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2014 DIGILAW 1153 (HP)

Pramod Kumar v. Narcotics Central Bureau

2014-08-28

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, J. This petition has been preferred for grant of bail in NCB Criminal Case No. 1 of 2014 dated 3.1.2014 registered by Narcotics Control Bureau (NCB), Sub-Zone Ramnagar Mandi, under sections 8, 20, 29 and 60 of Narcotic Drugs and Psychotropic Substances Act (for short: NDPS Act). 2. The respondent has produced the records of the investigation. The prosecution case appears to be that on 3.1.2014 secret and specific information was received by the Intelligence Officer (for short; I.O.) that four persons, who were involved in smuggling of Charas and were carrying charas in the vehicle bearing registration No. HP-01K-2598, which information was reduced into writing and laid before the Superintendent, NCB, Chandigarh. The Superintendent NCB telephonically directed the I.O. to organize a surveillance operation and constitute a team of NCB for intercepting the vehicle and the accused. At about 1640 hours, the I.O. alongwith constituted team reached at near Village Chowki Jari, Tehsil Bhunter District Kullu, where they associated two independent witnesses and divulged the information regarding drug trafficking and requested them verbally and in writing to witness the process of search of vehicle as and when it arrives. 3. The NCB team placed a nakka at near village Chowki Jari, District Kullu alongwith the witnesses and waited for the aforesaid vehicle, which arrived at about 1700 hours. The vehicle arrived and it was a jeep (Xylo) white colour bearing aforesaid registration number, which was signaled to stop by the NCB team. As soon as the vehicle was stopped, it was found that there were four persons sitting in the vehicle. The Intelligence Officer (I.O.) introduced himself and his team to the driver and other occupants of the vehicle and disclosed the reasons for stopping the vehicle. The I.O. before conducting search offered for search of his person and his team members, which was declined by the accused and the other co-accused and thereafter the I.O. served a notice under section 50 of NDPS Act, wherein the accused also explained the terms of section 50 and their right of being search in the presence of Magistrate or a Gazette Officer, which was declined by them. All the persons signed on the notice served upon them. 4. All the persons signed on the notice served upon them. 4. The NCB team searched the vehicle in presence of two independent witnesses and during search the I.O. detected some suspicious items in the false ceiling near light and he directed the driver to remove the light bulb. On removing the light, it was discovered that there were three packets wrapped in dark brown coloured tape in the false ceiling of the vehicle. On asking the driver as also the three occupants of the vehicle, they disclosed that there was Charas inside these packets. On opening these packets in presence of the accused and the witnesses, it was found that the same contained dark brown coloured chapatinuma and finger shaped and round shaped substances, some of which were wrapped in transparent polythene, while the others were wrapped with brown tape and all the packets contained the same substance out of which strong smell was coming. A small portion of suspected material from entire stuff was taken out separately and test was conducted with the help of drug detection kit by the I.O., which answered positive for Charas/Hashish. 5. The material was taken into custody by the I.O. and weighed with the electronic machine on the spot and was found to be 1.006 kilograms. The material and the vehicle were seized as per recovery-cum-seizure memo drawn by the I.O. which was duly signed by the witnesses, accused persons and the I.O. on the spot. 6. Sh. Yadvender Gupta, learned counsel for the petitioner has strenuously argued that case against the petitioner, who is resident of Delhi, is totally false. The petitioner is innocent and has not committed any offence whatsoever. He further claims that investigation is complete and nothing is to be recovered either at the instance or from the possession of the petitioner and even the report, under section 173 Cr.P.C. has been filed in the learned court. He further argues that even the FSL report has been received and, therefore, the petitioner is entitled to grant of bail. It is further vehemently argued that the quantity of contraband though is allegedly to be 1.006 Kg. including packaging, therefore, actual quantity of the contraband works out to be less than 1 Kg. He further argues that even the FSL report has been received and, therefore, the petitioner is entitled to grant of bail. It is further vehemently argued that the quantity of contraband though is allegedly to be 1.006 Kg. including packaging, therefore, actual quantity of the contraband works out to be less than 1 Kg. and therefore, the quantity being less than the commercial quantity and being only intermediate quantity, therefore, the petitioner is entitled to bail as then the rigours of Section 37 of the NDPS Act are not applicable. 7. He has further vehemently argued that in the recovery-cum-seizure memo, which was filled up on the spot does not disclose the quantity of the contraband. This would be clear from the bare perusal of the column No. 4 of the same, which relates to the quantity/ value and country of origin of each/ description of Goods seized including conveyances, which has been left blank, which clearly proves that either no contraband was recovered or then the quantity of the alleged drug has been tampered with, so as to make it fall within the commercial quantity. He further states that as per admitted case of the parties, it was only the recovery-cum-seizure memo, which was filled up on the spot while the rest of the forms had been filled up at the NCB office at Mandi and therefore it is only the quantity, if any, mentioned in the recovery memo which would determine the weight of the contraband. 8. He further vehemently argued that respondents in fact initially had entered the quantity of the contraband to be 1.00 Kg. and it is later that the same has been changed to 1.006 Kg. so as to make it fall within “commercial quantity” to defeat the right of the petitioner for grant of bail or else the petitioner would have been entitled to bail in case quantity of the contraband was intermediate as then the rigours of section 37 of NDPS Act would not have applied. 9. On the other hand, Sh. Ashwani Pathak, learned counsel for the respondent has vehemently opposed the bail application and submits that not only the final report has been filed but even the trial in this case has already commenced as the case is listed for recording the evidence on behalf of the complainant in the end of this month. 9. On the other hand, Sh. Ashwani Pathak, learned counsel for the respondent has vehemently opposed the bail application and submits that not only the final report has been filed but even the trial in this case has already commenced as the case is listed for recording the evidence on behalf of the complainant in the end of this month. Moreover, the petitioner is accused of an extremely serious offence. He further contended that in case the petitioner is ordered to be released on bail, it would be extremely difficult to procure his presence since he is not resident of this State and claims himself to be a resident of Delhi. I have considered the rival submissions of the parties and gone through the records of the investigation. 10. The court at this stage when the matter is pending for recording of the prosecution evidence is not expected to give a finding as to whether the contraband recovered was more than 1 Kg. or less or whether the material recovered includes the weight of the wrappers thereby making the quantity less than commercial. The petitioner can only be granted bail in case prima facie his presence at the spot is disputed or not proved. This is not the case here and moreover not even the case set up by the petitioner. His only claim is that he is innocent and has been falsely implicated. 11. It has been categorically held by the Hon’ble apex court that courts exercising the bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For in that manner, the principle of “presumption of innocence of an accused” gets jeopardized; and the structural principle of “not guilty till proved guilty” gets destroyed, even though all same elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Reference in this regard can be made to Kashi Nath Roy vs. State of Bihar (1996) 4 SCC 539 , wherein the Hon’ble Supreme Court has held as follows:- “6. As embedded in the criminal jurisprudence obtaining in this country, Courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. As embedded in the criminal jurisprudence obtaining in this country, Courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all same elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on this part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed.” 12. It is further to be remembered that at the stage of dealing with the cases regarding bail, a detailed examination of evidence and elaborate documentation of the merits of the case are not to be undertaken. The court is not required to discuss the merits and demerits of the case at this stage. It is only required to satisfy itself with (i) the nature of accusation and the severity of the punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant and (iii) prima facie satisfaction of the court in support of the charge and any order dehors such consideration suffers from non- application of mind. When all the three parameters are taken into consideration, it is prima facie established that the nature of accusation against the petitioner and the severity of punishment for which he has been charged is extremely grave and serious. Moreover the apprehension of the respondent that in case the petitioner is let off on bail, it will be difficult to procure his presence since he is resident of Delhi cannot be said to be ill-founded. In fact, one of the considerations for grant of bail is also to secure the presence of the accused. 13. The drug abuse is a social malady. In fact, one of the considerations for grant of bail is also to secure the presence of the accused. 13. The drug abuse is a social malady. The drug addicts eat into the vitals of the society, but drug trafficking not only eats into the vitals of the economy of a country but illicit money generated by drug trafficking is often used for illicit activities. The constitution Bench of the Hon’ble Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 has observed as follows:- “4. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The United Nations Conventions Against Illicit Trafficking In Narcotic Drugs and Psychotropic Substances which was held in Vienna, Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this Convention.” 14. If we see the effect of the drugs in the society then lacs of young people are becoming addicted to drugs which is ultimately ruining the young generation and they are destroying the wealth of the nation. It is not only the young boys but even the girls who are being made addicted to some drug or the other. The operators of such racket are compelling them to indulge in anti-social and anti-national activities and victims of such drugs are having no option but to surrender to the dictates of such operator because of their dependency and addiction to the drugs. By adopting such means the operators of such drug rackets are exploiting the young generation which is the wealth and hope of our nation. By adopting such means the operators of such drug rackets are exploiting the young generation which is the wealth and hope of our nation. Therefore, the offence for which the petitioner has been accused of is an offence not only against the society but against the nation and therefore, when there is a conflict between an individual and the society at large, then the law has always given primacy to the society, the State and the nation. 15. The upshot of the discussion made hereinabove is that the petitioner has not been able to carve out a case for grant of bail and accordingly, the present petition is dismissed. 16. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.