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2022 DIGILAW 759 (ALL)

Mukesh Kumar v. Union of India

2022-05-12

KRISHAN PAHAL

body2022
JUDGMENT : 1. Heard Sri Parmanand Gupta, learned counsel for applicant and Sri Digvijay Nath Dubey, learned counsel for D.R.I. 2. Applicant seeks bail in NDRI Crime No. 03 of 2019, U/S 8/20/25/28 of Narcotic Drugs & Psychotropic Substances Act, Police Station-D.R.I., Lucknow, District-Lucknow, during the pendency of trial. PROSECUTION STORY:- 3. On the basis of an intelligence input developed by Vaibhav Kumar, Assistant Director, DRI, Lucknow, two persons namely, Mukesh Kumar and Arjun Singh were said to be transporting huge quantity of narcotic substance (ganja) in a truck no. UP 86 T 5380 being carried in a especially built cavity and is destined to reach Hathras via Maihar, Nagod, Naraini, Banda, Mahoba, Urai, Kanpur and Lucknow. A team was formed by him. Two witnesses were taken along by the team and the said truck was intercepted by the team at about 1.30 pm on 27.2.2019. The said truck was being driven by the applicant Mukesh Kumar and one another person Arjun Singh was arrested seated beside him in the cabin. The apprehended two persons at Nawabganj Toll Plaza confessed to having carrying narcotic drug in the said truck. Compliance of Sections 49 and 50 of N.D.P.S. Act was made and the said truck was taken to the Revenue Directorate Zonal Office at Lucknow. The search of the truck was conducted in the presence of Gazetted Officer, Sri Atul Govil and the witnesses. Photographs were also taken of the said truck. From the personal search of the accused persons, many documents were recovered, but a driving license was recovered from the possession of the co-accused Arjun Singh. From the specially created cavity in the truck, cubic brown packets packed with cello tape, which smelled of some narcotic drug were found. In all, 69 packets were recovered from the said cavity. Each packet weighed between 5-6 kgs and the total weight of the narcotic material, Ganja was found 357.78 kgs. The packets were marked P1 to P69 and was divided into two lots of 40 and 29 packets each. 2-2 samples each were drawn from the lots after extracting some narcotic from each packet and sealed at the spot. Each packet weighed between 5-6 kgs and the total weight of the narcotic material, Ganja was found 357.78 kgs. The packets were marked P1 to P69 and was divided into two lots of 40 and 29 packets each. 2-2 samples each were drawn from the lots after extracting some narcotic from each packet and sealed at the spot. The applicant and the co-accused persons confessed regarding taking of the said narcotics on the directions of the owner of the truck and fetched the said narcotic from Raigarh, Orissa and was destined to reach Hathras enroute Maihar, where 25 packets were dropped of the 94 packets taken from Orissa. 4. The recovered contraband after being calculated @ Rs. 50,000/-per kg in the grey market was found to be worth Rs. 53,66,700/-. The said contraband was confiscated by the department and the proceedings were completed by 11.30 pm on 27.2.2019. RIVAL CONTENTIONS:- 5. Learned counsel for applicant has stated that as per the seizure memo, the applicant is the driver but no driving license has been recovered from his possession. Rather one driving license has been recovered from the possession of co-accused Arjun Singh instead. This falsifies the prosecution story. Learned counsel has further stated that the sample has been sent to the forensic lab on 6.3.2019 and the report has come on 29.3.2019. The sample has been found to be 19.8 grams which is less than the stated 24 grams. There is non-compliance of the Standing Order No. 1/88 of the N.C.B. It is also stated that the applicant is an illiterate person. The charge sheet has been filed. The applicant is in jail for about three years and the charge has not been framed as yet. 6. Learned counsel for applicant has further stated that the owner of the truck has not been made an accused and the applicant has been implicated as a scapegoat. Learned counsel has further stated that the Gazetted Officer, in whose presence the search has been undertaken, was a party of the recovery team and thus, has to be construed as an interested witness. The said search becomes inadmissible and the investigation becomes tainted on this account also. 7. Learned counsel has further stated that the Gazetted Officer, in whose presence the search has been undertaken, was a party of the recovery team and thus, has to be construed as an interested witness. The said search becomes inadmissible and the investigation becomes tainted on this account also. 7. Learned counsel for the applicant placed reliance on the view expressed by the Apex Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 , where it was held that a confessional statement under Section 67 of the N.D.P.S. Act will not be admissible in evidence. Learned counsel has further stated that the applicant was an employee of co-accused Ram Prasad and working at Mainpuri as labourer to drive a tractor for a payment of Rs. 6,000/-per month and has a young and marriageable sister to be taken care of. 8. Per contra, learned counsel for D.R.I. has vehemently opposed the bail application on account of C.D.R. of the mobile of applicant and co-accused Arjun Singh, wherein it has been found that they were in regular touch with the traffickers, namely Ram Prakash, Sreedam Adhikari, Raju and others. The said details have been filed in paragraph 11 of the counter affidavit filed by the department. The applicant is said to be using two mobile sets having three mobile numbers 7078257589, 7618611194 and 8445332549. Learned counsel has further stated that the forensic report received from the Central Revenue Control Laboratory (C.R.C.L.) New Delhi, has found the said contraband to be ganja. Learned counsel has further stated that owing to the Covid conditions, the work at the trial court was at a standstill for the last two years. He has further stated that learned counsel for applicant are not co-operating in the trial. 9. Learned counsel for D.R.I. has placed reliance on the judgement of the Apex Court in the case of Megh Singh vs. State of Punjab, (2003) 8 SCC 666 , wherein the Court held that a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. 10. It does not extend to search of a vehicle or a container or a bag, or premises. 10. Learned learned counsel for D.R.I. has placed reliance in the case of Makhan Singh vs. State of Haryana, (2015) 12 SCC 247 , wherein the Apex Court has held that compliance with Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc., which the accused may be carrying ought to be searched. CONCLUSION:- 11. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In State of Kerala Vs. Rajesh and others, AIR 2020 SC 721 , the Supreme Court has held that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that person is not likely to commit any offence while on bail. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. 12. Therefore,, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Apex Court in Anil Kumar Yadav vs. State (N.C.T.) of Delhi and another, (2018) 12 SCC 129 , is 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. 13. The recovered contraband is heavy in quantity. There is compliance of the mandatory provision of N.D.P.S. Act. The sample has been taken before the concerned Magistrate, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the DRI. 13. The recovered contraband is heavy in quantity. There is compliance of the mandatory provision of N.D.P.S. Act. The sample has been taken before the concerned Magistrate, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the DRI. The twin conditions enshrined in Section 37 N.D.P.S. Act have not been fulfilled and it cannot be opined that the applicant has not committed the offence. The offence is against the society as a whole. 14. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicant on bail. 15. The bail application is, accordingly, rejected. 16. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order. 17. 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.