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2022 DIGILAW 498 (ALL)

Chandra Shekhar Prasad Sah v. Union of India

2022-04-05

KRISHAN PAHAL

body2022
JUDGMENT : KRISHAN PAHAL, J. 1. Heard Mr. Pal Singh Yadav, learned counsel for the applicants and Mr. Digvijay Nath Dubey, learned counsel for the DRI and also perused the material placed on record. 2. Since the above three bail applications of the accused-applicants pertain to common recovery, therefore, I am deciding all these applications by a common judgment. 3. By means of the present applications, the applicant, Chandra Shekhar Prasad Sah (in C.M.B.A. No. 4961 of 2019), Baijnath Prasad Sah Kanoo (in C.M.B.A. No. 4952 of 2019) and Krishna Kumar (in C.M.B.A. No. 4934 of 2019) seek bail in Complaint Case No. 01 of 2017, under Sections 8(c)/20(b)(iii)(c)/25 of Narcotic Drugs and Psychotropic Substances Act, Police Station-D.R.I. Lucknow, District-Lucknow, during the pendency of trial. 4. Brief facts of the case, in a nutshell, are that the Deputy Director, Directorate of Revenue Intelligence, Lucknow received an information from Patna on 6.2.2017 that one Santro car bearing No. PB-23J-4874 had gone to Kathmandu, Nepal via Raxaul for taking a huge quantity of contraband i.e. charas on 3.2.2017 at 05:00 AM and is now returning via Gorakhpur-Lucknow and is bound to Haryana. A team was constituted by the Deputy Director, Directorate Of Revenue Intelligence, Lucknow on 6.2.2017 at 05:45 PM in his office to intercept the alleged car. On 7.2.2017 at about 04:30 AM, the alleged car was intercepted by the said team of DRI and found four persons, namely, Krishna Kumar and co-accused Pankaj Kumar, were sitting on driver and co-driver seat, respectively and on rear side Baijnath Prasad Sah Kanoo and Chandra Shekhar Prasad Sah were sitting. The statements of the accused-applicants were undertaken u/s 67 of NDPS Act wherein they confessed to have been carrying contraband charas in the cavity inside the car. It has further been alleged that the mandatory provisions of Sections 42 and 50 of NDPS Act were complied with and since the place of apprehending the accused was a public place, they were taken to a secured place i.e. in the office of DRI at about 06:00 AM. From the personal search of the accused, Krishna Kumar, Pankaj Kumar and Baijnath Prasad Sah Kanoo, their driving licence along with other documents were recovered. In all 102 bars of contraband charas were recovered from the cavities inside the car. Proper numbering of the said bars of contraband were done as P-1 to P-102. From the personal search of the accused, Krishna Kumar, Pankaj Kumar and Baijnath Prasad Sah Kanoo, their driving licence along with other documents were recovered. In all 102 bars of contraband charas were recovered from the cavities inside the car. Proper numbering of the said bars of contraband were done as P-1 to P-102. The said contraband was tested by a Drug Detection Kit and was found positive. The weight of each bar was from 500 to 590 grams. In all, three batches of contraband were made in which two batches are of 40-40 bars and one is of 22 bars. The sample of 24 grams each in duplicate were taken from each batch by extracting from each bar of contraband. The weight of total contraband was found 53.54 kilograms and after reducing the weight of the sample taken, the net weight was found 53.20 kilograms. It was also estimated that the price of the said contraband in the open market would be around Rs. 53,20,000/-. 5. Learned counsels for the applicants have vehemently argued that the applicants have been falsely implicated in the present case. They have nothing to do with the said offence. The sample of alleged contraband has not been drawn pursuant to the Standing Order No. 1/88 issued by the Central Government of India. There is no compliance of mandatory provision of Section 50 of NDPS Act. The alleged recovery is stated to have been made from the cavity inside the car and it cannot be assigned to the applicants. It is also argued that the accused persons Chandra Shekhar Prasad Sah and Baijnath Prasad Sah Kanoo, were only travelling as passengers in the said car and they had boarded the said car to go to work as labour at Lucknow. As per the chemical analysis report, the gross weight of the sample with plastic pouch was found to be 21.3 grams which casts doubt on the prosecution story as it is stated by them that they had sent the sample of 24 grams from each packets. The percentage of the charas in the said contraband was found only 10.5% which renders the contraband to be less than 6 kilogram only. The complaint has been filed by the complainant on 4.8.2017 i.e. after the expiry of the period of 90 days. The percentage of the charas in the said contraband was found only 10.5% which renders the contraband to be less than 6 kilogram only. The complaint has been filed by the complainant on 4.8.2017 i.e. after the expiry of the period of 90 days. Learned counsel has further stated that there was an altercation between the police personnel and the applicants and due to which, the police has implicated the applicants falsely in the present case with the help of DRI by planting the said contraband. There is no independent public witness to the said recovery to substantiate the prosecution version. 6. In support of his contention, learned counsel for the applicants has relied upon on the judgment of Supreme Court in the case of Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs. National Investigation Agency, Criminal Appeal No. 1525 of 2021 and SLP (Criminal) No. 6858 of 2021. The relevant part of the judgment is quoted herein-below: “8. The charges against the accused appellant are undoubtedly serious but the charges will have to be balanced with certain other factors like the period of incarceration which the appellant has undergone and the likelihood period within which the trial can be expected to be finally concluded. That apart, the appellant is 74 years of age. xxx xxx xxx 12. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the under-trials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time. The Courts would ordinarily be obligated to enlarge him on bail. 13. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.” 7. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice.” 7. Learned counsel for the applicants has also stated that the present applicants are in jail since five years i.e. on 7.2.2017 and there is no likelihood of the conclusion of trial in near future. In support of his contention regarding long incarceration, he has relied upon the judgment of Supreme Court in the case of Sanjiv Shankarrao Khade vs. Republic of India (CBI), Special Leave to Appeal (Crl.) No. 4265 of 2021 wherein the applicant was in jail for four years and eight months was enlarged on bail owing to long incarceration. 8. On the other hand, Sri Digvijay Nath Dubey, learned counsel for the D.R.I. has vehemently opposed the bail application and placed reliance on the judgment of Supreme Court in the case of Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, (2021) 10 SCC 100 wherein the matter of conscious possession of the contraband was decided on the basis of accused being traveling in the vehicle all the way from Nagaland to Uttar Pradesh and there was huge quantity of contraband found in the vehicle which was found sealed in it. The relevant part of the judgment is quoted herein-below: “19. The standard prescribed for the grant of bail is ‘reasonable ground to believe’ that the person is not guilty of the offence. Interpreting the standard of ‘reasonable grounds to believe’ a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that: 7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds.” The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the Accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the Accused is not guilty of the offence charged. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable.” 7......In Stroud's Judicial Dictionary, 4th Edn. p. 2258 states that it would be unreasonable to expect an exact definition of the word reasonable. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. [See Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar MANU/SC/0013/1987 : (1987) 4 SCC 497 and Gujarat Water Supply and Sewerage Board vs. Unique Erectors (Gujarat) (P) Ltd. MANU/SC/0203/1989 : (1989) 1 SCC 532 ] [...] 10. The word “reasonable” signifies “in accordance with reason.” In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. [See Municipal Corporation of Greater Mumbai vs. Kamla Mills Ltd. [MANU/SC/0459/2003 : (2003) 6 SCC 315 ] 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the Accused on bail that the court is called upon to see if there are reasonable grounds for believing that the Accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. (Emphasis supplied) 20. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the Accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. 25. We shall deal with each of these circumstances in turn. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed. 25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal vs. State of H.P. (2003) 7 SCC 465 : 2003 SCC (Cri) 1664, this Court held that: “19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. 21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. and Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. *** *** *** 26. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. *** *** *** 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.” 28. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India vs. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831, a two-Judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the “possession” of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-application of mind by the High Court.” 9. Learned counsel for the D.R.I. has also placed much reliance on the judgment of Supreme Court in the case of Union of India vs. Ram Samujh and Another, (1999) 9 SCC 429 . The relevant part of the judgment is reproduced hereunder: “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. 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 deathblow 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 Secretary, Union Territory of Goa, (1990) 1 SCC 95 : 1990 SCC (Cri) 65 as under: (SCC p. 104, Para 24) “24. With deep concern, we may point out that the organised 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 addiction 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. (ii) that he is not likely to commit any offence while on bail are satisfied. (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended. 9. In the result, the appeal is allowed. The impugned order dated 20-8-1998 passed by the High Court of Judicature at Allahabad, Lucknow Bench, releasing Respondent 1 Ram Samujh is quashed and set aside. Respondent 1 is directed to surrender.” 10. Learned counsel for the D.R.I. has also placed much reliance on the judgment of Supreme Court in the case of State of Kerala and Others vs. Rajesh and Others, AIR 2020 SC 721 . The relevant part of the judgment is quoted herein-below: “19. 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 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. 20. 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. 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 NDPS Act is indeed uncalled for.” 11. Learned counsel for the DRI has also submitted that all the accused persons were travelling in the alleged Santro car along with co-accused Pankaj Kumar and the contraband recovered was in their conscious possession having being concealed in the cavity inside the said car. There is no occasion to falsely implicate the accused-applicants by planting the alleged contraband. The applicants were arrested from the spot. The samples of the alleged contraband were taken in the presence of the applicants and independent witnesses. The samples taken from alleged contraband were timely sent for chemical analysis and the report dated 20.4.2017, which is on record, has confirmed the contraband to be Charas. 12. So far as the criminal history of accused, Chandra Shekhar Prasad Shah and Baijnath Prasad Kanoo are concerned, Sri Digvijay Nath Dubey, learned counsel for the DRI has relied upon the report of Embassy of India Kathmandu Nepal dated 15.03.2019 wherein it has been stated that both the accused were imprisoned for six months in Nepal on the charge of Hashish trafficking, therefore, the applicants do not deserve any indulgence. In case, the applicants are released on bail, they will misuse the liberty of bail. 13. The accused Chandra Shekhar Prasad Sah and Baijnath Prasad Sah Kanoo are the citizens of Nepal and the accused Krishna Kumar is the resident of Bihar and there is every likelihood of them absconding from trial. The trial could not be proceeded for the last two years due to the prevalent Covid-19 situation. It is also quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. The trial could not be proceeded for the last two years due to the prevalent Covid-19 situation. It is also quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of the Apex Court decided in Anil Kumar Yadav vs. State (N.C.T.) of Delhi and Another, 2018 (12) SCC 129 is very much applicable to the present case, wherein it has been opined that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail. Further, nothing has been brought on record to substantiate the allegation of false implication of the applicants or as to what animosity the personnel of the department had with them. 14. Considering the facts and circumstances of the case, the nature of offence, recovery of heavy contraband, complicity of accused, their criminal antecedents as well as the rival submissions advanced by the learned counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicants on bail. 15. Accordingly, the bail applications of the applicant are rejected. 16. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. 17. However, it is directed that every endeavor shall be made by the trial court to conclude the trial expeditiously, if there is no other legal impediment, within a period of one year from the date of production of a certified copy of this order.