1. Heard Shri Amit Kumar Srivastava, learned counsel for the applicant and Shri Ashish Pandey, learned counsel for the Narcotic Control Bureau, Lucknow.
2. The allegation against the applicant is that on the basis of the prior information given by the informant the applicant was intercepted by the team of Narcotic Control Bureau (hereinafter referred to as "N.C.B") at Kanpur Central Railway Station at about 11:00 p.m and 650 gms of heroin was recovered from his possession.
3. Counsel for the applicant has submitted that nothing was recovered from the possession of the applicant and false recovery of 650 gms of heroin have been shown from his possession. There is no public witness of the alleged recovery when the same is alleged to have been made at busy place of Kanpur Central Station. The recovery was made from the some other person but the applicant has been falsely implicated in this case. He has no concern with the aforesaid contraband recovered. The mandatory provisions of Sections 50, 52 and 57 of N.D.P.S Act have not been followed by N.C.B. Confessional statement of applicant recorded under Section 67 of N.D.P.S Act was under pressure and not his free statement. The applicant is a poor person working as auto-driver and he has been falsely implicated in this case. He has no criminal antecedent. The applicant is in jail since 02.04.2019 and there is no chance of his absconding and tampering with the witnesses in case he is released on bail.
4. Counsel for the applicant has relied upon the judgment of the Apex Court in the case of Union of India vs. Shiv Shanker Kesari, 2007 (7) SCC 798 and has prayed that the applicant may be enlarged on bail as per the ratio of this case.
5. Counsel for the N.C.B has vehemently opposed the bail application. He has submitted that a specific information was received by Shri Rameshwar Das, Intelligence Officer from the Zonal Director, N.C.B., Lucknow on 01.04.2019 with regard to the trafficking of 800 gms heroin by a person namely, Rajat Gupta, applicant, resident of Bareilly who will arrive at Kanpur Railway Station by Rajdhani Express from Guwahati to New Delhi on 02.04.2019 and exit from Kanpur Cantt. Railway Station, Gate No. 2. The aforesaid information was reduced in writing and placed before the Zonal Director, N.C.B., Lucknow and on his direction a team was constituted and moved immediately to the spot as mentioned in the aforesaid information for further action. Thereafter the team members joined the S.T.F., Officers and both the teams mounted surveillance near Gate No. 2, Kanpur Railway Station. The team members also requested few persons to be present as independent witness during the search and seizure but no one agreed for the aforesaid purpose citing their personal reasons. After departure of the said Rajdhani Express the applicant was intercepted and team members asked for his introduction. The aforesaid person disclosed his name as Rajat Gupta, applicant. The team informed him about the secret information and requested to allow the seizing officer to conduct personal search of the applicant for said purpose. The notice under Section 50 of N.D.P.S Act was given in writing for his personal search. The applicant demanded to be searched in front of the Gazetted Officer and accordingly, Shri Birendra Kumar, Zonal Director, N.C.B., Lucknow was informed and his pressure was requested on his mobile number for the aforesaid purpose. After some time, the search proceeding was started in front of the aforesaid Gazetted Officer. During the search a bottle of MILTON Company was recovered. Bottle was opened from bottom side and a polythene bag containing brown colour substance was recovered from the bottom of the water bottle. Upon enquiry the applicant disclosed that the recovered substance was Heroin. Then small quantity of the substance was taken out and tested with D.D. Kit which resulted positive for heroin. On weighing, the weight of the recovered packet with brown colour substance was found to be 650 gms. Thereafter, two samples of 5-5 grams each were taken from the aforesaid substance and were heat sealed in two separate packets and marked as P1S1 and P1S2. The remaining quantity of 640 gms was kept in another packet and was also heat sealed and marked as P1. The test memo in triplicate, an inventory of seized articles, facsimile of seal, seizure memo and map were prepared on the spot.
6. After the aforesaid proceedings the statement of applicant under Section 67 of N.D.P.S Act was recorded. The applicant tendered his confessional statement on his free will and without any undue influence or pressure wherein he disclosed the modus operandi with regard to the trafficking and transportation of recovered 650 gms of heroin and also disclosed the role of other accused person in the trafficking of recovered heroin.
7. Thereafter on 02.04.2019 on the basis of the recovery and voluntary statement of applicant recorded under Section 67 of N.D.P.S Act in which he confessed to his involvement and role in the trafficking of heroin and on the basis of recovery from the applicant, he was placed under arrest. He was produced before the court concerned along with the seized articles, samples, other recovered articles as well as seizure documents for remand on 02.04.2019. The original sample marked as P1S1 was send through special messenger to CRCL, New Delhi on 03.04.2019 for its chemical examination and the remaining sample P1S2 seized material P1 and other articles, recovered during Jama Talashi was deposited in the Malkhana on the same day vide entry no. 74 dated 03.04.2019. The chemical examination report was received on 20.05.2019 from the CRCL, New Delhi, which confirmed that the sample under reference answers positive for Morphine and Codeine. The aforesaid report was also served on the applicant through Jail Superintendent, Kanpur in the jail. During investigation in follow up action the notice under Section 67 of N.D.P.S Act was sent to one, Mohan Pandey, resident of Baradari, Bareilly as his name and role was disclosed in the confessional statement of the applicant, to appear before the Investigating Officer but he did not appeared. The investigation in respect of Mohan Pandey was kept pending as he did not joined the investigation and knowingly avoided his appearance before the investigating officer as such the supplementary complaint will be filed against him after completion of investigation and relevant outcome will be placed accordingly.
8. From the aforesaid facts and circumstances and other evidence collected during investigation, it is crystal clear that accused, Rajat Gupta, has committed the offence punishable under Sections 8/21/29 of N.D.P.S Act. Accordingly, the complaint in this regard has been submitted in the present case by the Investigating Officer before the court concerned against the applicant on 26.09.2019. The officers of the raiding team are officers of Central Government and they are not known to the accused person and also having no enmity with the applicant on record, therefore, there is no motive to falsely implicate the applicant in the present case.
9. From the material evidence on record, it is apparently clear that the applicant was having conscious and constructive possession of the applicant over the recovered 650 gms of Heroin. The act and conduct of the applicant fully comes under the purview of the illicit trafficking of the contraband under the N.D.P.S Act. The presumption under Section 54 of the N.D.P.S. Act shall also be drawn against the applicant. The Hon'ble Supreme Court has observed that such kind of persons, who are directly or indirectly involved in such kind of illicit trafficking are hazardous for the society at-large. From the aforesaid, that applicant was deliberately and knowingly involved in the illicit trafficking of seized heroin for obtaining pecuniary benefit. As such, the applicant is not an innocent person but a criminal minded person.
10. The officers of N.C.B., team requested some persons, who were passing there to be present as independent witness for further course of action, to which they all denied citing their personal reasons. It is relevant to point out here that the Hon'ble Supreme Court has settled the law in case of M. Prabhu Lal vs. The Assistant Director D.R.I., reported in 2003 (47) ACC 1151, that even due to want of independent witnesses, the recovery cannot be doubted.
11. In this case, total 650 gms of heroin has been recovered, which is much more than the commercial quantity, therefore, the provisions of Section 37 of the N.D.P.S Act are fully attracted in this case and as such in view of the law laid down by the Hon'ble Supreme Court in case of "Union of India vs. Ratan Malik @ Habul, reported in 2009(1) SCC (Cri.) 831", considering the facts of the case and gravity of offene and role played by the applicant, as well as provisions of Sections 35, 37 and 54 of the N.D.P.S Act. The applicant is not entitled to be released on bail and the bail application of the applicant is liable to be rejected.
12. After considering the rival contentions this court finds that the judgment in the case of Union of India vs. Shiv Shanker Kesari (Supra) relied upon by the counsel for the applicant provides that unless that two conditions laid down in Section 37 of N.D.P.S Act are satisfied, namely, the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail are satisfied the accused cannot be released on bail.
13. In the present case this court does not finds any reasonable ground at this stage for believing that accused is not guilty and also that he will not commit any such offence, if released on bail. Therefore the case law relied upon will not held the applicant.
14. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite which makes the offences under the Act cognizable and non-bailable. It reads thus:-
"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 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."
15. The Apex Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:-
"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 death-blow 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 v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
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; and
(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."
16. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations
Please Login To View The Full Judgment!
contained under Section 439 of the CrPC, 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. 17. 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, this court cannot completely overlook the underlying object of Section 37 that in 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. 18. In view of the above considerations this bail application is rejected. 19. Trial court is expected to conclude the trial of the applicant as per Section 309 Cr.P.C at the earliest.