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2013 DIGILAW 487 (ORI)

Basanta Nayak @ Ananta Malli v. State of Orissa

2013-12-10

B.N.MAHAPATRA

body2013
JUDGMENT B.N. MAHAPATRA, J. : This petition has been filed under Section 439, Cr.P.C. in connection with C.T. Case No.64 of 2013 arising out of Gunupur P.S. Case No.72 of 2013 now pending in the file of learned Sessions Judge-cum-Special Judge, Rayagada. 2.The petitioner is alleged to have committed offence punishable under Section 20(b) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS’ Act’). 3.Prosecution story is that the petitioner was carrying 24.5 Kgs. of Ganja in a Motorcycle bearing Registration No. AP-30-E-1475. Relying on the seizure list, it was submitted that the Ganja in question had been seized from the possession of the petitioner in presence of the witnesses, namely; Sri Dibakar Barik and Sri Bhaskar Rout. The quantity of Ganja seized is 24.5 Kgs, which is greater than the commercial quantity, i.e., 20 Kgs. specified vide Notification No.1055 (E) Dated 19.10.2001 issued under Clauses (vii-a) and (xxiii-a) of Section 2 of the NDPS Act. Therefore, in view of Section 37 of the NDPS Act no bail may be granted to the petitioner. 4.Learned counsel for the petitioner submitted that the petitioner is no way connected with the materials seized. The Motorcycle from which the Ganja was seized did not belong to the petitioner. Since quantity of General seized is only 24.5 Kgs. mandate of Section 37 of the NDPS Act is not strictly applicable to petitioner’s case. Learned counsel for the petitioner placed reliance on the order dated 3.12.2013 passed by this Court in BLAPL No.8974 of 2013 in which the petitioner has been enlarged on bail where the quantity of Ganja involved is 2 quintals, 60 Kgs. and 400 grams. He further submitted that the petitioner is in custody for more than 6 months. 5.To consider the petitioner’s prayer for grant of bail, it is necessary to know what is contemplated in Section 20(b)(ii)(C) and Section 37 of the NDPS Act. Section 20(b)(ii)(C) reads as follows :- “20. and 400 grams. He further submitted that the petitioner is in custody for more than 6 months. 5.To consider the petitioner’s prayer for grant of bail, it is necessary to know what is contemplated in Section 20(b)(ii)(C) and Section 37 of the NDPS Act. Section 20(b)(ii)(C) reads as follows :- “20. Punishment for contravention in relation to cannabis plant and cannabis.– Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder :- (a)xxxx xx (b)produces, manufactures, possesses sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable.– (i)xxxxxx (ii)where such contravention relates to Sub-clause(b), — (A)xxxxxx (B)xxxxxx (C)and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.” Undisputedly, the quantity of Ganja involved in the present case is 24.5 Kgs., which is commercial quantity. Once the quantity of Ganja involved is commercial quantity, the mandate of Section 37 of NDPS Act comes into operation which 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 or Section 27-A 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 of bail.” 6.Thus, every offence punishable under the NDPS Act shall be cognizable. (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.” 6.Thus, every offence punishable under the NDPS Act shall be cognizable. The power to grant bail to a person alleged to have committed offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1985 is subject to the restriction prescribed by sub-clause (b) of Sub-section (1) of Section 37 of the NDPS Act, 1985. First of all, an opportunity to the Public Prosecutor has to be given to oppose the application for release of the accused. The other twin conditions are (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the offence alleged to have been committed; (ii) he is not likely to commit any offence while on bail. Thus, recording of satisfaction on both aspects is sine qua non to grant bail in respect of offence punishable under Section 19 or Section 24 or Section 27-A and also offence involving commercial quantity. Section 37(2) further provides that the limitations on granting bail specified in sub-clause (b) of Sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. As it appears from the language of Section 37(1)(b), the Court must adopt a negative attitude towards bail. 7.At this juncture it will be profitable to refer to some of the decisions of the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case of Union of India versus Shiv Shanker Kesari, (2007) 7 SCC 798 held as under :- “6. As the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 8.The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to given an exact definition of the word “reasonable.” “7. ... In Stroud’s Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he think. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy.” (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar1 (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.2 XXXXX 11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.” 8.The Hon’ble Supreme Court in Ratan Kumar Vishwas v. State of U.P. and another, 2008 (4) Crimes 396 (SC) :- “16. 12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.” 8.The Hon’ble Supreme Court in Ratan Kumar Vishwas v. State of U.P. and another, 2008 (4) Crimes 396 (SC) :- “16. To deal with the menace of dangerous drugs flooding the market, parliament has provided that a person accused of offence under the Act should not be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such office and that he is not likely to commit any offence while on bail are satisfied ...” 9.The Hon’ble Supreme Court in the case of Union of India v. Rattan Mallik @ Habul, (2009) 42 OCR (SC) 697, held as under : “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 the 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.” 10.Keeping in mind the above legal principles, I have to consider the present petition for bail. In the FIR, it is categorically stated that the police officer who was performing night patrolling duty found one person standing with a Bajaj Pulsar Motorcycle bearing Registration No.AP-30-E-1475 at the new bus stand, Gunupur. The police officer found three bags, which were loaded on the said Motorcycle and the said person was holding one bag on his back side. Since acute smelling of ganja was coming out from those bags, on suspicion the said police officer enquired about the name of the person and contents of the bags. The person, who was carrying bags disclosed his name as Ananta Mali @ Basanta Nayak, son of Pratap Chandra Mali @ Nayak of village Ramgada, P.O. Antaruba, P.S. Adaba, Dist : Gajapati. Further it was stated that the bags contained ganja, which was being transported in air bags procuring the same from Kenduguda side. The person, who was carrying bags disclosed his name as Ananta Mali @ Basanta Nayak, son of Pratap Chandra Mali @ Nayak of village Ramgada, P.O. Antaruba, P.S. Adaba, Dist : Gajapati. Further it was stated that the bags contained ganja, which was being transported in air bags procuring the same from Kenduguda side. Being asked he opted to be searched in presence of an Executive Magistrate. Accordingly, on arrival of the Executive Magistrate, search was made and it was found that four number of air bags contained contraband ganja. The Executive Magistrate in his declaration dated 01.06.2013 has also stated that he found one person with Motorcycle bearing Registration No.AP-30-E-1475 detained by the S.I., Police, Gunupur with his staff for checking said Motorcycle and the person present at the spot. Being asked by him, the accused person identified himself as Ananta Mali @ Basanta Nayak and stated that the air bags kept in the Motorcycle and another bag on his shoulder contained ganja which was procured from unknown persons of Kenduguda side @ Rs.1,000/- per/kg and transporting the same to sell at higher rate. While he was carrying the said articles, the same was inspected by the patrolling police. After observing all the formalities during personal search of accused Ananta Mali @ Basanta Nayak, a cash of Rs.650/- and one cell phone bearing SIM Nos.9778913711 and 8458039495 and one Motorcycle bearing Registration No.AP-30-E-1475 (Bajaj Pulsar) were seized from exclusive possession of the suspected Ananta Mali. One independent witness Mr. K. Bighneswar in his statement recorded under Section 161 Cr.P.C. has also stated that the police people were guarding a person and a red colour motorcycle bearing Registration No.AP-30-E-1475. In the seized list, column 11 contains circumstances of seizure, wherein it is mentioned that during the course of investigation contraband ganja was seized from exclusive possession of the accused Ananta Mali at the new bus stand, Gunupur, which was being transported for selling purpose. 11.The contention of the petitioner that the quantity of ganja involved being little more than 20 kgs which is specified by the Central Government to be commercial quantity, the rigor of Section 37 of the N.D.P.S. Act has no strict application, merits no consideration for the simple reason that all penal statutes are to be strictly construed. 11.The contention of the petitioner that the quantity of ganja involved being little more than 20 kgs which is specified by the Central Government to be commercial quantity, the rigor of Section 37 of the N.D.P.S. Act has no strict application, merits no consideration for the simple reason that all penal statutes are to be strictly construed. The Amending Act, 2001 introduced the concept of “commercial quantity” under clause (vii-a) in Section 2 and ‘small quantity’ in Section 2 (xxiii-a) in relation to narcotics drugs and psychotropic substances. The statement of objects and reasons of the Amending Act, 2001 envisages the intention of the Legislature to rationalize the sentence structure so that while drug traffickers who traffic in significant quantity of drugs are punished with deterrent sentence, the addicts and those who commit less serious offence are sentenced to less severe punishment. Under the rationalized sentence structure, the punishment would vary depending upon whether the quantity involved is “small quantity” or “commercial quantity”. 12.Needless to say that Court is the custodian of law and it cannot pass order contrary to law. Courts being custodian of law have a solemn duty to uphold the rule of law under all circumstances by directing the authorities concerned to act in accordance with law. If the rule of law is not enforced, it will certainly become a casualty in the process a costly consequence to be zealously averted by all, and at any rate, by the Court. [See Salkia Businessmen’s Association and others v. Howrah Municipal Corporation and others., (2001) 6 SCC 688 ]. 13.In order to build a healthy and orderly society the Legislature in its wisdom has enacted various laws to prevent heinous crimes in the society. One of such enactment is NDPS Act, 1985. This Act is enacted for combating drug traffic and preventing drug abuses. It was also proposed to restrict the application of bail provisions to those offenders who indulge in serious offences. 14.In view of the above, it is not possible on my part to give a finding as required under Section 37 of the NDPS Act for grant of bail that there are reasonable grounds for believing that the petitioner is not guilty of the offence alleged to have been committed and that he is not likely to commit any such offence while on bail. 15.The order of this Court dated 03.12.2013 passed in BLAPL No.8970 of 2013 has no persuasive value since in that case the provisions of Section 37 of NDPS Act have not been taken into consideration while granting bail to the petitioner with the observation that except the allegation that the motorcycle was following the ambulance, there is no other material to show even remotely that the petitioner has nexus with the crime. Moreover, the fact of the present case is not similar to that case. 16.In the result, the petition for bail is dismissed. Petition for bail dismissed.