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2015 DIGILAW 2107 (RAJ)

Mani Ram v. State of Rajasthan

2015-12-17

SANDEEP MEHTA

body2015
Hon'ble MEHTA, J.—This anticipatory bail application has been filed by the petitioner Mani Ram apprehending arrest in connection with F.I.R. No. 112/2014, Police Station Nagaur Sadar, Nagaur for the offence under Section 8/15 of the NDPS Act. 2. Facts in brief are that the SHO Nagaur received a source information on 22.4.2014 that Jetha Ram Inania and his brother Mani Ram (the present petitioner) had hidden bags of poppy straw at the hotel Nirmala located at the Sarhad Kharnal and were on the look out for loading them in the tractor trolley and disposing it off. After observing the due formalities required under the NDPS Act, the SHO reached the hotel Nirmala and saw a tractor and trolley standing in the backyard. A man was loading gunny bags onto the trolley. On seeing the police party, he tried to run away but was pursued and apprehended. He disclosed his name to be Khema Ram S/o Jagmala Ram. He was confronted with the source information and thereafter, search proceedings were initiated. A total of 5 gunny bags full of poppy straw were found loaded on the tractor trolley whereas 6 more were found in the garage annexed to the hotel. Khema Ram could not provide any permit or licence for the poppy straw. He informed the Seizure Officer that the gunny bags of poppy straw had been stored by Jetha Ram and Mani Ram in the garage for selling the same. The contraband narcotic weighting a total of 266 Kgs. was seized after following the requisite formalities. The SHO returned back to the Police Station and registered an FIR No. 112/2014 for the offence under Section 8/15 of the NDPS Act against Khema Ram, Jetha Ram and Mani Ram the present petitioner. The petitioner has now approached this Court by way of this application for anticipatory bail apprehending his arrest in the matter. 3. Shri Anand Purhoit, learned Sr. Advocate assisted by Shri Om Prakash Sangwa, learned counsel for the petitioner vehemently contended that there is no material on the record of the case to show that the petitioner is connected with the premises, from where the contraband poppy straw was recovered. He further contended that the similarly situated co-accused Jetha Ram has already been granted anticipatory bail by this Court and therefore, the petitioner too deserves to be extended the same benefit on parity. 4. He further contended that the similarly situated co-accused Jetha Ram has already been granted anticipatory bail by this Court and therefore, the petitioner too deserves to be extended the same benefit on parity. 4. Per contra, learned Public Prosecutor vehemently opposed the arguments advanced by the learned counsel for the petitioner and contended that the petitioner is the joint owner of the hotel from where contraband poppy straw weighing 266 Kgs. which is well above the commercial quantity was seized. He further submitted that the Investigating Officer has already filed a charge-sheet against the petitioner showing him to be absconding and therefore, the instant application for anticipatory bail is not maintainable. Learned Public Prosecutor relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 and urged that as charge-sheet has been filed against the petitioner in his abscondence, the application preferred by the petitioner under Section 438 Cr.P.C. is not fit to be accepted. 5. In rejoinder, learned senior counsel Shri Anand Purohit relied upon the judgments rendered by Hon'ble Supreme Court in the cases of Ravindra Saxena vs. State of Rajasthan reported in 2010 Cr.L.R. (SC) 56 and Sudhir vs. The State of Maharashtra & Anr. in SLP (Crl.) No. 1753-54/2015 decided on 1.10.2015 and urged that in the above two cases, the Hon'ble Supreme Court extended the benefit of pre-arrest bail to the accused therein despite charge-sheet having been filed and therefore, the judgment rendered by Hon'ble Supreme Court in the case of Lavesh (supra) cannot be held as laying down an absolute preposition that an application for anticipatory bail can never be entertained after filing of charge-sheet. He submitted that the observations made in the case of Lavesh have to be read in context to the facts of that case. 6. I have heard learned counsel for the parties and have gone through the material available on record as well as the case diary. 7. Firstly, coming to the argument that since the co-accused Jetha Ram has been granted anticipatory bail by this Court, therefore, the petitioner should also be released on anticipatory bail on parity. Needless to say that while granting bail to an accused charged with the possession of commercial quantity of narcotics, the requirement of Section 37 of the NDPS Act is required to be followed mandatorily. Needless to say that while granting bail to an accused charged with the possession of commercial quantity of narcotics, the requirement of Section 37 of the NDPS Act is required to be followed mandatorily. The provision reads as below: 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 2 (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 1974) or any other law for the time being in force, on granting of bail." 8. The learned Public Prosecutor has opposed the bail application. The recovered contraband is well above the commercial quantity. Thus before granting bail to an accused in the case at hand, the Court is required to record a satisfaction 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. The admitted situation as reflected from the record is that the Police has already filed a charge-sheet in the concerned Court and cognizance has also been taken against the charge-sheeted accused including the present petitioner. The Hon'ble Supreme Court in the case of Union of India vs. Rattan Mallik @ Habul reported in (2009) 2 SCC 624 considered the import of Section 37 of the NDPS and held as below: "3. The Hon'ble Supreme Court in the case of Union of India vs. Rattan Mallik @ Habul reported in (2009) 2 SCC 624 considered the import of Section 37 of the NDPS and held as below: "3. Challenge in this appeal, by the Union of India, is to the order dated 13th November, 2006, passed by the High Court of Judicature at Allahabad suspending the sentence awarded by the trial Court to the respondent for having committed offences under Sections 8/27-A and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act') and granting him bail. 4. Since in this appeal we propose to deal with the short question, viz. whether the High Court, while accepting the prayer for grant of bail, had kept in view the parameters of Section 37 of the NDPS Act, we deem it unnecessary to advert to the facts of the case against the respondent in greater detail. It would suffice to note that the case of the prosecution against the respondent was that he was involved in financing and trading in 14.900 kilograms of heroin, recovered from a specially made cavity above the cabin of a truck. Upon consideration of the evidence adduced, the Trial Court came to the conclusion that the prosecution had successfully proved the charges against the respondent and three others. On conviction, the Trial Court sentenced the respondent to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac under Section 27-A of the NDPS Act and undergo rigorous imprisonment for ten years and a fine of Rs. 1 lac under Section 29 of the NDPS Act, with default stipulation. 5. Being aggrieved, the respondent preferred an appeal to the High Court along with an application for suspension of sentence and grant of bail till his appeal was finally decided. The High Court, by the impugned order, has allowed the bail application and has ordered that the respondent shall be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the concerned Court. 6. The High Court, by the impugned order, has allowed the bail application and has ordered that the respondent shall be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the concerned Court. 6. The considerations which weighted with the High Court for suspension of sentence and grant of bail are brief and for the sake of ready reference are extracted below: "The appellant has been convicted under Sections 8/27-A and 8/29 of N.D.P.S. Act for ten years' R.I. and also fine. Nothing has been found from his possession. Besides the appellant is in jail since 5.9.2003. Three years have already lapsed. There is no chance of the appeal being heard within a period of seven years." 7. Aggrieved thereby, the Union of India has preferred this appeal. 8. 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. 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. 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. 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 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 1974), or any other law for the time being in force on granting of bail." 13. It is plain from a bare reading of the non obstante clause in the Section and subsection (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 charge 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 2) 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 weigh 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 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. 15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years; and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Indian Penal Code, 1860 etc. but are not sufficient to satisfy the mandatory requirements as stipulated in sub-clause (b) of sub-sec. (1) of Section 37 of the NDPS Act. Merely because, according to the Ld. Judge, nothing was found from the possession of the respondent, it could not b said at this stage that the respondent was not guilty of the offences for which h has been charged and convicted. We find no substance in the argument of learned counsel for the respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the Ld. Judge tantamounting to "satisfaction" within the meaning of the said provision. It seems that the provisions of the NDPS Act and more particularly Sec. 37 were not brought to the notice of the learned Judge. 16. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. It seems that the provisions of the NDPS Act and more particularly Sec. 37 were not brought to the notice of the learned Judge. 16. Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the NDPS Act, it cannot be sustained. Accordingly, the appeal is allowed and the matter is remitted back to the High Court for fresh consideration of the application filed by the respondent for suspension of sentence and for granting of bail, keeping in view the parameters of Section 37 of the NDPS Act, enumerated above. We further direct that the bail application shall be taken up for consideration only after the respondent surrenders to custody. The respondent is directed to surrender to custody within two weeks of the date of this order, failing which the High Court will take appropriate steps for his arrest." 9. While passing the order dated 28.8.2015 passed by this Court in Bail Application No. 3262/2015 granting anticipatory bail to the co-accused Jetha Ram, the mandatory requirement of Section 37 of the NDPS Act appears not to have been considered and as such, the said order is of no help whatsoever to the present petitioner. 10. In this background and considering the fact that the petitioner has been charge sheeted in the matter while showing him to be an absconder and as on going through the case diary, there is prima-facie evidence to connect the petitioner with the offence of dealing in commercial quantity of contraband poppy straw, this Court is not inclined to grant anticipatory bail to the petitioner. The application for pre-arrest bail is thus dismissed.