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2012 DIGILAW 1411 (RAJ)

Arjun Ram v. State of Rajasthan

2012-05-30

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant application under Section 438 Cr.P.C. has been preferred on behalf of the petitioner seeking pre-arrest bail in connection with F.I.R. No. 173/2011 registered at Police Station Kapasan, District Chittorgarh. 2. Succinctly stated the facts of the case are that the SHO, Police Station, Kapasan is said to have received an information on 10.4.2011 at 2.15 a.m. regarding the transit of illicit poppy straw in an Ambassador Car bearing No. RJ27-1c-5573. A blockade was laid and it is said that a car was seen coming from the Sejgariya Dhamana gravel road at about 3.30 a.m. Some material was seen tied on the carrier of the vehicle, and the number of the car was same for which information was received by the S.H.O. The car was flagged down on which the driver of the car stopped the same about 25 ft. before the Nakabandi and 5 persons ran out from the car. The driver could not escape and was apprehended whilst the four other accused persons managed to make good their escape. The driver disclosed his name to be Ashraf Mohd., and on an enquiry, he disclosed that the persons, who had run away, were Arjun Ram S/o Bhakar Ram Devasi, Sumer Singh @ Pradeep Singh, Bharat Singh and Prabhu Lal. Upon a search of the vehicle being taken, hessian bags were found inside the dickey of the car as well as on carrier thereof. A total of 8 bags containing 205 kgs of contraband poppy straw were recovered from the vehicle. 3. In pursuance to the seizure, the F.I.R. mentioned above was registered at Police Station Kapasan, District Chittorgarh. 4. The accused Ashraf Mohd. gave an information to the seizure officer regarding the petitioner being involved in the offence and regarding his having escaped from the vehicle at the time of the seizure. This fact was mentioned in the seizure memo itself. On the basis of the information given by the accused Ashraf Mohd., the Police sought the petitioner's arrest as he was found involved in the conspiracy for procuring poppy straw weighing in excess of the commercial quantity. For about a period of one year, the petitioner managed to avoid arrest in the case and ultimately, the Investigating Officer filed a charge-sheet against Ashraf Mohd. and Bharat Singh whilst keeping the investigation pending qua the petitioner. 5. For about a period of one year, the petitioner managed to avoid arrest in the case and ultimately, the Investigating Officer filed a charge-sheet against Ashraf Mohd. and Bharat Singh whilst keeping the investigation pending qua the petitioner. 5. On the basis of the information given by the co-accused Ashraf Mohd. under Section 27 of the Indian Evidence Act, petitioner's house was identified, that is to say, the information given by the co-accused Ashraf Mohd. at the time of the seizure has been corroborated by the discovery of the petitioner's house. 6. The petitioner applied for grant of pre-arrest bail to the learned Court of Special Judge, NDPS Cases, Chittorgarh and the application so filed by the petitioner has been rejected by the learned Special Judge, NDPS Cases, Chittorgarh by order dated 24.4.2012. Hence, the instant bail application has been moved by the petitioner, seeking a direction for being released on pre-arrest bail in connection with the F.I.R. No.173/2011. 7. Learned counsel for the petitioner Shri H.S. Balot submits that in this case, the co-accused Balveer Singh @ Ballu Singh @ Balwant singh also approached this Court for grant of anticipatory bail and the bail application filed by him, being S.B. Criminal Misc. Bail Application No. 608/2012, has been accepted by this Court vide order dated 24.2.2012. he, therefore, submits that the petitioner's case, is on exactly the same footing as that of the co-accused Balwant Singh, and therefore, the petitioner also deserves to be granted indulgence of anticipatory bail in this case. 8. Learned Public Prosecutor on the other hand, opposed bail application and submitted that the petitioner's case is distinguishable from that of the co-accused Balwant Singh. He submits that the specific case of the prosecution against the petitioner is that he made good his escape from the vehicle from which the poppy straw was recovered. The co-accused Ashraf Mohd., who was arrested on the spot, immediately made a disclosure about the petitioner being present in the vehicle and thereafter, the petitioner's house has been identified in pursuance to the information tendered by the co-accused Ashraf Mohd. to the Investigating Officer under Section 27 of the Indian Evidence Act. Likewise, the co-accused Bharat Singh has also implicated the petitioner in his information given to the Investigating Officer. to the Investigating Officer under Section 27 of the Indian Evidence Act. Likewise, the co-accused Bharat Singh has also implicated the petitioner in his information given to the Investigating Officer. Learned Public Prosecutor submits that still the investigation is pending against the petitioner and thus there is every likelihood of further incriminating material/evidence being discovered upon the custodial investigation of the petitioner. He submits that the petitioner's arrest is required by the Investigating Officer for his custodial investigation. He further submits that from the material as it exists on the record against the petitioner, this court is precluded from arriving at a reasonable satisfaction that the petitioner is not guilty of the offences involving narcotics in excess of the commercial quantity. He, therefore, submits that by virtue of the restrictions contained in Sec. 37 of the NDPS Act, the petitioner is not entitled to be released on anticipatory bail. 9. Having considered the arguments advanced at the bar and after having gone through the material available on record, it is evident that the petitioner's case is totally distinguishable from the case of the co-accused Balveer Singh @ Ballu Singh @ Balwant Singh, whose application for anticipatory bail has been accepted by this Court. For the purpose of exercising powers of grant of bail in relation to the accused, who are charged with the offence of being involved in dealing with narcotics drugs in excess of commercial quantity, the restrictions provided in Section 37 of the NDPS Act apply before the Court can accept the application. 10. In a case, where Public Prosecutor opposes the bail application, the Court has to record a satisfaction that there are reasonable grounds for believing that the accused seeking bail is not guilty of the offences. 11. In the opinion of this Court, when the accused has not even been arrested and since the investigation is yet to be carried out from him, it would neither be possible nor justifiable for this Court to hold at this stage that the accused is not guilty of the offences punishable under Sections 8/15 and 8/29 of the NDPS Act. Admittedly, the contraband involved is poppy straw weighing 205 kgs., which is a commercial quantity. 12. The Hon'ble Apex Court whilst considering the aspect of grant of bail in reference to mandatory provisions of Section 37 of the Act in the cases of N.R. Mon vs. Md. Admittedly, the contraband involved is poppy straw weighing 205 kgs., which is a commercial quantity. 12. The Hon'ble Apex Court whilst considering the aspect of grant of bail in reference to mandatory provisions of Section 37 of the Act in the cases of N.R. Mon vs. Md. Nasimuddin reported in AIR 2008 Supreme Court 2576 and Rattan Mallik @ Habul vs. Union of India reported in AIR 2009 SC (Supp) 1567, held as below : (A) In case of N.R. Mon vs. Md. Nasimuddin, Hon'ble the Apex Court held as under : "Challenge in this appeal is to the judgment of the learned Single Judge of the Gauhati High Court, Imphal Bench, upholding the order passed by the learned Special Judge, NDPS, Manipur, Imphal, in Cri. Complaint Case No. 32 of 2000, by which bail was granted to the respondent. 2. Background facts in a nutshell are as follows : On 17.1.2000 the appellant received information in writing from a casual source that a Tata truck bearing registration No. MN-5113 carrying Ganja would be proceeding from Imphal area towards Guwahati in the early hours of 18.1.2000. It as immediately reported by the appellant to its superior officer i.e. Superintendent, NCB, RU, Imphal, who issued order to the appellant to take necessary action. The appellant along with other members of staff of the NCB led by the Superintendent kept vigil along the Imphal-Ukhrul road and started checking of vehicles. Around 7.00 a.m. on 18.1.2000 a Tata truck was seen approaching the road. The said vehicle was intercepted and stopped by the appellant. The vehicle was occupied by a driver (the respondent herein) and one Purna Bahadur Handyman. The vehicle, the accused and the handyman were brought to the Revenue complex for a thorough checking. After following procedure laid down under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act'), the respondent and the driver were asked whether they would like to be taken before the Magistrate or the Gazetted Officer. During search 6 packets of Ganja in pressed form, from a special constructed chamber in the fuel tank were recovered. On weighing, the same was found to be 163 kgs. in total. The representative samples were taken and sent for analysis by the Chemical Examiner of the Government of Assam, at the State Forensic Science Laboratory in Guwahati. During search 6 packets of Ganja in pressed form, from a special constructed chamber in the fuel tank were recovered. On weighing, the same was found to be 163 kgs. in total. The representative samples were taken and sent for analysis by the Chemical Examiner of the Government of Assam, at the State Forensic Science Laboratory in Guwahati. The voluntary statement of the respondent was recorded in the present of the witnesses on 18.1.2000. The respondent was put on arrest under Section 43(a) of the Act and case was registered for offence in relation to possession punishable under Sections 20, 29 and 60 of the Act. The Forensic Science Laboratory report was to the effect that the sample was Ganja. On 4.3.2000 an application for bail was filed before the learned Special Judge, NDPS, Manipur, Imphal, under Section 437 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') and Section 37(b)(ii) of the said Act. But without taking note of Section 37 of the Act, bail was granted. The same was challenged before the High Court. By the impugned order, the same was rejected. The High Court noted that attendance of the accused can be secured by means of bail bonds already signed. He may be allowed the respondent to remain on bail in order to enable him to have adequate consultation with the lawyer of his choice. 3. Learned counsel for the appellant submitted that the parameters of Section 37 have not been kept in view by the trial Court and High Court. Learned counsel for the respondent supported the order. 4. Section 37 of the Act reads as follows : "37. Offences 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 (offences under Section 19 or Section 24 of 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 the 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 1974), or any other law for the time being in force on granting of bail." 5. As rightly contended by learned counsel for the appellant, the effect of Section 37 has not been noticed by either the trial Court or the High Court. The position relating to grant of bail in the background of Section 37 of the Act has been considered by this Court in several cases. 6. In Union of India vs. Gurcharan Singh (2003(11) SCC 764), it was noted as follows: "5. On a bare perusal of the impugned order of the High Court, we are satisfied that the High Court has not borne in mind the provisions of Section 37 of the Act before releasing the accused-respondent on bail. We, therefore, set aside the order and allow this appeal. We direct that the trial be concluded expeditiously." 7. In Public Prosecutor of Customs, New Delhi vs. Ahmadalieva Nodira ( 2004(3) SCC 549 ) it was noted at page 552 as follows : "6. As observed by this Court in Union of India vs. Thamsisharasi, Clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the code. The two limitations are : (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. 7. The limitation on granting of bail come is only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are : the satisfaction of the Court that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. 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 grounds" means something more than prima facie grounds. 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 grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37. 8. In Union of India vs. Abdulla ( 2004(13) SCC 504 ) it was noted as follows: "5. The respondent herein was charged of the offences punishable under Sections 8/21/29/60 of the Narcotic Drugs and Psychotropic substances Act, 1985 before the Court of Special Judge, Lucknow. His application for grant of bail was rejected by he Special Judge by assigning reasons therefor. Further application being made to the High Court of Judicature at Allahabad, the High Court without considering the mandatory requirement of Section 37 of the Act and without coming to the prima facie conclusion that there was no material against the respondent to convict him for the charges alleged against him mechanically proceeded to grant the bail. This Court in the case of Supdt. Narcotics Control Bureau vs. R. Paulsamy, (2000) 9 SCC 549 , has held that in matters arising out of the Narcotic Drugs and Psychotropic Substances Act grant of bail is controlled by Section 37 of the Act and it is mandatory for the Court to hear the Public Prosecutor and come to the prima facie conclusion that there is no material to come to the conclusion that the accused could be held guilty of the charges leveled against him. Since such a conclusion is not recorded by the High Court and is not supported by reasons we think the impugned order cannot be sustained." 9. In Narcotics Control, Bureau vs. Karma Phuntsok and Ors. ( 2005(12) SCC 480 ) it was noted as follow : "4. The respondents were convicted under Section 29 read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000. In Narcotics Control, Bureau vs. Karma Phuntsok and Ors. ( 2005(12) SCC 480 ) it was noted as follow : "4. The respondents were convicted under Section 29 read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000. On appeals being filed, the learned Judge suspended the sentence and the respondents were enlarged on bail on executing a personal bond for a sum of Rs. 50,000 with one surety for the like amount, to the satisfaction of the trial Court. We have perused the order passed by the learned Judge and we find that there is not even a whisper about the condition contained in Section 37 of the NDPS Act with regard to enlarging of the accused on bail. Mr. Jaspal Singh, learned Senior Counsel appearing for the respondents contended that the learned Senior Counsel appearing for the respondents contended that the learned Public Prosecutor did not oppose the bail as contained in Section 37(1)(b)(ii) of the NDPS Act. According to him, unless the Public Prosecutor opposes the bail application, Section 37 will not apply. Mr. Singh seriously contended that inasmuch as the appellant have not put on record that the Public Prosecutor had opposed the granting of bail it must be presumed that this is an order covered under Section 37(3) read with Section 439, Cr.P.C. to say the least, the argument appears to be baseless. We cannot accept the contention that in a matter involving seizure of commercial quantity of a substance prohibited by the NDPS Act when the Public Prosecutor appears on notice of he bail application he would be standing there as a mute spectator not opposing the bail application unless he was at the back of the accused. We find no substance in this agreement. In our view, the very fact that the Public Prosecutor appeared would suggest that he appeared to oppose the bal application. In any event, the order of the High Court does not suggest that the Public Prosecutor had agreed for bail being granted. In the aforesaid circumstances, we find no substance whatsoever in the contention raised by Mr. Singh." 10. Since the trial Court and the High Court have not kept these aspects in view, the order granting bail is clearly unsustainable and is set aside. In the aforesaid circumstances, we find no substance whatsoever in the contention raised by Mr. Singh." 10. Since the trial Court and the High Court have not kept these aspects in view, the order granting bail is clearly unsustainable and is set aside. The appeal is allowed." (B) In case of Ratan Malik @ Habul vs. Union of India, the Hon'ble Apex Court held as under : "Mr. A. Sharan, learned Additional Solicitor General of India, strenuously urged that the High Court has committed a grave error of law in granting bail to the respondent, ignoring the mandatory provisions of Section 37 of the NDPS Act. The learned counsel contended that the High Court lost sight of the restrictions and limitations imposed by Section 37 of the NDPS Act. According to the learned counsel, the grant of bail to the respondent, without recording any finding on the conditions as stipulated in Section 37(1)(b)(ii) of the NDPS Act, the order suspending the sentence is ex facie illegal and therefore deserves to be set aside, with a direction to the respondent to surrender to custody forthwith. In support of the proposition that suspension of sentence by the appellate Court has to be within the parameters of law, prescribed by the Legislature, the learned senior counsel placed reliance on a three Judge Bench decision of this Court in Dadu alias Tulsidas vs. State of Maharashtra (2000) 8 SCC 437 . 9. Learned counsel appearing on behalf of the respondent, on the other hand, supported the impugned order and submitted that if the impugned order is read as a whole, it can be inferred therefrom that the learned Judge was conscious of the provisions of Section 37 of the NDPS Act. It is, thus, urged that the order granting bail to the respondent being discretionary, this Court should be loath to interfere with it in exercise of its jurisdiction under Article 136 of the Constitution. 10. Having carefully gone through the impugned order, we are constrained to observe that while dealing with the application for bail, the learned Judge appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act and thus, the impugned order is clearly unsustainable. 11. 10. Having carefully gone through the impugned order, we are constrained to observe that while dealing with the application for bail, the learned Judge appears to have lost sight of the mandatory requirements of Section 37 of the NDPS Act and thus, the impugned order is clearly unsustainable. 11. The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of this Court and, therefore, for a sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail, these provisions cannot be ignored while dealing with such an application. As already noted, in the present case, the respondent has been convicted and sentenced for offences under the NDPS Act and, therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for offences under the Indian Penal Code, 1860 the relevant provision in the said special statute in this regard had to be kept in view. 12. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29th May, 1989 with further amendment by Act 9 of 2001 reads as follows: "37. Offences 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 of 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 1974), or any other law for the time being in force on granting bail." 13. (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 1974), or any other law for the time being in force on granting bail." 13. 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 offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the 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". The expression 'reasonable grounds' 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 Kesari2]. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 14. We may, however, hasten to add 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 weight the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. At this stage, it is neither necessary nor desirable to weight 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." 13. In view of the aforesaid discussion, this Court is of the firm opinion that the petitioner is not entitled to be released on anticipatory bail in this case. 14. The bail application filed by the accused under Section 438 Cr.P.C. is thus, rejected.