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2021 DIGILAW 810 (PAT)

Suleman Mian v. State of Bihar

2021-08-11

AHSANUDDIN AMANULLAH, MADHURESH PRASAD

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MADHURESH PRASAD, J.:– Re.: Interlocutory Application No. 2014 of 2018 The matter has been heard via video conferencing. 2. Heard Mr. Nafisuzzoha, learned counsel for the appellant-petitioner; Dr. Mayanand Jha, learned Additional Public Prosecutor (hereinafter referred to as the ‘APP’) for the State and Mr. Manoj Kumar Singh, learned counsel for the Union of India. 3. The appellant-petitioner has been convicted under Section 20 (b) (ii) (c) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS’ Act) and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs 1,00,000/-. 4. Earlier, prayer for grant of bail and suspension of sentence made on behalf of the appellant-petitioner was rejected on 20.06.2017. Considering more than four years custody of the appellant-petitioner, this Court had directed the office to take steps for preparation of paper book and listing the case for final hearing preferably within eight months. The appellant-petitioner now has remained in custody for more than eight years. 5. On secret information regarding contraband substance being kept in the appellant’s house, for being transported in the night, the Assistant Commandant of Sashastra Seema Bal has reached the appellant-petitioner’s house. From a hennery in the appellant-petitioner’s residence, six packets have been seized containing total 4.5 Kgs. of Charas. 6. It is submitted by the learned counsel for the appellant-petitioner that the mandatory procedure under Section 42 of the NDPS Act has been given a go bye. The officer, on receiving information regarding storage of contraband substance in the appellant’s house and before proceeding for such seizure, was required to take down such information in writing. The Assistant Commandant (P. W. 5), however, in his cross-examination, has not stated regarding the information being taken down in writing. He has only stated about making a note in some general diary. There is also violation of Section 42 (2) of the NDPS Act, since no information has been sent to his immediate superior officer. In view of violation of these mandatory procedures, the entire prosecution case becomes doubtful. The “Qabulnama” (confessional statement), obtained in custody, could not have been relied upon by the Court as “information” under Section 67 of the NDPS Act. Appellant-petitioner’s ownership of the residence has also not been established at the trial. 7. In view of violation of these mandatory procedures, the entire prosecution case becomes doubtful. The “Qabulnama” (confessional statement), obtained in custody, could not have been relied upon by the Court as “information” under Section 67 of the NDPS Act. Appellant-petitioner’s ownership of the residence has also not been established at the trial. 7. The trial Court’s judgment has also recorded that prosecution has not adduced evidence to prove the charge under Section 23 (c) of the NDPS Act or that the seized Charas has been imported from Nepal for the purpose of selling. The trial Court, in fact, has acquitted the appellant of the offence under Section 23 (c) of the NDPS Act. 8. As against sentence of rigorous imprisonment for twelve years, the appellant-petitioner has already remained in custody for more than eight years. In spite of this Court’s earlier direction dated 20.06.2017 for preparation of paper book and listing the case for final hearing preferably within eight months, till date, the matter has not been listed for final hearing. There is no likelihood of the same being listed, much less taken up, in the near future. 9. Appellant-petitioner’s counsel submits that the aforesaid submissions are sufficient to arrive at a prima facie conclusion that the appellant-petitioner is not guilty of the alleged offence. There is nothing on record to suggest that the appellant-petitioner is likely to commit any offence while on bail. The Court has also given an opportunity to the learned APP to oppose the prayer for bail. The appellant-petitioner, therefore, is entitled to bail upon consideration of the aforesaid facts in terms of Section 37 of the NDPS Act. Referring to decision of the Apex Court in the case of Dadu alias Tulsidas Vs. State of Maharashtra, reported in (2000) 8 Supreme Court Cases 437, he submits that prayer for bail has to be considered strictly subject to the conditions spelt out in Section 37 of the NDPS Act. This Court, therefore, considers it useful to reproduce paragraphs 28 and 29 of the judgment of the Apex Court in the case of Dadu alias Tulsidas (supra) which reads as follows:— “28. This Court in Union of India Vs. Ram Samujh held that the jurisdiction of the court to grant bail is circumscribed by the aforesaid section of the Act. This Court, therefore, considers it useful to reproduce paragraphs 28 and 29 of the judgment of the Apex Court in the case of Dadu alias Tulsidas (supra) which reads as follows:— “28. This Court in Union of India Vs. Ram Samujh held that the jurisdiction of the court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which he is convicted and he is not likely to commit any offence while on bail and during period of suspension of the sentence. The Court further held: (SCC pp. 431-32, paras 6-8) “6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:— ‘Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.’ (emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier Vs. Chief Secy., Union Territory of Goa as under: (SCC p.104, para 24) ‘24. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier Vs. Chief Secy., Union Territory of Goa as under: (SCC p.104, para 24) ‘24. With deep concern, we may point out that the organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addition among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’ 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied.” 29. Under the circumstances the writ petitions are disposed of by holding that:— (1) Section 32-A does not in any way affect the powers of the authorities to grant parole. (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act. (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment.” 10. The learned APP and the learned counsel for the Union of India have opposed the prayer for bail. They have submitted that recovery of commercial quantity of Charas has been made from the hennery situated in the appellant-petitioner’s residence. The search and seizure is supported by the official witnesses and appellant-petitioner himself has given his statement (Qabulnama) under Section 67 of the NDPS Act. They have submitted that recovery of commercial quantity of Charas has been made from the hennery situated in the appellant-petitioner’s residence. The search and seizure is supported by the official witnesses and appellant-petitioner himself has given his statement (Qabulnama) under Section 67 of the NDPS Act. The parameters for consideration of bail and sentence, pending appeal, laid down by the Apex Court in the case of Dadu alias Tulsidas (supra), however, is not denied or disputed. 11. On consideration of the rival submissions, this Court is inclined to accept the submission advanced by the learned counsel for the appellant-petitioner and allow the prayer for grant of bail and suspension of sentence, pending appeal. Accordingly, let the sentence of the appellant-petitioner be suspended and he be released on bail, during pendency of the appeal, on his furnishing bonds of Rs. 25,000/- (twenty five thousand) with two sureties of the like amount each to the satisfaction of Additional Sessions Judge I-cum-Special Judge, NDPS Act, East Champaran at Motihari in NDPS Case No 155 of 2013 arising out of Raxaul PS Case No. 301 of 2013 subject to the condition that one of the bailors shall be a close relative of the appellant-petitioner. 12. Realization of fine shall also remain stayed during pendency of the appeal. 13. Interlocutory Application No. 2014 of 2018 stands disposed of.