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2020 DIGILAW 743 (ALL)

Sandeep @ Kuldeep v. State of U. P.

2020-03-06

JAYANT BANERJI

body2020
JUDGMENT : 1. This bail application has been filed to enlarge the applicant on bail in Case Crime No. 224 of 2019, under Sections 18/20 of Narcotic Drug and Psychotropic Substances Act,1985 N.D.P.S. Act, Police Station Site-5, Greater Noida, District Gautambudh Nagar. 2. The FIR dated 31.8.2019 has been lodged against the applicant and two others alleging recovery of 150 Kg 'Ganja' in 30 bags from the vehicle in which the applicant was traveling. 3. A perusal of the FIR reveals that the first informant, the Station House Officer of P.S. Greater Noida was patrolling the area falling under him in his official vehicle along with other police personnel. On reaching the Sirsa roundabout, a vehicle coming from the roundabout was stopped and checked which was being driven by one Susheel who said that the vehicle is loaded with coconuts. Since the season was not of coconuts, the matter became suspect. Two persons jumped off from the rear side of the vehicle and ran into the jungle in the direction of a flour mill. They were chased by two policemen but they could not be caught. The driver revealed his name as Bitti alias Suneel son of Satyaveer, resident of village Ghanghola, P.S. Site-5, District Gautam Budh Nagar and said that the vehicle was hired by him and it had bags of coconut and below the coconuts bags, packets of illicit 'Ganja' were present. Thereafter, the driver was informed that he could have his physical search done by a Magistrate or Gazetted Officer who could be called by the informant over phone. The driver said that since you have caught me and when full information has been disclosed to you, then you can search me physically as well as the vehicle. Then, the police personnel searched each other to confirm whether any of them had any illicit Ganja. The Station Officer spoke to Circle Officer who said that he was busy with official work. The Gram Pradhan, Sirsa, Sri Prakash was also spoken over mobile about the incident but he also expressed his inability to come. Therefore, under the provisions of Section 50 of the N.D.P.S. Act, the consent letter was got prepared which was signed and then physical search of the vehicle was done. The Gram Pradhan, Sirsa, Sri Prakash was also spoken over mobile about the incident but he also expressed his inability to come. Therefore, under the provisions of Section 50 of the N.D.P.S. Act, the consent letter was got prepared which was signed and then physical search of the vehicle was done. Under five bags of coconuts, 30 packets of illicit 'Ganja' were recovered and to weigh the 'ganja' the Head Constable was sent to village Sirsa to get a weighing scale. In the meantime, the members of the public moving on the road were asked to be witnesses of the incident. However, none of them agreed. The Head Constable returned with an electronic weighing scale and every packet was weighed. Each packet weighed 5 kg and a total of 150 kg 'ganja' was recovered. The driver of the vehicle was asked to tell the names of the persons who had jumped off the vehicle and run away. The names of his elder brother, Sandeep son of Satyaveer (the applicant), and of one Kullan alias Gulab Singh son of Suradpal Singh were disclosed by him. He said that the three of them were taking the narcotic substance to Ghanghola. The accused was informed about his offence under Section 18/20 of the N.D.P.S. Act and was arrested at 23.30 hours. From the recovered material, by way of sample, 100 gm of 'Ganja' were taken and kept in a polythene and sealed in a cloth after affixing stamp. The sample of the stamp was made and the rest of the recovered material was recorded and seized. During arrest, the orders and directions of the Human Right Commission and the Hon'ble Supreme Court were followed. The arrest memo was prepared at the site and was dictated by the Station Officer to the Senior Sub Inspector in the light of a torch on the bonnet of the vehicle. The information of arrest would be given as stated by the accused after reaching the police station. The memo was read out to the other police personnel who made their signatures thereon and a carbon copy of the memo was given to the accused. 4. Sri B.S. Tripathi, Advocate, holding brief of the learned counsel for the applicant has contended that the applicant was not arrested on the spot and no narcotic substance was recovered from his possession. 4. Sri B.S. Tripathi, Advocate, holding brief of the learned counsel for the applicant has contended that the applicant was not arrested on the spot and no narcotic substance was recovered from his possession. It is contended that the mandatory provisions of Section 42 and 50 of the NDPS Act were not complied with. Learned counsel has referred to the Standing Instruction No.1 of 1988 of the Central Government, which, however, has not been produced for reference before the Court. It is his contention that only 100 gm of 'Ganja' as sample was taken, whereas the mandate of Standing Instruction No. 1 of 1988 is that where there are several packets of narcotic seized, the sample has to be taken from each individual packet and sent for analysis. The analysis has to be done by testing kits approved by the United Nations. It is contended by the learned counsel for the applicant that the co-accused in the matter namely Kullan @ Gulab Singh has already been enlarged on bail by this Court by means of an order dated 22.10.2019 in Criminal Misc. Bail Application No. 43996 of 2019. 5. It is stated that since the mandate of Standing Instruction No. 1 of 1988 has not been complied with, the recovery of 150 kg of 'Ganja' becomes suspicious and the applicant is entitled to be enlarged on bail. In support of his contention, learned counsel has referred to paragraph nos. 11, 12 and 13 of the judgment of the High Court of Rajasthan in Netram Vs. State of Rajasthan 2014 Criminal Law Report 163., paragraph nos. 10 and 16 of the judgment of the Supreme Court in the matter of Union of India Vs. Balmukund 2009 (12) SCC 161 the judgment of the High Court of Rajasthan in Om Praksh Bishnoi Vs. Union of India 2019 SCC Online Rajasthan 1280, and the order dated 22.5.2018 passed by this Court in the case of Manoj Chaudhari in Criminal Misc. Bail Application No. 16781 of 2018. 6. Sri Abhishek Singh, learned counsel, brief holder for the State, opposing the bail application, has stated that the charge sheet has already been filed in the trial court against the applicant. It is contended that as far as compliance of Section 42 and 50 of the N.D.P.S. Act is concerned, the consent letter of the applicant is the part of the case diary. It is contended that as far as compliance of Section 42 and 50 of the N.D.P.S. Act is concerned, the consent letter of the applicant is the part of the case diary. He has further contended that the issues that are being raised by the applicant before this Court in support of the bail application, are to be looked into by the trial court during the trial. He contends that given the fact that the recovery of 'Ganja' from the possession of the accused-person exceeds the commercial quantity, strict view may be taken by the Court with regard to bail. 7. Though, admittedly, the applicant was not arrested on the spot, but he was named by his brother, the driver of the vehicle, Bitti alias Suneel. No material has been placed on behalf of the applicant to show whether during investigation, it emerged that the applicant was not present on the spot. In any view of the matter, the presence of the applicant or otherwise at the spot, false implication or not, both are disputed questions of fact. Whether the provisions of Standing Instruction No. 1 of 1988 were duly complied with or not while taking samples of the narcotic drug on the recovery being made from the vehicle is again a question of fact that can be looked into during trial. Further, it is no longer res-integra that compliance of section 50 of the N.D.P.S. Act is a subject matter of trial. 8. The judgment and orders in the case of Netram (supra), Union of India Vs. Balmukund (supra) which have considered Standing Instruction No. 1 of 1988, would not be applicable in the instant application. The judgment in the matter of Netram and Balmukund were delivered in Criminal Appeals that arose out of the judgments of conviction and acquittal respectively and not in bail applications. In those appeals the testimony of witnesses and evidence on record of the trials were noticed. Therefore, the applicant cannot derive any benefit from those judgments. 9. The order of the Rajasthan High Court in the case of Om Praksh Bishnoi and of this Court in Manoj Chaudhari are orders passed on the third Bail Application and on the first bail application respectively of the respective applicants therein granting bail. Reliance in these two orders has been placed on the Standing Instruction No. 1 of 1988 issued by the Narcotic Bureau, New Delhi. Reliance in these two orders has been placed on the Standing Instruction No. 1 of 1988 issued by the Narcotic Bureau, New Delhi. However, with due respect, I am unable to treat these two orders in Om Praksh Bishnoi and Manoj Chaudhari as precedents for the purpose of adjudication of the present bail application on merits. 10. Section 37 of the N.D.P.S. Act 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”. 11. Liberal approach in the matter of grant of bail in the cases covered under the provisions of Section 37(1)(b) of the N.D.P.S. Act is not called for and the provisions require strict and mandatory compliance by the court where a person is accused of an offence punishable for offences under Section 19 or section 24 or Section 27A and also for the offences involving commercial quantity. In matters under the N.D.P.S. Act, a reverse onus is placed on the accused to substantiate that he is not guilty of the offences charged. The principles with regard to bail in such cases are no longer res nova, as held in the judgment of this Court dated 5.3.2020 passed in Crl. Misc. Bail Application No. 3515 of 2020 ( Shailendra Kumar Gupta @ Shailu Vs. State of U.P.). In the notification specifying small quantity and commercial quantity as published in the Gazette of India dated 19.10.2001, the commercial quantity of 'ganja' is shown at sl. no. Misc. Bail Application No. 3515 of 2020 ( Shailendra Kumar Gupta @ Shailu Vs. State of U.P.). In the notification specifying small quantity and commercial quantity as published in the Gazette of India dated 19.10.2001, the commercial quantity of 'ganja' is shown at sl. no. 55 as 20 kg. The amount allegedly recovered from the vehicle is 150 kg. It is reiterated that whether the provisions of Standing Instruction No. 1 of 1988 were duly complied with or not while taking samples on recovered of the narcotic drug made from the vehicle, is a question of fact, that can be looked into during trial. The Court would be circumspect to look into disputed questions of fact in cases relating to bail in view of provisions of Section 37(1)(b) of the N.D.P.S. Act where testimony of witnesses is yet to be recorded and evidence is yet to be considered. 12. Though, as it appears from the perusal of the bail order enclosed as Annexure No.2 to the affidavit filed in support of the bail application, the co-accused Kullan alias Gulab Singh, who is also alleged to have jumped off the vehicle and run away, has been enlarged on bail by order of this Court dated 22.10.2019 in Criminal Misc. Bail application No. 43996 of 2019. However, with all due respect, I am not inclined to subscribe to the view taken by the learned Judge. In matters under the N.D.P.S. Act, as observed above, since a reverse onus is placed on the accused in view of Section 37(1)(b), no liberal view can be taken. 13. On perusal of the available record before this court, noIt is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. satisfaction can be recorded that there are reasonable grounds for believing that the applicant is not guilty of such offence. Moreover, the mere alleged fact that the applicant has no criminal history, does not, under the facts of the case, lead to a satisfaction that he is not likely to commit any offence while on bail. This bail application, is, accordingly, rejected. 14. Moreover, the mere alleged fact that the applicant has no criminal history, does not, under the facts of the case, lead to a satisfaction that he is not likely to commit any offence while on bail. This bail application, is, accordingly, rejected. 14. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.