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2018 DIGILAW 905 (GAU)

RAMFANGZAUVA v. STATE OF MIZORAM

2018-06-06

NELSON SAILO

body2018
JUDGMENT & ORDER : 1. Heard Mr. Vanlalnghaka, the learned counsel for the petitioner and Mr. A.K Rokhum, the learned Public Prosecutor, Mizoram. 2. The Bail petition was heard on 05.06.2018 and thereafter the same has been fixed for delivery of order today. 3. By filing an application under Section 439 of the CrPC read with Section 37 of the ND&PS Act, 1985, the petitioner seeks his enlargement on bail. Be it stated herein that the petitioner was arrested on 01.07.2017 in connection with Sakawrdai P.S Case No. 4/2017 dated 01.05.2017, registered under Section 20 (b) (ii) (C) /Section 29 (1) of the ND&PS Act, 1985. Pursuant to the registration of the case based on the FIR which was filed on 01.07.2017, the case was investigated into and as many as 5 (five) suspected persons including the petitioner were arrested and their statements recorded. 5 (five) bags containing items suspected to be Ganja were recovered from a Maruti Van vehicle bearing Registration No. MZ01-B/4196 belonging to the petitioner. He was the one who was driving the Maruti Van when the recovery was made. 4. Upon completion of the investigation, Charge Sheet No. 3/2017 dated 11.09.2017 was filed by one Sanjay Thapa, Sub-Inspector of Police, Sakawrdai Police Station. The charge sheet was submitted on 11.09.2017. According to the petitioner, he filed a bail application before the learned Judge, Special Court under the ND&PS Act, which however was rejected. The learned Trial Court on the other hand released the other 3 (three) women co-accused on bail vide Order dated 19.03.2018 without considering the provisions provided under Section 37 of the ND&PS Act, 1985. The petitioner also contends that although he had transported the alleged items, he was unaware of the fact that the items were Ganja. He was approached only for hiring of his vehicle for transporting the said items. Therefore, under such circumstance, he should be released on bail. 5. Mr. Vanlalnghaka, the learned counsel for the petitioner by referring to the seizure memo submits that seizure was done on 30.06.2017 at 8:30 PM and that the petitioner was arrested on 01.07.2017 at 2:30 PM after an FIR was filed. The seized materials were produced before the Court on 02.07.2017. 5. Mr. Vanlalnghaka, the learned counsel for the petitioner by referring to the seizure memo submits that seizure was done on 30.06.2017 at 8:30 PM and that the petitioner was arrested on 01.07.2017 at 2:30 PM after an FIR was filed. The seized materials were produced before the Court on 02.07.2017. He further submits that the total weight of the seized items were said to be 71 kilograms in all but however, nothing was seized from the petitioner which can be seen from the charge sheet filed before the Court. The learned counsel further submits that the petitioner, in fact, at the time of his arrest was suffering from hypertension and for which, he was taken to the Community Health Centre at Sakawrdai on 01.07.2017 and he was discharged on 02.07.2017 after he was examined and medicines prescribed. 6. The learned counsel further submits that as the petitioner has no knowledge about the recovered items to be Ganja as suspected by the Investigating Agency, the petitioner deserves to be released on bail since the other 3 (three) co-accused persons were released on bail by the Trial Court. By referring to the order of bail granted by the Trial Court, Mr. Vanlalnghaka submits that the relevant provisions of Section 37 of the ND&PS Act, 1935 has not been considered by the Trial Court. Nevertheless, the 3 (three) co-accused were released on bail while bail was refused to the petitioner without assigning any reasons. He, therefore, submits that there should be parity among the accused persons in the consideration of bail for all. When bail was granted to the co-accused persons, the petitioner cannot be singled out. 7. The learned counsel further submits that the Investigating Officer, who conducted the investigation and submitted the charge sheet was present when the seizure were made and therefore, the entire investigation will be vitiated and in which case the petitioner should be released on bail forthwith. By referring to Standing Order No. 1/1989, issued by the Ministry of Finance, Department of Revenue, Government of India dated 13.06.1989, the learned counsel submits that the amount of the quantity of samples to be drawn for chemical test or examination has been prescribed in the Standing Order. By referring to Standing Order No. 1/1989, issued by the Ministry of Finance, Department of Revenue, Government of India dated 13.06.1989, the learned counsel submits that the amount of the quantity of samples to be drawn for chemical test or examination has been prescribed in the Standing Order. However, from the Test Memo prepared by the Police Officer concerned of Sakawrdai Sub-division it can be seen that the quantity of samples drawn clearly felt short of the prescription made by the Standing Order No. 1/1989. He submits that similar discrepancies can be noticed from the Forensic Science Report obtained from the Directorate of Forensic Science Laboratory at Aizawl, vide Report dated 14.07.2017. But however, irrespective of the finding that the Exhibited items examined by the Forensic Laboratory were found to be Ganja, the entire examination would stand vitiated in view of the Standing Order No. 1/1989. Thus, under the circumstances, it is a fit case for allowing the application for bail. 6. Appearing for the State, Mr. A.K Rokhum, the learned Public Prosecutor by referring to the written objection on the prayer for bail filed by the petitioner submits that the petitioner was arrested on 01.07.2017 at Sakawrdai in connection with the possession and transportation of 71 kilograms of Ganja from his Maruti Van bearing Registration No. MZ01-B/4196. As a result, a case was registered under Section 20 (b) (ii) (C) /29 (i) of the ND&PS Act. Upon completion of the investigation, Charge Sheet No. 3/2017 was filed before the learned Judge, Special Court under the ND&PS Act on 11.09.2017 after a prima facie case was found well established against all the accused persons including the petitioner. The report of the Forensic Science Laboratory also confirmed that the seized article were Ganja which is a prohibited substance under the ND&PS Act, 1985. He further submits that the amount of Ganja seized was a commercial quantity as defined by the relevant provision of the ND&PS Act. Therefore, having regard to the stringent provisions in so far as the release of an accused on bail is concerned, the bail application should be rejected. 7. The learned Public Prosecutor by referring to Section 20 (b) (ii) (C) of the ND&PS Act, 1985 submits that the petitioner has been rightly booked under the appropriate section of law. Therefore, having regard to the stringent provisions in so far as the release of an accused on bail is concerned, the bail application should be rejected. 7. The learned Public Prosecutor by referring to Section 20 (b) (ii) (C) of the ND&PS Act, 1985 submits that the petitioner has been rightly booked under the appropriate section of law. He submits that the petitioner is not only the owner of the Maruti Van, which was engaged in transporting the recovered items but he himself was driving the said vehicle. Therefore, the petitioner in transporting such banned substance would clearly be liable to be punished under the provision of the ND&PS Act, 1985. By referring to the statement recorded before the police under Section 161 of the CrPC, the learned Public Prosecutor submits that there is every reason to believe that the petitioner was aware of the fact that he was transporting Ganja in his vehicle. Therefore, if there existed reasonable grounds to believe that the petitioner had knowledge, there will be no ground for granting bail to the petitioner. 8. Mr. A.K Rokhum, the learned Public Prosecutor further submits that pursuant to the filing of the charge sheet, charge was framed by the Trial Court and trial has commenced. In fact, the trial is at the evidence stage. The grounds urged by the learned counsel for the petitioner can only be the grounds to be taken during trial and not for considering the bail application. Thus, he submits that the bail application should be rejected and dismissed. 9. I have heard the learned counsels for the parties and perused the materials available on record. It may be noticed that this Court vide Order dated 03.05.2018 had requisitioned the case record of the Trial Court. Upon perusal of the record, it is seen that the case is at the evidence stage. One prosecution witness was examined on 02.05.2018 and thereafter, the case was fixed for production of the second prosecution witness on 15.05.2018. On 15.05.2018, the case was adjourned on account of the learned Trial Judge being on leave whereafter, the case was fixed for 29.05.2018. 10. One prosecution witness was examined on 02.05.2018 and thereafter, the case was fixed for production of the second prosecution witness on 15.05.2018. On 15.05.2018, the case was adjourned on account of the learned Trial Judge being on leave whereafter, the case was fixed for 29.05.2018. 10. What should be the consideration of the Court on an application for bail submitted under Section 439 of the CrPC would be to see as to whether there are reasonable grounds to believe that the petitioner is not guilty of what he is charged with especially, when the same relates to a case under the ND&PS Act, 1985. The provisions provided under the ND&PS Act, 1985 are stringent and in order to consider bail, one will have to consider whether the conditions provided under Section 37 of the ND&PS Act, 1985 is satisfied. Section 37 of the ND&PS Act, 1985 may be reproduced below for ready reference:- "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." 11. As can be noticed, every offence punishable under the ND&PS Act, 1985 are cognizable offences. For an alleged in an offence involving commercial quantity, the accused person cannot be released on bail either on his own bond or otherwise, unless the Public Prosecutor is given an opportunity to oppose the bail application. As can be noticed, every offence punishable under the ND&PS Act, 1985 are cognizable offences. For an alleged in an offence involving commercial quantity, the accused person cannot be released on bail either on his own bond or otherwise, unless the Public Prosecutor is given an opportunity to oppose the bail application. Upon such opportunity given to the Public Prosecutor and the satisfaction of the Court that there are reasonable grounds to believe that the accused person is not guilty of the alleged offence and is not likely to commit offence while on bail, the accused can than only be considered to be released on bail. Coming to the present case, it may be noticed that 5 (five) bags containing items suspected to the Ganja was recovered from the vehicle of the petitioner. The petitioner although has taken the plea that he had no knowledge of the contents of the bags but the fact remains that the seized materials were transported in his vehicle which he himself drove. Further, the materials upon examination by the Forensic Laboratory, the same were found to be Ganja. Therefore, prima facie, it appears that the petitioner cannot claim ignorance of the contents of the bag and therefore, the same would attract Section 20 (b) (ii) (C) of the ND&PS Act, wherein the act of transporting such banned substance itself would be punishable. Therefore, the petitioner cannot be presumed to be not guilty at this stage, when the trial is in motion. The grounds taken by the learned counsel for the petitioner as regards the manner of the seizure, the quantity of samples drawn for examination by Forensic Science Laboratory against the Standing Order No. 1/1989 would only be good grounds to be taken in the trial proceeding. Bail granted by the Trial Court to the other co-accused persons as pointed out by the learned counsel for the petitioner though it may appear to be without proper consideration in terms of Section 37 of the ND&PS Act, 1985 but the same cannot be considered in the present bail application and it cannot be a ground to grant similar relief to the petitioner. 12. In that view of the matter, the application for Bail is rejected. 12. In that view of the matter, the application for Bail is rejected. Although this is a petition for bail but as the Trial Court records was requisitioned and has been perused, the learned Trial Court shall make an endeavour to complete the trial as expeditiously as possible. It is also made clear that the observations made herein above shall not influence the learned Trial Court in any manner for concluding the trial on merit. 13. Let the Trial Court Records be sent back forthwith.