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2024 DIGILAW 1773 (GAU)

Jitender Sah S/o Mangal Sah v. State Of Nagaland

2024-12-13

MANISH CHOUDHURY

body2024
JUDGMENT : The present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [‘the BNSS, 2023’, for short] is preferred by the accused-petitioner viz. Sri Jitender Sah seeking his release on bail in connection with Special Case no. 37 of 2024, arising out of South Police Station Kohima Case no. 34/2024. The crime case, South Police Station Kohima Case no. 34/2024 has been registered for the offences under Sections 22/27A/29[1] of the Narcotic Drugs and Psychotropic Substances Act, 1985 [‘the NDPS Act’, for short] read with Section 3[5] of the Bharatiya Nyaya Sanhita, 2023 [‘the BNS 2023’, for short]. 2. On 22.07.2024, on the basis of Suo Moto First Information Report [FIR] lodged by one Ketoulikho Ngukha, ABSI before the Officer In-Charge, South Police Station Kohima, the crime case, South Police Station Kohima Case no. 30/2024 came to be registered for the offences under Section 27[a][b]/21[a] of the NDPS Act r/w Section 35 of the BNS, 2023. In the said FIR, it was alleged that on 22.07.2024, a combined team of Police personnel of South Police Station Kohima apprehended 3 [three] persons from New Police Reserve, Phesama along with suspected heroin powder. From the possession of the 3 [three] apprehended accused persons viz. [i] Manjoi Salim; [ii] Longtilong Longkumer; and [iii] Imlimanen Aier, suspected heroin powder weighing [0.76 grams + 0.25 grams + 0.55 grams + 0.77 grams = 2.33 grams] were recovered. In connection with the said South Police Station Kohima Case no. 30/2024, the present accused-petitioner and one Jhunu Kumar were also arrested. 3. When the present accused-petitioner and Jhunu Kumar were in custody in connection with South Police Station Kohima Case no. 30/2024, the present accused-petitioner and Jhunu Kumar were shown arrested in connection with another case, South Police Station Kohima Case no. 34/2024 registered on 03.08.2024, based on an FIR lodged by one Sri Sobu Rengma, an Assistant Sub-Inspector of Police attached to South Police Station Kohima and the Investigating Officer [I.O.] of the case, South Police Station Kohima Case no. 30/2024. 4. In the FIR lodged by Sri Sobu Rengma, ASI, it is inter-alia stated that while he was investigating South Police Station Kohima Case no. 30/2024, necessary leads from reliable sources were received with regard to involvement of the present accused-petitioner as the main trafficker and supplier of the contraband. 30/2024. 4. In the FIR lodged by Sri Sobu Rengma, ASI, it is inter-alia stated that while he was investigating South Police Station Kohima Case no. 30/2024, necessary leads from reliable sources were received with regard to involvement of the present accused-petitioner as the main trafficker and supplier of the contraband. Based on such source, necessary investigation was taken up and the mobile number of suspect, that is, the present accused-petitioner was identified. Legal interception of the mobile conversations of the present accused-petitioner was found necessitated and accordingly, those were obtained. The informant further stated that investigation had established that the present accused-petitioner was directly involved in trafficking of contraband from Manipur to various States of India. The interception revealed that the present accused-petitioner was transporting 100 packets of contraband [Heroin] to Dimapur from an unknown person on 30.07.2024. The informant further mentioned that following the leads, the present accused-petitioner and his accomplice, Jhunu Kumar were located and thereafter, arrested. Police remand was sought for and during their examination, both the present accused-petitioner and his alleged accomplice, Jhunu Kumar revealed certain facts which were not directly involved in the case, South Police Station Kohima Case no. 30/2024, which was being investigated by him. 4.1. The informant in the FIR further alleged that the present accused-petitioner along with his partners, [i] Sri Anil; [ii] Sri Prashant Jaiswal; and [iii] Sri Mani Kumar collected contraband [Heroin - Sunflower] from one lady viz. Ms. Koveni of Kohima and transported them to Dimapur and other parts of the country. The informant stated that the present accused-petitioner stated before him that he along with his partner, Sri Anil purchased 40 soap cases containing contraband [Heroin - Sunflower] along with a consignment of 40 packets of heroin and thereafter, took a zonal taxi for heading to Dimapur. It was alleged that the present accused-petitioner stated that he in a private car drove in front of the zonal taxi and escorted it in order to alert his partners in the zonal taxi in case of any police or like authority were checking the vehicles. The informant further stated that present accused-petitioner had admitted before him that they transported large number of consignments of contraband [Heroin] from Kohima to Dimapur sometimes in April, 2024 and June, 2024. 4.2. The informant further stated that present accused-petitioner had admitted before him that they transported large number of consignments of contraband [Heroin] from Kohima to Dimapur sometimes in April, 2024 and June, 2024. 4.2. The informant in the FIR had further alleged that the present accused-petitioner stated before him that on 30.07.2024, he along with Sri Anil and Sri Prashant Jaiswal were again transporting 20 packets of contraband [Heroin - Sunflower]. On that occasion also, he was being accompanied by his friend, Jhunu Kumar. However, while they were on their way, Police personnel intercepted him and Jhunu Kumar in his car [Maruti Wagaon-R] bearing Registration no. WB-70/S-1748 and detained them. The zonal taxi which was carrying the contraband was, however, could not be intercepted by police and it escaped notice of the Police personnel. 4.3. Projecting that the present accused-petitioner and his accomplice, Jhunu Kumar were found to be repeatedly and largely involved in trafficking of huge quantity of contraband [Heroin - Sunflower] from Kohima to other parts of the country, the informant felt the necessity to investigate their case separately and dedicatedly which involve the trafficking of contraband [Heroin] by the present accused-petitioner and his accomplice, Jhunu Kumar. 5. It was on the basis of the afore-mentioned FIR, the case, South Police Station Kohima Case no. 34/2024 has been registered for the offences under Sections 22/27A/29[1] of the NDPS r/w Section 3 of the BNS Act. 6. I have heard Mr. Taka Kisu, learned counsel for the petitioner; and Ms. S. Mere, learned Public Prosecutor for the respondent State of Nagaland, who has also produced the Case Diary of South Police Station Kohima Case no. 34/2024. 7. The present accused-petitioner and his alleged accomplice, Jhunu Kumar at the time they were shown arrested in connection with South Police Station Kohima Case no. 34/2024, were in custody in connection with South Police Station Kohima Case no. 30/2024. The present accused-petitioner and his alleged accomplice moved a number of applications seeking bail before the Court of learned Special Judge [NDPS], Kohima. In the course of consideration one of such bail applications, registered and numbered as I.A.[Crl.] no. 308/2024, on 09.10.2024, it was submitted by the I.O. of the case before the learned Special Judge that the alleged accomplice, Jhunu Kumar should be discharged from the liability of the case as involvement of Jhunu Kumar in the crime could not be found. In the course of consideration one of such bail applications, registered and numbered as I.A.[Crl.] no. 308/2024, on 09.10.2024, it was submitted by the I.O. of the case before the learned Special Judge that the alleged accomplice, Jhunu Kumar should be discharged from the liability of the case as involvement of Jhunu Kumar in the crime could not be found. It was further informed that by an Order dated 04.09.224, the prayer of the I.O. seeking discharge of Jhunu Kumar was allowed. 8. In view of such fact situations obtaining in the case, South Police Station Kohima Case no. 34/2024, it transpires that it is the present accused-petitioner who is the only suspect in the case. 9. On perusal of the materials in the Case Diary, it is found that save and except the statement of the present accused-petitioner recorded under Section 161, CrPC, no other statement of any witness or accused person has been recorded under Section 161, CrPC by the I.O. till date. The I.O. of the case has, in the meantime, collected the Bank Statements of the present accused-petitioner and his alleged accomplice, Jhunu Kumar [already discharged]. From the materials in the Case Diary, it transpires that after analysis of the Bank Statements of Jhunu Kumar, the I.O. did not find any suspicious illegal transactions of Jhunu Kumar with the present accused-petitioner. The materials in the Case Diary indicate that the I.O. suspected involvement of 3 [three] other persons, namely, [i] Kaovine; [ii] Prasant; and [iii] Mani Bhusan. 10. I have gone through the materials available in the case diary, collected during the course of the investigation carried out so far. The alleged accomplice of the present accused-petitioner, Jhunu Kumar has already been discharged from the case with the I.O. finding no prima facie case against him regarding his involvement in the criminal conspiracy or trafficking of contraband. An act of criminal conspiracy happens when two or more persons agreed to, or cause to be done, an illegal act or an act which is not illegal by illegal means. With the discharge of the alleged accomplice, Jhunu Kumar the other materials are not prima facie suggestive of the fact that the present accused-petitioner had entered into a criminal conspiracy with any other person. With the discharge of the alleged accomplice, Jhunu Kumar the other materials are not prima facie suggestive of the fact that the present accused-petitioner had entered into a criminal conspiracy with any other person. Though the present accused-petitioner was arrested in connection with this case on 30.07.2024 and his Bank Statements were collected during the course of investigation, the I.O. of the case, as per his version recorded in the case diary, has not been able to reach a view that the bank transactions of the present accused-petitioner pertained to illegal trafficking of narcotics contraband. 11. It can be seen that the powers of this Court to grant bail under Section 483, BNSS are subject to the limitations contained in Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of granting bail. 12. For ready reference, Section 37 of the NDPS Act is quoted hereunder :- 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 1 [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. 13. Section 37 of the NDPS Act starts with a non-obstante clause. [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. 13. Section 37 of the NDPS Act starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section [2] of Section 37 of the NDPS Act makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section 483, BNSS, 2023 [previously, Section 439, CrPC], it is also subject to the restrictions placed by sub-clause [b] of sub-section [1] of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two 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. In other words, these limitations are in addition to those prescribed under the Code or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on ‘reasonable grounds’. 14. In Satpal Singh vs. State of Punjab, reported in [2018] 13 SCC 813, the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, in the context of Section 37, NDPS Act have been reiterated. The satisfaction contemplated regarding the accused being not guilty, has to be based on ‘reasonable grounds’. 14. In Satpal Singh vs. State of Punjab, reported in [2018] 13 SCC 813, the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, in the context of Section 37, NDPS Act have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the Code [which would presently be the BNSS, 2023] or any other law in force on the grant of bail. 15. 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 [Collector of Customs, New Delhi vs. Ahmadalieva Nodira, (2004) 3 SCC 579; and State of Kerala etc. vs. Rajesh etc., (2020) 12 SCC 122 ]. The Court while considering an application for bail with reference to Section 37 of the NDPS 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 to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, quoted above, is sine qua non for granting of bail under the NDPS Act. 16. Thus, recording of satisfaction on both the aspects, quoted above, is sine qua non for granting of bail under the NDPS Act. 16. The Hon’ble Supreme Court of India in Mohit Aggarwal [supra] after considering the decisions in Ahmadalieva Nodira [supra] and Rajesh [supra], has summed up the legal position regarding the expression ‘reasonable grounds’ in the following words :- To sum up, the expression ‘reasonable grounds’ used in clause [b] of subsection [1] of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 17. The Hon’ble Supreme Court in Mohit Aggarwal [supra] has also clarified about the manner of consideration of an application for bail. In the context of Section 37 of the NDPS Act, it has been clarified therein to the effect that at the stage of examining an application for bail involving commercial quantity of a contraband, the Court is not required to record a finding that the accused person is not guilty. At the time of such consideration, the Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at that stage is for the limited purpose of releasing the accused-petitioner on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the NDPS Act while on bail. 18. From the contents of the FIR itself, it is evident that no contraband like Heroin [Sunflower] was recovered and seized from the possession of the present accused-petitioner. The FIR had mentioned about an alleged act of trafficking of contraband on 30.07.2024 wherein the present accused-petitioner alleged to have participated by aiding few other persons who were purportedly transporting the alleged contraband in another vehicle. The FIR had mentioned about an alleged act of trafficking of contraband on 30.07.2024 wherein the present accused-petitioner alleged to have participated by aiding few other persons who were purportedly transporting the alleged contraband in another vehicle. The materials available in the Case Diary, collected during the course of investigation carried out so far since 30.07.2024, are not enough to suggest about occurrence of such an incident on 30.07.2024. There is also no material in the Case Diary suggesting of any act of harbouring on the part of the present accused-petitioner. 19. From the materials available in the Case Diary, which have been collected during the course of investigation carried out so far, it does not go to prima facie suggest that the same are sufficient to attract the ingredients of the offences, that is, Section 22 and/or Section 27A and/or Section 29[1] of the NDPS Act and/or Section 3[5] of the BNS Act, 2023. 20. From the Case Diary, it is, however, noticed that the investigation of the case is still in progressed. 21. It has been submitted at the Bar that the present accused-petitioner has already been released on bail in connection with South Police Station Kohima Case no. 30/2024. The materials in the case diary do not indicate that the present accused-petitioner was earlier arrested in connection with other case, save and except South Police Station Kohima Case no. 30/2024 and the case in hand. 22. The materials are absent in the Case Diary as regards criminal antecedents of the present accused-petitioner. Having regard to the materials available in the Case Diary, collected during the course of investigation carried out so far, and the rigors of Section 37 of the NDPS Act, this Court is not persuaded to reach a view that there are reasonable grounds for believing that the present accused-petitioner is guilty of the offences for which South Police Station Kohima Case no. 34/2024 has been registered. To be more precisely, this Court is persuaded to reach a view that there are no reasonable grounds for believing that the present accused-petitioner is guilty of the offences for which South Police Station Kohima Case no. 34/2024 has been registered. In the absence of his criminal antecedents, it is not possible to hold a view that on being released on bail, the accused-petitioner is likely to commit any offence while on bail. 23. 34/2024 has been registered. In the absence of his criminal antecedents, it is not possible to hold a view that on being released on bail, the accused-petitioner is likely to commit any offence while on bail. 23. In view of the observations made and the findings recorded hereinabove, the accused-petitioner is allowed to be enlarged on bail on furnishing a bail bond of Rs. 50,000/- with two local sureties of Rs. 50,000/- each to the satisfaction of the learned Special Judge, Kohima, subject to the following conditions :- [1] The accused-petitioner shall furnish their local addresses and mobile numbers along with proof before the learned Special Judge, Kohima; [2] The accused-petitioner shall not leave the territorial jurisdiction of the learned Special Judge, Kohima without prior permission from the said Court; [3] The accused-petitioner shall cooperate with the Investigating Officer of the case and shall attend before him on the first day of every month and as and when his presence is required by the Investigating Officer of the case till the submission of the charge sheet or final report, as the case may be, in South Police Station Kohima Case no. 34/2024; [4] The accused-petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; [5] The accused-petitioner shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; [6] The accused-petitioner shall maintain law and order and they shall not commit an offence similar to the offence of which he is accused, or of the commission of which he is suspected; [7] In the event of breach of any of the conditions, the Special Judge, Kohima shall be at liberty to cancel his bail without any reference to this Court. 24. It is, however, made clear that the observations made above are only in respect of consideration of the present accused-petitioner’s prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioner, in the event he is charge sheeted in the case. 25. The application stands disposed of in the aforesaid terms.