Gauhati High Court
Laishram Noren Singh vs Lalsawmlien Kungte on 26 March, 2007
Equivalent citations: 2007CRILJ2179, 2007(3)GLT96, 2007 CRI. L. J. 2179, (2007) 58 ALLINDCAS 813 (GAU), 2007 (5) ABR (NOC) 769 (GAU), (2009) 4 GAU LR 578, (2007) 3 GAU LT 96, (2007) 2 EFR 493
Author: U.B. Saha
Bench: U.B. Saha
ORDER U.B. Saha, J.
1. This is an application Under Section 439 Cr.P.C. read with Section 37 of the Narcotic Drugs and Psychotropic Sub-stances Act, 1985 (hereinafter refers to as the "Act") filed by one, Shri Laishram Noren Singh, father of the accused, Laishram Surajkumar Singh alias Boynao, who was arrested in connection with Criminal Complaint Case being No. 6/4/ NCR/Imp/ Ganja/CL/2006, Under Sections 8(c), 20(b), (ii)(c), 29, 42 and 60 of the ND & PS Act, 1985.
2. I have heard Mr. A. Mohendro, learned Counsel for the petitioner and Mr. N. Brojendro, learned Special P.P., Narcotic Control Bureau (in short "NOB"), Regional Unit, Imphal.
3. The pleaded case of the petitioner for ball of his son, Laishram Surajkumar Singh Alias Boynao, is that his son is in no way involved in the aforesaid complaint case as he is the owner cum-Driver of the Mahendra Jeep, bearing Regn. No. MN 1A-5936, another Mahendra Jeep bearing Regn. No. MNO1K-8487 was driven by Thokchom Somi Singh, from which the 13th Assam Rifles intercepted 32 packets of contraband Ganja weighing 644 Kgs (Gross.) On 26-6-06 two tribal persons hired the aforesaid two jeeps through the All Manipur Jeep Owners Association, to transport some grocery items from Imphal to Ringui Village. Ukhrul District, Manipur. The owner of the aforesaid quantity of Ganja are (i) Banison and (ii) Mahal of Ringui village, who hired the vehicle. Petitioner's son along with another person. Thokchom Somi Singh, on good faith, proceeded towards Ringui Village. After reaching Ringui Village, said Banison and Mahai requested the petitioner's son, Laishram Surajkumar Singh and Thokchom Somi Singh, to transport some of their grocery articles, which were said to be ginger and chilli, from Ringui village up to Phungcham village and accordingly they proceeded further towards Phungcham Village, and on the way to the said Phungcham Village, 13th A.R. personnel detained the said vehicles and intercepted the aforesaid quantities of Ganja from the vehicles. They were arrested and produced before the Special Court, ND & PS on 1-10-06 and since then the accused Laishram Surajkumar Singh has been in judicial custody. It is also stated in the bail application that before approaching this Court, the petitioner also approached the Special Court , which is entrusted to take up the cases relating to narcotic drugs and psychotropic substances. The said bail application was rejected by the learned Judge Special Court on 16-12-2006.
4. The case of the prosecution, as it appears from the complaint, is that acting on telephonic information received from the 13 A.R. Hqs, Ukhrul on 30-9-2006 at about 1800 hours to the effect that personnel of 'D Company' of 13 A. R. intercepted 32 packets of contraband Ganja weighing 644 Kgs. (gross) carried by two Mahindra Jeeps, bearing Regn. No. MN1A-5936 and MN01K-5487 with two drivers of the said two Jeeps, namely, Laishram Surajkumar Singh and Thokchom Somi Singh, at the tri-junction of Phungcham Village on 27-9-06 at about 2300 hours. The official of the 13 Assam Rilfes were willing to hand over the seized contraband Ganja to the transit camp NCB on 1-10-06 for investigation of the case and after getting approval from the competent authority, a team of NCB of Imphal Unit led by C. Keishing, Assistant Director, proceeded to the transit camp of 13 Assam Rifles, Imphal and accordingly took possession of the aforesaid quantities of contraband Ganja and detained the said two accused persons, namely Laishram Surajkumar and Thokchom Somi Singh and after following all the necessary procedures, filed the complaint before the Court of learned Special Judge, ND and PS, Manipur Imphal, though one of the co-accused, namely Thokchom Somi Singh, who was arrested with Laishram Surajkumar Singh, son of the petitioner, was granted bail.
5. In support of the contention made in the petition, the learned Counsel of the petitioner, Mr. A. Mohendro, submits that one of the co-accused, namely, Th. Somi Singh, has already been released by the learned Special Judge on bail and as such the petitioner's son, Laishram Surajkumar Singh, is also entitled the same benefit. He further argues that Section 37 of the Act is not a complete bar for releasing the accused of an offence Under Section 8 read with Section 20(b)(ii)(c) of the Act. He finally submits that, even if Section 37 of the Act is considered in its true sense, then Court has to satisfy the two conditions mentioned in Section 37 of the Act before granting bail and not any other matter. In this case, the son of the petitioner, not being the owner of the aforesaid contraband Ganja, Court can safely come to the presumption that he is no way involved with the alleged offence and as he is not involved, the Court can easily give a finding that the son of the petitioner is not guilty of such an offence for which he was arrested, hence he is entitled to be released on bail and the petitioner's son will be available at the time of trial and he will not commit any offence while on bail. Another leg of his argument is that the investigating agency of the NCB has already submitted charge sheet (final complaint) and at present there is no possibility of tampering the witnesses and/or absconding from trial. Hence, Court may enlarge him on bail with any condition. He also submits that the accused is in judicial custody for 181 days as on today, i.e. 26-3-2007. In support of his contention, Mr. Mohendro relied on an order of this Court passed in Bail Application No. 1 of 2007 as well as Cri. Misc. Case No. 80 of 2006 of the Court of the learned Special Judge, ND and PS, Manipur.
6. The learned special P.P. of the N.C.B., Mr. N. Brojendro, raises objection to the prayer for bail stating that the accused has already made a statement before the investigating authority admitting his guilt and since the charge sheet has already been filed, Court cannot come to a conclusion at this stage that there are reasonable ground that the accused is not guilty of such offence which is the paramount consideration for granting bail. He also submits that the petitioner's son and his associate Somi Singh may not be the owners of the contraband Ganja, but they are the transporters of the said contraband Ganja within the purview of Section 20(b)(ii)(c) of the aforesaid Act. Therefore, it would not be proper on the part of the Court to grant bail to the accused persons, namely-(i) Laishram Surajkumar Singh and (ii) Thokchom Somi Singh, on the ground that they had no knowledge about the contraband Ganja when they were transporting the same. He further submits that as by this time, the charge sheet has been filed by the I.O. against the petitioner's accused son, it cannot be said that the petitioner's son is in no way involved in the matter till he is fully acquitted by the trial Court and mere filing of charge sheet does not create any right for the accused to go on ball in a case relating to an offence under the Act. He also submits that the co-accused was granted bail by the Special Court on medical ground as he was suffering from certain ailment which needed the accused to undergo surgical treatment and accordingly he was hospitalized in the J.N. Hospital due to non available of vacant bed and non existence of security ward in the RIMS Hospital.
7. This Court has given an anxious thought to the submission of the learned Counsel of the parties. It appears from the records that the accused were detained by the Assam Rifles personnel on and from 27-9-2006 till they were handed over to the authority of the N.C. B. Imphal, though Mr. Mohendro, learned Counsel of the petitioner submits that petitioner's son was detained not from 27th Sept. 2006 but from 26 of Sept. 2006. The offence under the Act cannot be compared with the offence under I.P.C. and/or other penal offences, as the aforesaid Act was enacted to control over the trafficking narcotic drugs and psycho-tropic substances, like cannabis, charas, Ganja etc. and also transporting of those contraband substances. Though the provisions' of Section 439 of the Criminal Procedure Code is applicable for bail like other cases of penal offences subject to limitation placed by Section 37(b)(ii)(c) of the Act, which commences with non obstante clause and unless the Court is satisfied with the submission of the parties as well as from perusal of the records to the effect that the P.P. is given an opportunity for making the objection and after getting an opportunity even he opposes the application, the Court has to come to the conclusion that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit offence while on bail then only the Court can grant bail. Without giving any specific finding that the accused is not guilty of the offence for which he is arrested, Court cannot grant bail as the son of the petitioner, namely, Laishram Surajkumar Singh, i.e. the accused, was detained along with the contraband articles (Ganja) and, while charge sheet has been filed by the Investigating Agency against the said accused, it is not possible for this Court to come to a conclusion that the accused son of the petitioner is not guilty of the offence, for which his son was arrested and charge sheet is filed at this stage.
8. The scheme of Section 37 of the ND & PS Act, 1985 reveals that the exercise of the power to grant bail either by the Special Judge or by the High Court is not only subject to limitation contained in Section 439, Cr.P.C. but also subject to the limitation placed by Section 37 of the Act which commences with non obstante clause. Operative part of the said section is in negative in prescribing the enlargement on bail of any person accused of commission of an offence under the ND & PS Act, unless two conditions mentioned in Section 37 of the Act are satisfied except relating to an offence under Sections 26 and 27 of the said Act. The provision of Section 37 of the ND & PS Act, 1985 is quoted herein under for better appreciation:
Section 37. (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 for (offences under section 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.
9. As the co-accused was granted bail on medical ground, his case cannot be compared with the case of the present petitioner's son, i.e. accused as that case is not standing on the same footing. Mere granting of bail to the co-accused does not ipso facto create any right to the accused for bail. If an accused wants to get the benefit like the co-accused, then he has to make out a similar case. In the instant case, no such case is made out. According to this Court, the learned Special Judge did not commit any wrong in enlarging the co-accused on bail on medical ground as conditions prescribed in proviso to Section 437, Cr.P.C. are also applicable in connection with an offence under the ND & PS Act. Relevant portion of the proviso to Sub-section (1) of Section 437 is quoted herein under:
Section 437. (1) ...
(i) ...
(ii) ...
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
10. Order of this Court in bail application No. 1 of 2007 has no application in the present case as this Court passed the order in the aforesaid bail application considering the relevant facts and the conditions of the accused in Complaint Case No. 19 of 2006, which is not at par with the present case, particularly, in the aforesaid application No. 1 of 2007 this Court granted bail considering the facts that the owner of the truck as well as the owner of the contraband drug were absconding and there was no scope for commencing of the early trial of that case and not for any other ground. It is to be mentioned here that the apex Court in a catena of decisions held that mere detention in custody for a period of six months is not a valid ground to release an accused on bail in a crime of this nature. The liberty of a person is not above the liberty of the Society at large particularly when the alleged offence is against the Society, though Mr. Mohendro places reliance on some of the cases decided by this Court as well as of the Apex Court wherein bail was granted after filing charge sheet, but those cases are not applicable in this case at hand, reason being that those cases are not relating to ND & PS Act. According to this Court, the legislative intent of curbing the practice of giving bail on technical ground in a crime which adversely affects the Society including the lives of number of persons. It is held that mere filing of charge sheet (final complaint), ipso facto, does not entitle to an accused to get an order of bail in a case relating to offence under the ND & PS Act. Therefore, this Court considers not to make any further observation at this stage except what has been stated hereinabove as that may affect the trial of the case. If is made clear that the trial Court should decide the matter keeping in mind the facts and the relevant records of the case. As it has already been held that mere filing of charge sheet (final complaint), ipso facto, does not entitle to an accused to get an order of bail in a case relating to offence under the ND & PS Act. Court cannot ignore the legislative mandate given in the statute particularly in Section 337 of the ND & PS Act for granting bail to an accused allegedly committed an offence under the provisions of the said Act, as it is duty of Court to abide by the legislative mandate. It is made clear that only when the accused makes out special grounds as mentioned in proviso to Sub-section (1) of Section 437 of Cr.P.C. and/or the Court can come to a conclusion that accused is in no way involved with the alleged offence and there are reasonable beliefs that he is not guilty of any offence under the Act, as required under Section 37 of the Act, only then bail can be granted.
In the instant bail application, no such case is made out for granting bail to the petitioner's son by the Court.
11. The law relating to granting of bail in an ND & PS Act has been dealt with by the Apex Court in cases of Maktoel Singh v. State of Punjab , Union of India v. Ikram Khan , Intelligence Officer Narcotics, C. Baren v. Shambu Sarkar (2001) 2 SCC 562 : 2001 Cri LJ 1082, State of M.P. v. Kajal , Narcotic Control Bureau v. Raju @ Nataranjan (2006) 9 SCC 712, Union of India v. Saurabh Chatterji (2006) 9 SCC 759 and Union of India v. Abdul Momin (2005) 13 SCC 144. The aforesaid decision of the Apex Court hold the fields relating to Doctrine of principles of bail in an ND & PS Act.
12. For the foregoing discussion, it is difficult to accept the submission of Mr. A. Mohendro, learned Counsel appearing for the petitioner made in support of the contention in the bail application. Hence, the application for bail is rejected at this stage on the basis of the grounds stated in the bail application, which is not satisfactory. However, rejection of the bail application will not be a bar for the petitioner to approach appropriate Court on any other ground excepting the ground which this Court has already dealt with in the instant bail application.
This bail application stands disposed of.