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2014 DIGILAW 2408 (ALL)

MANOJ RAM v. STATE OF U. P.

2014-08-08

ANIL KUMAR SHARMA

body2014
JUDGMENT HON'BLE ANIL KUMAR SHARMA, J. Applicant Manoj Ram seeks bail in case crime no. 633 of 2013 u/s 8/21 Narcotic Drugs and Psychotropic Substances Act, 1985 P. S. Mardah, District-Ghazipur. 2. Heard Sri Manoj Kumar Pandey, learned counsel for the applicant, learned AGA and perused the affidavits filed in the case. 3. It has been argued by the learned counsel for the applicant that the applicant has been falsely implicated in the case and the police has fabricated recovery of heroin from the possession of the applicant along with two other accused; that the applicant is a member of scheduled caste community and is a registered contractor so out of jealousy with the collusion of police he has been falsely implicated in the case; that the alleged incident of recovery is broad day light from very busy and dense populated area, but there is no independent public witness for the recovery, which falsifies the prosecution story regarding recovery of the contraband; that the mandatory provisions of Section 50 of the Act have not been complied with and thus the alleged recovery is highly suspicious and there is no report of the Forensic Science Laboratory with regard to the contents and nature of the contraband. Lastly it has been argued that the applicant is in jail since 9.10.2013 and he has no previous criminal history, so he may be enlarged on bail. 4. Opposing the bail application learned AGA for the State has argued that on 9.10.2013 during patrol duty Inspector-in-charge Gyasuddin at Kaithavali triangular crossing received information from an informer that three bikers on two motor cycles are coming from Mau side who are heroin smugglers and they are carrying huge quantity of heroin. Acting on this information the police personnel searched each other and at about 3.35 p.m. they apprehended three persons boarding bullet motor cycle and Hunk motor cycle. On enquiry they disclosed their identity as heroin smugglers and said that they are carrying illicit heroin. The Inspector informed their right to be searched before Gazetted officer or the Magistrate, whereupon they wished to get the search before any Gazetted officer. As per the choice of accused persons C.O., Kasimabad was contacted on hand-set and he arrived at the spot after about 40 minutes. After knowing about the incident he instructed to search the accused persons. The Inspector informed their right to be searched before Gazetted officer or the Magistrate, whereupon they wished to get the search before any Gazetted officer. As per the choice of accused persons C.O., Kasimabad was contacted on hand-set and he arrived at the spot after about 40 minutes. After knowing about the incident he instructed to search the accused persons. First of all accused Manoj Ram was searched and from his right side pant an open polythene was recovered which contained fine brown colour powder (suspected heroin) wrapped in a news-paper and on weighing it was found 450 grams. Similarly other two persons were searched and different quantity of brown colour powder was recovered, which was suspected heroin. The recovery memo was prepared at the spot and the accused were arrested. After analysis of 490.40 grams suspected heroine, the FSL, Ram Nagar, Varanasi vide report dated 4.12.2013 found it to be heroine. Lastly it has been submitted that the cost of the recovered heroin in international market is about forty five lac rupees. 5. As regards the 1st argument of the learned counsel for the applicant that the applicant has been falsely implicated on account of jealousy as he is a rising contractor of scheduled caste community, suffice it to say that the applicant is resident of District Mau, while he has been apprehended by the police of District Ghazipur and he has not shown or alleged any animus of Ghazipur police on any count with him. 6. This application for bail has been filed under Section 439 Cr. P. C., however, section 37 of the Act being a special enactment, general provisions of S. 439 of the Code will be required to be read subject to the limitations provided in S. 37 in view of Section 4 of Code of Criminal Procedure and sub-section (2) of Section 37 of the Act. 7. 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. 7. 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 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 (12 of 1974), or any other law for the time being in force on granting of bail." 8. Under section 437 or 439 of the Code of Criminal Procedure it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail. However, as the definition of section 37 noted above indicate, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This is the distinction between the two provisions which makes section 37 of NDPS Act, more stringent. The twin conditions under section 37(1)(b)(ii) of the Act required to be satisfied are cumulative and not alternative as held by the Apex Court in the case of Collector of Customs Vs. Ahmadalieva Nodira (2004) 3 SCC 549 . 9. The Apex Court in para-14 of the report in the case of Union of India Versus Rattan Mallik @ Habul (2009) 1 SCC (Cri) 831, has highlighted the considerations for bail under NDPS Act with reference to section 37 thereof, which reads thus: "14. Ahmadalieva Nodira (2004) 3 SCC 549 . 9. The Apex Court in para-14 of the report in the case of Union of India Versus Rattan Mallik @ Habul (2009) 1 SCC (Cri) 831, has highlighted the considerations for bail under NDPS Act with reference to section 37 thereof, which reads thus: "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 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." 10. Although at this stage it cannot be said that the mandatory provisions with regard to the detention, arrest, search and seizure etc. in respect of the applicant have not been followed, simply because it is premature to give any verdict on the arguments of the learned counsel for the applicant as it would be decided after appreciation of the evidence led by the parties in the case. Further this issue had been illuminatingly answered by the Apex Court in the case of Narcotics Control Bureau Vs. R. Paulsamy (2000)9 SCC 549 and it has been observed in para-6 as under: "In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which the learned Single Judge should have been taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with formalities mentioned in Sections 52 and 57." 11. There can be no dispute with the proposition that compliance of section 50 of the Act is mandatory, as had been held by the Apex Court in catena of cases and without burdening the order much, it would be apt to refer to the constitution bench case of 5-Hon'ble Judges - Vijaysinh Chandubha Jasdeja Vs. State of Gujarat 2011 (72) ACC 286 (Supreme Court), also relied upon by the counsel for the applicant. In para-22 of the report it has been held that the obligation of the authorized officer under sub-section (1) of the section 50 of the NDPS Act is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. However, the Hon'ble Court has further added that the question whether or not the procedure prescribed has been followed and the requirement of section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. Reverting back to the facts of the instant case, we find that the accused-applicant was informed of his right to have search in presence of nearest Gazetted Officer or the Magistrate and he has exercised his right provided to him under the said provision for the search to be taken in presence of a Gazetted officer and thereafter in fact, C.O. Kasimabad was requisitioned and in his presence the search of the applicant and his two associates was made. In this regard we find following averments in the recovery memo: ^eq> izHkkjh fujh{kd }kjk idM+s x;s O;fDr;ksa dks muds vf/kdkj ls voxr djkrs gw;s ;g crk;k x;k fd vki pkgs rks vkidh tkek ryk'kh l{ke efTkLVªsV@jktif=r vf/kdkjh ds le{k ns ldrs gSa rks rhuksa us dgk fd ge lc viuh tkek ryk'kh fdlh jktif=r vf/kdkjh ls djkuk pkgrs gSa]---------^ The above averments in the recovery memo are prima facie sufficient to hold that in the instant case the provisions of section 50 of the NDPS Act were complied with although in view of conclusion no. (5) given by the Apex Court in the case of constitutional bench case of State of Punjab Vs. Baldev Singh AIR 1999 SC 2378 , relied upon by the counsel for the applicant, which is reproduced below and reiterated in the case of Vijaysinh Chandubha Jasdeja (supra), no such finding is required at the stage of consideration of bail: "(5) That whether or not the safeguards provided in Sec. 50 have been duly observed would have to be determined by the Court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Sec. 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial." In the facts and circumstances of the instant case, the cases relied upon by the learned counsel for the applicant namely Suresh and others Vs. State of M. P. 2013(1) SCC 550 , and Ashok Kumar Sharma Vs. State of Rajasthan 2013(2) SCC 137 have no application. 12. On the basis of para-6 of rejoinder affidavit, learned counsel for the applicant has vehemently argued that as per provisions of the section 50(5) of the Act, the officer duly authroised under section 42 can take search of the person himself without having been taken him for this purpose to nearest Gazetted officer or the Magistrate after following the provisions of section 100 of the Code of Criminal Procedure. The argument raised on behalf of the applicant is that now by deemed fiction an Authorised Officer, when he has reasons to believe, that the person to be searched may part with the possession of any drug in case he is taken to the nearest Gazetted Officer or Magistrate he may search the person in accordance with Section 100 of the Code of Criminal Procedure. He is also required to record the reasons in this behalf and convey the same to his immediate superior officer. It is, therefore, contended on behalf of the appellant that by deemed fiction Section 100 Cr.P.C. is made applicable to all searches. He further contends that in the instant case the place of arrest of the accused is a busy triangular crossing, therefore, the police was bound to follow the procedure under Section 100 (4) Cr.P.C. and should have called upon two or more independent and respectable inhabitants of the locality. Even if a person has such a right the authorized officer may come to the conclusion that it is not possible to take such person to the nearest Magistrate or Gazetted Officer since the person to be searched may have a chance to flee or the place where the recoveries is to be made is such that it is not possible to take the person to the nearest Magistrate without there being a chance of his parting with the contraband. Some examples in this behalf can be of searches carried out on the high sea or in big rivers or in remote areas of forests and mountains. 13. Effect of the non-joining the independent witnesses is always examined in view of the facts and circumstances of each and every case and that too at the stage of final disposal of the case after an opportunity is given to the arresting officer to explain about not taking independent witness at the time of alleged recovery. In case the omission to join independent witnesses is not deliberate and mala fide but because of circumstances beyond control of the concerned officer, the lapse will have least effect on the prosecution case. The omission to join independent witnesses ipso facto will not be fatal to the case of prosecution. Nowadays public witnesses are reluctant to come forward to join police investigation in order to avoid their repeated visits to the police station and the Court. The omission to join independent witnesses ipso facto will not be fatal to the case of prosecution. Nowadays public witnesses are reluctant to come forward to join police investigation in order to avoid their repeated visits to the police station and the Court. In Ajmer Singh Vs. State of Haryana 2010 (2) SCR 785, the Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witnesses after genuine efforts, the recovery made by the police officer would not be vitiated. The Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. In the instant case it has been noted in the recovery memo that at the time of arrest and recovery several persons have assembled and when their names and addresses were asked for being witness, they went away without disclosing their identity. Thus, it is not a case, in which no explanation had been given by the arresting officer for non-joining of the public witnesses in the recovery. The veracity of the explanation cannot be adjudged at this primary stage, but it would be assessed during trial after evidence is led in this regard by the prosecution. Similar would be the position with regard to the other allegations of non-compliance of mandatory provisions of the Act and the law relied upon by the learned counsel for the applicant namely Kishan Chand Vs State of Haryana AIR 2013 SC 357 with regard to alleged violation of the provisions of section 42 of the Act would not help the applicant. 14. Further in view of the provisions of sections 35 and 54 of the Act, it is the burden of the applicant to prove that he was not in conscious possession of the contraband, if it is proved that he was in possession thereof and that he had no such mental state with respect to the act charged as an offence. 15. 15. In view of all the aforestated reasons, in the opinion of the Court, the twin conditions as enumerated in section 37 (1)(b)(ii) of the Act, for grant of bail to the applicant for the offences under NDPS Act are not satisfied, therefore, he cannot be released on bail and the bail application is accordingly dismissed. ——————