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2024 DIGILAW 1782 (GAU)

Besu Ashurhu S/O Besu v. State Of Nagaland

2024-12-13

MANISH CHOUDHURY

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ORDER : Manish Choudhury, J. Heard Ms. Krovi Tsukru, learned counsel for the petitioner and Ms. Livika, learned Public Prosecutor, Nagaland for the respondent. 2. The present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita [BNSS] Act, 2023 is preferred by the petitioner seeking bail in respect of the accused viz. L. Manio in connection with Special Case no. 40 of 2024 arising out of Narcotic Police Station Case no. 14 of 2024 registered for the offences under Section 24[c], Section 29 and Section 60 of the Narcotic Drugs and Psychotropic Substances [NDPS] Act, 1985. 3. At the inception, it is appropriate to narrate the events, in brief, leading to the registration of Narcotic Police Station Case no. 14 of 2024. 3.1. On 16.08.2024, one UBSI named Zasilie Angami of the Narcotic Cell Police Station, Police Head Quarter, Nagaland, Kohima was detailed for MVCP duty along with other staff. During the period of MVCP duty in between Khuzama and Viswma, near Agri-link road, Khuzama village, a vehicle bearing Registration no. NL-01/H-1658 [Ford Figo Exi Duratec/Diamond] [‘the subject-vehicle’, for short] was intercepted at around 11-00/11-20 hours while the subject-vehicle was proceeding towards Kohima from Manipur side. On intercepting the subject-vehicle, suspicious materials, suspected to be contraband, were detected inside the subject-vehicle. Information was immediately given to superior officers. Independent witnesses from the District Administration and Gazetted Police Officer were also called to the scene to conduct search and seizure. The subject-vehicle was checked in presence of witnesses. During the search of the subject-vehicle, contraband substance, suspected to be Heroin, packed in 40 soap boxes were found concealed inside one green coloured backpack which was kept in the rear seat of the subject-vehicle. Accordingly, the suspected contraband were duly seized in presence of independent witnesses and the Gazetted Officer. The packets suspected contraband [Heroin] were weighed separately, with and without the soap box cover, and the total weight of the seized contraband [Heroin] was found to be approximately 489 grams without the soap box covers and the entire proceeding was videographed. The packets of the contraband [Heroin] were then serially marked, packed, sealed and seized and the same were attested by the independent witnesses, Gazetted Officer and the accused persons. 3.2. The packets of the contraband [Heroin] were then serially marked, packed, sealed and seized and the same were attested by the independent witnesses, Gazetted Officer and the accused persons. 3.2. The seized contraband along with the subject-vehicle with ignition key and vehicle documents were listed in a seizure memo and thereafter, were seized from the possession of the accused persons. The seizure procedure stated to have started at 11-45 hours and ended at 16-30 hours. The subject-vehicle was found to have three occupants – [i] Manizuo; [ii] Kayikho Solomon; and [iii] Manio [arrested accused person present here]. 4. Ms. Tsukru, learned counsel appearing for the accused person, L. Manio has submitted that the accused is a patient suffering from serious chest pain and breathing issue caused due to an accident the accused met a year back. With such projection, Ms. Tsukru has submitted that the accused, L. Manio may be allowed to go on bail subject to imposition of terms and conditions found appropriate by this Court. On being so released on bail, the accused, L. Manio would assist and cooperate in the further investigation of the case. 5. Ms. Livika, learned Public Prosecutor appearing for the State has vehemently objected to the prayer for release of the accused, L. Manio. Ms. Livika has further submitted that the rigors of Section 37, NDPS Act cannot be relaxed on such ground. She has, thus, vehemently objected to the prayer for bail to the accused, L. Manio on the ground that he having found in possession of contraband [Heroin] of commercial quantity is entitled to be released at this stage of investigation. 6. Mention of Heroin is found in Entry no. 56 in the Table appended to the NDPS Act, 1985 issued in terms (viia) and (xxiiia) of Section 2 of the NDPS Act, 1985. Evidently, a quantity of 489 gms of heroin is commercial quantity. 7. At this stage, it is apposite to refer to Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 as substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001, reads as follows : 37. Evidently, a quantity of 489 gms of heroin is commercial quantity. 7. At this stage, it is apposite to refer to Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 as substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001, 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 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 subsection (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. 8. It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others, [1991] 1 SCC 705 that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act, 1985 and the restrictions placed on the powers of the Court under Section 37, NDPS Act, 1985 are applicable to this Court also in the matter of granting bail. 9. Section 37 of the NDPS Act, 1985 starts with a non-obstante clause. 9. Section 37 of the NDPS Act, 1985 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, 1985 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, 1985 is not only subject to the limitations imposed under Section 483, BNSS, 2023 [earlier, 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, 1985. 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 BNSS, 2023 [earlier, CrPC] or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act, 1985 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, 1985 are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". 10. In Satpal Singh [supra], the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of Section 37, NDPS Act, 1985 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 are to be examined to enter such a satisfaction. Materials on record are to be seen and the antecedents of the accused are to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. 11. 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., [ AIR 2020 SC 721 ]. The Court while considering the application for bail with reference to Section 37 of the NDPS Act, 1985 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, noted above, is sine qua non for granting of bail under the NDPS Act, 1985. 12. The phrase “reasonable grounds” to believe also came to be considered by the Hon’ble Supreme Court of India in Union of India vs. Shiv Shanker Kesari, reported in [2007] 7 SCC 798, wherein the observations were made to the following effect. 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. It is difficult to give an exact definition of the word “reasonable”. 10. 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”. 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. [ (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.” 13. From perusal of the materials available in the case diary, it is found that it was the accused, L. Manio, was an occupant in the subject-vehicle, which is a private vehicle, which was proceeding from Manipur side to Kohima. The materials in the case diary go to indicate that three occupants in the subject-vehicle are known to each other from a prior date. The investigation of the case is still in progress. The investigating authority have collected Bank Statements of two of the accused persons including the accused, L. Manio and such bank transactions are indicative of suspicious sources. 14. Whether there was conscious possession has to be determined with reference to the factual backdrop. The standard of conscious possession is different in case of a public transport vehicle with a larger nos. of persons as opposed to a private vehicle with only three occupants in the subject-vehicle in the case in hand, who are known to one another. Therefore, this Court is not persuaded to hold a view, in the presence of prima facie materials to the contrary, the accused, L. Manio was not in conscious possession of the contraband. 15. of persons as opposed to a private vehicle with only three occupants in the subject-vehicle in the case in hand, who are known to one another. Therefore, this Court is not persuaded to hold a view, in the presence of prima facie materials to the contrary, the accused, L. Manio was not in conscious possession of the contraband. 15. In an application for bail involving the contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, it is not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act which are required to be considered. 16. The ground urged by the learned counsel for the accused, L. Manio regarding his health condition has been duly considered and is found not merited. 17. In the above fact situation obtaining in the case, this Court is not in a position reach a view that there are reasonable ground to believe that the accused, L. Manio is not guilty of the offences for which Narcotic Police Station Case no. 14 of 2024 has been registered. Upon such consideration, this Court finds that the application is bereft of any merit. Consequently, the same is dismissed. 18. It is, however, made clear that the observations made above are only for consideration of the prayer for bail of the accused in this petition and none of the observations made in this order shall have any bearing in the trial of the accused person. The bail application stands disposed of in the above terms.