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2021 DIGILAW 823 (ALL)

Aslam v. State of U. P.

2021-08-06

NAVEEN SRIVASTAVA

body2021
JUDGMENT : 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. By means of this application the applicant who is involved in Case Crime No.232 of 2021, under Section 8/20 N.D.P.S. Act, Police Station Bilaspur, District Rampur, is seeking enlargement on bail during pendency of trial. 3. In nutshell, the facts which led to the prosecution of accused are that on 14.06.2021, informant, sub-Inspector, Sanjay Kumar lodged first information report at Police Station Bilaspur, District Rampur against one accused, Aslam alleging inter alia that on 14.06.2021 when he alongwith other police personnel were busy in checking of vehicles, he received information through informer that some persons having illegal and suspicious goods, can be arrested if quick action be taken. On such information, he after giving information to the higher officers, proceeded for the place of occurrence alongwith other police personnel and they reached at village Alinagar. Thereafter, by using the necessary force, the police team arrested the applicant on the spot. On questioning, he disclosed about the transportation of illegal Charas. On search of bag, 1.5 kg. of Charas was recovered from accused, Aslam and from the bag of accused, Farid 2280 Alpramed tablet, Avil injection and 1 kg. Charas from the possession of three persons, as such total 2.5 kg. Charas, 2280 Alpramed tablet, Avil injection, three syringe have been recovered in this case. The accused could not show the authorization of keeping the same. On the basis of aforesaid recovery, a case was registered against the accused at Case Crime No.232 of 2021, under Section 8/20 N.D.P.S. Act, Police Station Bilaspur, District Rampur. 4. Learned counsel for the applicant argued that as per prosecution case, total 2.5 kg. illegal Charas is said to have been recovered in this case, out of which 1.5 kg. Charas was recovered from the bag of applicant, Aslam and 1 kg. was recovered from accused, Wasim. It is next submitted that Investigating Officer has not followed the procedure of Narcotic Drugs and Psychotropic Substances Act (for short the "N.D.P.S. Act"), the alleged recovery has been planted and accused has been falsely implicated. It is submitted that the applicant may be released on bail. 5. Per contra, learned A.G.A. appearing on behalf of the State vehemently opposed the aforesaid statement of learned counsel for the applicant by contending that recovered 2.5 kg. It is submitted that the applicant may be released on bail. 5. Per contra, learned A.G.A. appearing on behalf of the State vehemently opposed the aforesaid statement of learned counsel for the applicant by contending that recovered 2.5 kg. Charas in this case is much more than commercial quantity, out of which 1.5 kg. Charas was recovered from the possession of the applicant. There is no enmity between the applicant and police team, therefore, allegation of false implication upon the applicant is without any basis and against the evidence on record. The amount which has been recovered from the possession of the accused cannot be falsely planted. The mandatory requirement as provided under the N.D.P.S. Act has been followed by the officer concerned. The applicant is also involved in five other cases i.e. Case Crime No.141 of 2006, involving in N.D.P.S. Act, Case Crime No.1569 of 2011, under Sections 395, 397 I.P.C., Case Crime No.403 of 2017, involving in N.D.P.S. Act, Case Crime No.4018 of 2018, involving in N.D.P.S. Act and Case Crime No.139 of 2019, under Section 8/20 N.D.P.S. Act, Police Station Bilaspur, District Rampur, therefore, the bail application of the applicant is liable to be rejected. 6. There is no dispute that commercial quantity of Charas is 1 kg., recovered and seized total 2.5 kg. of Charas and out of which 1.5 kg. has been recovered from the applicant, Aslam is more than commercial quantity, therefore, provisions of Section 37 of N.D.P.S. Act is attracted in this case, which is in addition to Section 439 of Cr.P.C. and mandatory in nature. In view of Section 37 of N.D.P.S. Act before granting bail for the offence of N.D.P.S. Act till conditions as provided Section 37 (1) (b) (i) (2) had to be satisfied. Section 37 of N.D.P.S. Act is quoted as below:- "37. In view of Section 37 of N.D.P.S. Act before granting bail for the offence of N.D.P.S. Act till conditions as provided Section 37 (1) (b) (i) (2) had to be satisfied. Section 37 of N.D.P.S. Act is quoted as below:- "37. Offences to be cognizable and non-cognizable.--(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." 7. On several occasion, the Apex Court has considered the issue relating to provision of Section 37 of N.D.P.S. Act and in recent decision of Apex Court in State of Kerala Vs. Rajesh reported in AIR 2020 SC 721 . Paragraph nos.20 and 21 of the aforesaid judgment is extracted below:- "20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C., but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.P.C. or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the N.D.P.S. Act is indeed uncalled for." 8. The provisions of Section 37 of the N.D.P.S. Act provide that the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There is specific statutory presumption in relation to contraband that comes within the ambit of N.D.P.S. Act. In view of Section 54 of the N.D.P.S. Act presumption shall be drawn against the accused unless and until the contrary is proved. The expression "unless and until the contrary is proved", clearly imposes the burden of proving that possession of prohibited substance is legal on the accused himself. 9. Further, no material has been brought on record by the applicant to show that there was any prior ill-will or enmity of the applicant with the police personnel concerned. 10. Illicit trafficking is an organized crime and are done adopting different modus operandi by a group of persons with their different role. So far as plea of false implication is concerned, in my view, it is a stereo typed defence raised in every case, where accused are found in possession of contraband. In such a situation, this kind of plea of false implication without any basis is not liable to be accepted at this stage. So far as plea of false implication is concerned, in my view, it is a stereo typed defence raised in every case, where accused are found in possession of contraband. In such a situation, this kind of plea of false implication without any basis is not liable to be accepted at this stage. The devastating effects of narcotic drugs and psychotropic substance on any person who comes to its touch are well known. 11. It is also well settled that a proper administration of the criminal justice delivery system, requires balancing the rights of the accused and the prosecution. 12. Undoubtedly rights of the accused are important, but equally important is the societal interest for bringing the offender to book and for the system to send right message to all in the society. Undue sympathy for offender would be more harm to justice system to undermine the public confidence in the efficacy of law. 13. In the light of the above-mentioned facts and considering the recovery of 1.5 kg. Charas, coupled with the fact that the applicant was apprehended from the spot, and was having conscious and constructive possession over the recovered Charas, I do not find any reasonable ground in terms of Section 37 of the N.D.P.S. Act to hold at this stage that applicant is not guilty of an offence and he is not likely to commit any offence while on bail. 14. It is also made clear that the Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. 15. In view of the above, I do not find any good ground for enlarging the applicant on bail at this stage. The bail application of the applicant is accordingly, rejected.