confessional statements before the N.C.B. 4. In pursuance of the said notice the applicant appeared before the officers of the Bureau at Lucknow and his statement was recorded in part. On 21.9.2010 the applicant again appeared before the Bureau and his statement under section 67 of the N.D.P.S. Act was concluded. As per allegations he had made certain confessional statements before the N.C.B. 4. Thereafter on the basis of his confessional statement he was detained and after producing him before the court concerned he was lodged in the district jail Varanasi. 5. The applicant moved a bail application before the learned Additional Sessions Judge, Varanasi, Court No.2. The bail application was heard and rejected by the learned lower court. 6. It has been submitted from the side of the applicant that he is in jail since 22.9.2009, that the applicant has not given any statement to the officers of NCB under section 67 of the NDPS Act, that the statement said to have been given voluntarily by the applicant was obtained by the officers of the Bureau under pressure and threat. It has further been submitted from the side of the applicant that he was totally unaware regarding the recovery of 8.3 kg. heroin said to have been recovered at two different places and from two different persons, that in the instant case the provisions of Section 67 of the NDPS Act do not apply. In these set of circumstances the bail application has been pressed. 7. The bail application has been vehemently opposed by the learned counsel appearing for NCB. 8. I have heard learned counsel for the parties and perused the records. 9. The NDPS Act is a special Act. Section 37 of the Act deals with the bail to the persons accused of offences punishable under the said Act. Section 37 of the NDPS Act as substituted by Act 2 of 1989 with effect from 29.5.1989 and with further amendment by Act of 2001 reads as follows:- ?37. 9. The NDPS Act is a special Act. Section 37 of the Act deals with the bail to the persons accused of offences punishable under the said Act. Section 37 of the NDPS Act as substituted by Act 2 of 1989 with effect from 29.5.1989 and with further amendment by Act of 2001 reads as follows:- ?37. Offneces to be cognizable and non-bailable:-(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1074), or any other law for the time being in force on granting of bail.? 10. It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offecne under the NDPS Act is not only subject to the limitations imposed under Section 439 of he Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail,have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on ?reasonable grounds?. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on ?reasonable grounds?. The expression 'reasonable ground' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India Vs. Shiv Shanker Kesari, reported in 2007 (7) SCC 798 . Thus recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 11. It appears necessary to add here that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s)he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. 12. In the instant case the statement of the applicant has been recorded by the officers of NCB who are not the police officers within the meaning of Section 25 of the Evidence Act, 1872. The confessional statements recorded by such officers are admissible in evidence. Learned counsel for the applicant though, did not question on the admissibility of the said statements contended that the same were obtained by torture and harassment and are not voluntary and therefore detention of the applicant in jail and refusing his bail is not sustainable. 13. In the above background this Court has to consider the facts mentioned in the recovery memo and the statements recorded under section 67 of the NDPS Act. 14. 13. In the above background this Court has to consider the facts mentioned in the recovery memo and the statements recorded under section 67 of the NDPS Act. 14. In the instant case from the very beginning it has been stated by the side of the Bureau that the statement of the applicant was voluntary. It has been submitted from the side of the Bureau that the applicant was detained by the officers of the Bureau on 17.9.2009 and he was served with the summons under Section 67 of the NDPS Act to appear and depose before the officers of the Bureau on 18.9.2009. It has further been submitted that in pursuance of the summons the applicant appeared before the officers on 18.2.2009 and his part statement was recorded as he was not feeling well on that date and was exhausted. On that date he was allowed to go and rest of his statement was recorded on 21.9.2009. It has been vehemently contended from the side of the Bureau that no torture or threat was given to the applicant and his statement under Section 67 of the NDPS Act was totally voluntary. It has further been submitted that the applicant did not make any complaint before the learned Special Judge concerned at Varanasi regarding any maltreatment when he was produced before him for the first time. In this background it has been contended that at this stage, after getting a legal advice the allegation of maltreatment or torture or harassment can not be given any importance as it was all after thought. 15. After hearing both the learned counsel for the parties I am of the view that at present there is nothing on record which may indicate that the statement given by the applicant under Section 67 of the NDPS Act before the officers of the Bureau was obtained by torturing or harassing him. It will be for the trial court to see at the appropriate stage. 16. The confessional statement recorded by the officer of the NCB in the course of investigation of a person accused of an offence under the NDPS Act is admissible in evidence against him. At present there is nothing on record to suggest that the applicant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon. At present there is nothing on record to suggest that the applicant was compelled under threat to make the statement after he had been placed under arrest which renders such statement inadmissible and not capable of being relied upon. It has been held by this Court and also by the Apex Court in so many cases that an officer of the NCB, for the purpose of Section 67 of the NDPS Act read with Section 42 thereof is not a police officer and therefore the bar under sections 24 to 27 of the Evidence Act can not be attracted. Such a statement can be relied upon by the Court. 17. On the basis of the above discussions I am of the view that the applicant is not entitled to be released on bail and therefore his bail application is rejected.