Rupa Gurung vs State Of Sikkim on 11 March, 2020

[Cites 15, Cited by 2]

Sikkim High Court

Rupa Gurung vs State Of Sikkim on 11 March, 2020

1. The Petitioner seeks enlargement on bail by filing the instant application. Learned Counsel for the Petitioner submits that she was arrested on 18-01-2020 in connection with Singtam Police Station, East Sikkim, FIR No.03/2020, dated 18-01-2020, under Section 7(a)(b) and 14 of the Sikkim Anti Drugs Act, 2006 (for short, SADA, 2006) and under Section 9(1)(b) of the Sikkim Anti Drugs (Amendment) Act, 2017, on allegations of selling controlled substances.

2. Consequent upon the Complaint lodged against her a house search was conducted by the Singtam Police, wherein controlled substances, i.e., ―Spasmo-Proxyvon plus‖ capsules, and ―Nitrosun 10‖ tablets, were recovered from her residence. Bail Appln. No.02 of 2020 2

Rupa Gurung vs. State of Sikkim That, the controlled substances so recovered are not of commercial quantity besides there being an anomaly in the quantity reflected in the FIR and the Seizure Memo. The Petitioner has no criminal antecedents and her permanent home is in Singtam, therefore the question of her attempting to abscond or for that matter tamper with the Prosecution evidence does not arise. That apart, her husband infact was earlier arrested for possession/consumption of controlled substances but the Policy inquiry in the instant matter did not extend to him. That, she has several physical ailments such hypertension and high uric acid levels, added to which her daughter is on the family way for which her presence is required. The penalty prescribed is not with death or imprisonment of life but rigorous imprisonment for two years, which may extend to five years. That, the Charge-Sheet has not yet been filed despite a lapse of more than forty-five days since the lodging of the FIR. Considering the above circumstances, she may be enlarged on bail on any stringent conditions.

3. Per contra, Learned Assistant Public Prosecutor objecting to the petition for bail submits that the substances were recovered not only from the house of the accused when she was present therein, but large quantities were also recovered from her next door neighbour in the same building, who is co-accused in the matter. The said co-accused in the instant matter is a habitual offender. That, the investigation is being taken up expeditiously and the report of the controlled Bail Appln. No.02 of 2020 3 Rupa Gurung vs. State of Sikkim samples sent for testing to the RFSL Saramsa, East Sikkim, are awaited which is likely to be completed within a few days. On submission of the RFSL Report, the Charge-Sheet shall be filed immediately. In view of the nature of the offence, the matter may not be considered leniently and the petition for bail rejected.

4. I have heard the rival contentions of Learned Counsel at length and taken into consideration their submissions. I have also perused the documents placed before this Court.

5. The facts are not disputed. The seizures of controlled substances were made from the Petitioner's house allegedly kept for sale. It needs no reiteration that there is rampant abuse of controlled substances by people of all ages in the State especially by the youth. The law enforcement agencies are embattled in their efforts to control the sale and use of these substances which is spreading to gargantuan proportions. The abuse of the substances is primarily on account of easy availability and sale by unconscionable persons, at exorbitant prices who having found an easy way of earning money by luring the young and indulge in its sans conscience. Besides the victim, the unsuspecting family of the victim bears the brunt of these sales and purchases which strike at the root of a stable family and society. In my considered opinion, no misplaced sympathy ought to be extended to persons who Bail Appln. No.02 of 2020 4 Rupa Gurung vs. State of Sikkim indulge in the sale and easy supply of controlled substances to the impressionable youth.

6. In this thread, useful reference may be made to the observations of the Hon'ble Supreme Court which while considering grant of bail under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act) in State of Kerala etc. vs. Rajesh etc.1 involving the sale of Hashish Oil was pleased to observe that under Section 37 of the NDPS Act bail can be granted in case there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The Hon'ble Supreme Court in Paragraph 18 of the Judgment supra held as follows;

"18. 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. That provision 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--


1
    2020 SCC OnLine SC 81
                  Bail Appln. No.02 of 2020                                5

               Rupa Gurung   vs. State of Sikkim




                                          (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.‖ (emphasis supplied)"

In Paragraph 20, it was further observed as follows;

"20. 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 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. [emphasis supplied]"

In Paragraph 21, it was held thus;

"21. 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 CrPC, or any other law for the Bail Appln. No.02 of 2020 6 Rupa Gurung vs. State of Sikkim 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."

7. In Union of India vs. Ram Samujh and Another2 it was held as follows;

"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. ...................

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. [emphasis supplied]"

8. On the bedrock of the ratiocination supra, it is apposite to refer to the relevant provision of the SADA, 2006, viz., Section 18. Section 37 of the NDPS Act is embodied in Section 18(2) of the SADA, 2006, which reads as follows; 2 (1999) 9 SCC 429 Bail Appln. No.02 of 2020 7 Rupa Gurung vs. State of Sikkim "18. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable under this Act shall be released on bail or on his own bond unless -

(i) the Public Prosecutor has been heard and also 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 or any other law for the time being in force on granting of bail. [emphasis supplied]"

It is clear that Section 18 of the SADA, 2006 lays down the exact same requisites as Section 37 of the NDPS Act while considering a petition for bail.

9. After giving due consideration to the facts and circumstances in the instant case despite the urging of Learned Counsel for the Petitioner that she is 47 years old, a grandmother who has no criminal antecedents, I find that should this Court be inclined to grant bail for the offence, in all likelihood she will revert back to the activities she was indulging in vis-à-vis the controlled substances. The act of selling controlled substances for monetary profits without looking into deleterious effects it has on the health of the victim has to stringently be discouraged. It is reiterated that such persons strike at the very future of our society since most of the consumers are the youth who are yet to have their feet on terra-firma or to understand the consequences of the choices Bail Appln. No.02 of 2020 8 Rupa Gurung vs. State of Sikkim that they are making and its long term effects besides throwing away their future. In consideration of the provisions of the Statute there is no guarantee that the Petitioner will not repeat the offence while on bail and for the present purposes there is no reason to disbelieve the Prosecution case. Although I hasten to add that this is a prima facie observation and will have no bearing on the merits of the case, which includes the evidence furnished by the Prosecution to establish its case.

10. Consequently, the application for bail stands rejected. However, the Investigating Officer shall file the Charge-Sheet within the mandated period of limitation and the Learned Trial court shall take not more than eight months thereafter to dispose of the instant matter.

11. Let the Superintendent of Police (Jails) ensure that the blood pressure of the accused is measured on a daily basis at the Clinic in the Jail. That, a blood sample of the accused, subject to her consent, be drawn for checking her uric acid levels. That Doctor concerned shall take necessary steps accordingly.

12. The Bail Appln. stands disposed of.

13. Copy of this Order be made available to all the Special Judges (Sikkim Anti Drugs Act, 2006) for information.

( Meenakshi Madan Rai ) Judge 11-03-2020 Approved for reporting : Yes ds

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