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2022 DIGILAW 1768 (ALL)

Indrajeet Singh v. State of U. P.

2022-11-11

GAJENDRA KUMAR

body2022
JUDGMENT : 1. This bail application has been filed to enlarge the applicant on bail in Case Crime No. 127/2022, under section 8/20 of Narcotics Drugs and Psychotropic Substances Act,1985 Police Station-Geeda, District Gorakhpur. 2. According to the prosecution story, believing upon the information of the ‘Mukhbir’, during patrolling duty, police personnel went on the spot i.e. Tandua Toll Plaza, at Devariya-Gorakhpur By-pass and arrested all the three accused persons including the present applicant and recovered 151.450 kg 'Ganza' from the Truck bearing No.HR38Z7205, wherein, applicant was a driver. 3. Learned Counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present crime due to ulterior motive. It is further submitted that instant FIR has been lodged by the police is only with the a view to harass the applicant. The alleged truck was found at the public place and crowded area but neither any public witness has supported the prosecution story nor the Investigation Team has recorded any statements of any individual witnesses, who have supported the case. 4. Learned AGA appearing for the State has very vehemently opposed the prayer for the grant of bail of the applicant and submitted that applicant was arrested on the spot and he was involved in committing the aforesaid offence as has been narrated in the FIR. 5. Having heard learned counsel for the parties and after perusal of records, it is evident that there is no dispute that commercial quantity of Ganja is 20 kgs and recovered & seized total amount of Ganja is 151.45 Kgs in the present case, which is more than the commercial quantity, therefore, Section 37 of Narcotics Drugs and Psychotropic Substances Act is attracted in this case, which is in addition to the Section 439 of Cr.P.C. and mandatory in nature. 6. In view of Section 37 of N.D.P.S Act, before granting the bail for the offence under N.D.P.S Act twin conditions as provided under Section 37(1)(b)(i) and (ii) and have to be satisfied. For ready reference, Section 37 of NDPS Act, reads as follows:- “37. 6. In view of Section 37 of N.D.P.S Act, before granting the bail for the offence under N.D.P.S Act twin conditions as provided under Section 37(1)(b)(i) and (ii) and have to be satisfied. For ready reference, Section 37 of NDPS 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 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.] 7. On several occasions, the Hon’ble Apex Court has considered the issue relating to provisions of Section 37 of the N.D.P.S. Act and after wholesome treatment laid down guidelines in this regards, which would be useful to quote herein-below: “The expression 'reasonable grounds' has not been defined in the N.D.P.S. Act, but the Apex Court in the case of Union of India Vs. Rattan Mallik @Habul has settled the expression "reasonable grounds". Relevant paragraphs no. 12, 13 and 14 are quoted herein below: "12.It is plain from a bare reading of the nonobstante clause in the Section and sub-section (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 subsection (1) of Section 37 of the NDPS Act. Apart from 8 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". 13. 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 charged 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, 2007(7) SCC 798 ] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 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. 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." 8. In the recent judgment of Apex Court in case of State of Kerala Vs. Rajesh; AIR 2020 SC 721 , Hon’ble Apex Court again considered the scope of Section 37 of N.D.P.S Act as under: "20. In the recent judgment of Apex Court in case of State of Kerala Vs. Rajesh; AIR 2020 SC 721 , Hon’ble Apex Court again considered the scope of Section 37 of N.D.P.S Act as under: "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 CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante 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 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 11 addition to the limitations provided under the CrPC, 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 NDPS Act is indeed uncalled for." 9. The Apex Court in Union of India vs Prateek Shukla, AIR, 2021 SC 1509 has held that merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind. The provisions of Section 37 of the N.D.P.S. Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. The relevant paragraph nos. 11, 12 and 13 of the said judgment are reproduced herein under : "11. The provisions of Section 37 of the N.D.P.S. Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. The relevant paragraph nos. 11, 12 and 13 of the said judgment are reproduced herein under : "11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows: "18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises." 12. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises." 12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology "may not commit any offence" is an extraneous circumstances which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act. 13. For the above reasons, we are of the view that the High Court has mis-applied the law to the facts in arriving at a decision for the grant of bail to the respondent. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 7 May 2019. As a consequence, the bail which has been granted by the High Court to the respondent shall stand cancelled. The respondent shall surrender forthwith as a result of the cancellation of bail by the present order of this Court." 10. 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. Illicit trafficking is an organized crime and done adopting different modus operandi by the group of persons with their different role. 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. Illicit trafficking is an organized crime and done adopting different modus operandi by the group of persons with their different role. So far as plea of false implication is concerned, in my view, it is stereo typed defense raised in every case, where the accused are found in the possession of contraband. Experience shows that such statements are made almost in every case, therefore, such kind of plea of false implication without any basis is not liable to be accepted at this stage. 11. If the Court laid the emphasis upon the witnesses then common people do not dare to become witness against the criminals, as they have a lot of financial and political patronage available to them as well as muscle power. Public witnesses against the criminals and drug traffickers are always in threat, therefore police personnel cannot be seen within eye of suspicion particularly when there is huge recovery of contraband and there is no prior will of police personnel with the accused and they are discharging their official duty. Huge amount of 'Ganza', 151.450 kgs cannot be planted. 12. In the light of analysis of the case as mentioned above and considering the recovery of huge quantity of Ganja as mentioned above, coupled with the fact that applicant was apprehended at the spot and was having conscious and constructive possession over the recovered Ganja, I do not find any reasonable ground in terms of Section 37 of the N.D.P.S. Act to hold that applicant is not guilty of an offence and he is not likely to commit any offence while on bail. 13. It is made clear that this finding is for a limited purpose and is confined to the question of releasing the accused applicant on bail only. 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. 14. In view of the facts and circumstances of the case and on account of the reasons mentioned above, I do not find any good ground for enlarging the applicant on bail at this stage. 15. The bail application of the applicant is, accordingly, rejected.