Allahabad High Court
Rakesh Kumar vs Union Of India on 30 July, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. 6 Case :- BAIL No. - 7139 of 2019 Applicant :- Rakesh Kumar Opposite Party :- Union Of India Counsel for Applicant :- Dinesh Kumar, Atul Verma Counsel for Opposite Party :- Digvijay Nath Dubey Hon'ble Jaspreet Singh,J.
Heard Sri Atul Verma, learned counsel for the applicant and Sri Digvijay Nath Dubey, learned counsel for the Directorate of Intelligence.
The submission of learned counsel for the applicant is that as per the prosecution case, the complainant is said to have received special information that a Truck loaded with narcotic substances (Ganja) was coming from Orissa through Jhansi, Orai, Kanpur, Lucknow and was going to Aligarh. It is stated that on the basis of the aforesaid information, a team of the officers of Directorate of Revenue Intelligence was consituted and along with two witnesses they reached Nadarganj where the transporting truck coming from Kanpur was intecepted at around 02:00 PM.
The person sitting in the truck was apprehended and on inquiry, he disclosed his name as Rakesh Kumar (the present applicant). The other person accompanying him in the Truck was Veerpal. It is stated that the aforesaid two persons initially feigned ignorance regarding the contents of contraband in the truck but thereafter upon being questioned they informed that they were carrying Ganja in the truck. Upon searching the Truck, a special cavity was found in the Truck from where about 146 packets were receovered which were weighd and a total of 628.280 Kgs. of Ganja was receovered from the aforesaid 146 packets. It is in the aforesaid backdrop that the complaint was filed and the applicant was apprehended who has been in Jail since 17.02.2019.
The learned counsel for the applicant submits that the applicant is a poor truck driver by profession and he had no knowledge about the contents of the contraband and he has been falsely implicated. It has further been submitted that the applicant has a family of 3 small children and wife having very small agricultural land and his family is in district Etah and the applicant in order to make his livelihood, drives a Truck.
The learned counsel for the applicant has further submitted that the vehicle which the applicant was driving had met with an accident in District Orai on 09.02.201 where the truck was damaged. The aforesaid vehicle was brought to Transport Nagar, Kanpur where it was repaired and the truck remained in the said workshop for few days. The charges for repair were paid by the owners. The applicant had no knowledge of the contraband material in the truck and that the applicant is merely shown as a carrier.
The learned counsel for the applicant has further submitted that the mandatory provisions regarding Section 42 and Section 50 have not been complied with apart from the fact that the truck also does not belong to the applicant nor the applicant has any criminal antecedents and thus prays for indulgence.
The learned counsel for the applicant in support of his submissions has placed reliance on bail orders dated 28.02.2020 in the case of Mohammad Iqbal Vs. Union of India passed in Bail Application No. 10585 of 2019 and also the order dated 09.06.2020 in the case of Mohd. Akram Vs. State of U.P. passed in Bail Application No. 867 of 2020.
The learned counsel for the DRI has vehemently opposed the bail application. It has been submitted that upon the information received by the office of the DRI, the information was duly recorded by the empowered office and the same was placed before the Senior Officer who acting upon it consituted a team of officers to intercept and apprehend the aforesaid truck.
It has further been submitted that after the truck was apprehended, upon its search, huge quantity of 628.280 Kgs. of Ganja which is a contraband and a narcotic substance in terms of the NDPS Act was receovered from the said truck. It has also been submitted that the aforesaid quantity of Ganja was concealed in a special cavity created in the Truck. Upon opening the said cavity in the truck, 146 packets were recovered which were tested and were confirmed to be Ganja. Samples were taken from the said packets and thereafter were sent for forensic examination whereas the remaining quantity was sealed.
The learned counsel for the respondent DRI further submits that in terms of Section 37 of the NDPS Act, the finding has to be recorded that the applicant has not committed any offence and also that the applicant shall not commit any crime while on bail and unless the aforesaid conditions are found existing, the bail cannot be granted.
The learned counsel for the respondent DRI has further submitted that as per the statement of the applicant recorded under Section 67 of the NDPS Act., he has stated that Sri Rajveer Singh son of Nirpat Singh resident of Aligarh is the owner of the aforesaid consignment of Ganja. Sri Rajveer Singh was also called for questioning and he tendered his statement under Section 67 of NDPS Act and admitted that he is the owner of the said consignment of Ganja which was brought from one person Madi of Amarkot. Thus, it is submitted that apparently the applicant is a carrier and is a part of a well organized syndicate dealing with contraband articles.
The learned counsel has also submitted that as per the statement of the applicant himself, he stated that he had smuggled the Ganja for Rajveer Singh, 5 times in the past, for which he got Rs. 10,000/- for each trip. In the aforesaid circumstances, it is submitted that the applicant does not deserve to be enlarged on bail and his application is liable to be dismissed.
The Court has considered the submissions and also perused the record.
At the very outset, as far as the submission of learned counsel for the applicant regarding non-compliance of Section 42 and Section 50 of the NDPS Act is concerned, the same does not impress this Court, inasmuch as, bald allegations have been made whereas the compliance of the aforesaid provisions has been explained by the respondent in its counter affidavit.
Moreover, as held by the Apex Court in the case of Karnail Singh Vs. State of Haryana reported in 2009 (8) SCC 39 that the question regarding the compliance of Section 42 is a question of fact to be decided in each case. So also regarding the Section 50 of the NDPS Act it has been held by the Apex Court in the case of Vijay Sinh Chandubha Jadeja Vs. State of Gujrat reported in 2011 (1) SCC 609 that the comliance of Section 50 of the NDPS Act is also a question of fact to be seen at the time of trial. Hence, in view of the settled position, this plea regarding violation of Section 42 and 50 of the NDPS Act is turned down at this stage.
Now, coming to the other submissions, it is not disputed that the applicant along with Veerpal was driving the truck from which huge quantity of Ganja was recovered. It is the case of the applicant that is merely a truck driver, however, his statement recorded under Section 67 Cr.P.C. which can be used against the applicant indicates that he had the knowledge regarding the contraband concealed in the special cavity in the truck.
At this stage, it will be relevant to notice certain provisions of the Act which are being reproduced hereinafter:-
It will be relevant to notice that Section 2 (viii) and Section 2 (viiib), Section 2 (xxiv), Section 2 (xxviii) of the NDPS Act define the words ''conveyance', ''illicit traffic', ''to import inter-State' and ''to transport' as under:-
"Section 2 (viii):- "Conveyance" means a conveyance of any description whatsoever and includes any aircraft, vehicle or vessel;
Section 2 (viiib):- " illicit traffic", in relation to narcotic drugs and psychotropic substances, means -
(i) cultivating any coca plant or gathering any portion of coca plant;
(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;
(iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub-clauses (i) to (iii); or
(v) handling or letting out any premises for the carrying on of any of the activities referred to in sub-clauses (i) to (iv); other than those permitted under this Act, or any rule or order made, or any condition of any licence, term or authorisation issued, thereunder, and includes (1) financing, directly or indirectly, any of the aforementioned activities;
(2) abetting or conspiring in the furtherance of or in support of doing any of the aforementioned activities; and (3) harbouring persons engaged in any of the aforementioned activities;] Section 2 (xxiv):- ''to import inter-State" means to bring into a State or Union territory in India from another State or Union territory in India;"
Section 2 (xviii):- "to transport" means to take from one place to another within the same State or Union Territory;
Significantly, Section 35 of the NDPS Act provides for presumption of culpable mental state and Section 8 (c) of the NDPS Act prohibits the possession, sale, purchase and transport of any contraband.
It will equally be relevant to mention that the concept of possession in context with Section 35 of the NDPS Act has been considered in detail by the Apex Court in the case of Mohan Lal Vs. State of Rajasthan reported in 2015 (6) SCC 222 .
Thus, applying the aforesaid principles and the provisions of the Act to the facts and circumstances of the instant case, it would indicate that the applicant was driving a private truck which had a hidden cavity containing 146 packets weighing total quantity of 628.280 Kgs. of Ganja, which was seized, and needless to say is a prohibited article as provided under Section 2 (iii) (b) of the NDPS Act and is also of commercial quantity.
Hence, prima facie, the applicant did have the possession and dominion over the same as explained by the Apex Court in the decision of the Mohan Lal (Supra), there is nothing from the side of the applicant to rebut the same, accordingly, at this stage, the aforesaid plea regarding the applicant not knowing and merely being a truck driver not having conscious possession does not have force and is turned down.
This Court has dealt with the provisions of the Act as well as considered the scope of Section 37 of the NDPS in the case of Vinay Kumar Mishra Vs. Union of India in Bail Application No. 10163 of 2019 decided on 24.07.2020 and the relevant portion thereof reads as under:-
"Now, at this stage, this Court relegates itself to Section 37 of the NDPS Act to ascertain its mandate while considering an application for bail. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29-5-1989 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 27-A 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."
Thus, from the perusal of the aforesaid provision, it would be clear that no person who is accused of an offence punishable under Section 19, 24 or 27 A and also for offences involving commercial quantity shall be released on bail or his own bond unless the Public Prosecutor had been given an opportunity to oppose the bail application and where the Public Prosecutor opposes the bail application, the Court is required to satisfy itself that it has reason to believe that the applicant is not guilty of such offence and that he is not likely to commit the offence while on bail.
This legislative mandate is required to be considered by the Court while considering an application for bail under the NDPS Act. The aforesaid provision has been the subject matter of interpretation and consideration in large number of cases and is very well settled.
In the case of Union of India Vs. Ram Samujh and Another reported in 1999 (9) SCC 429, the Apex Court in paras 6 to 8 has held as under:-
6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt. (emphasis supplied)
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 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24) "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.
Similarly, The Apex Court in the case of Union of India Vs. Shiv Shanker Kesari reported in 2007 (7) SCC 798 has held as under:- The relevant extract of the said report is quoted hereinunder:-
"6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; 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. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
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.
.....
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.
12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."
The Apex Court in the case of Union of India Vs. Rattan Malik Alias Habul reported in 2009 (2) SCC 624 in paras 12 to 15 has held as under:-
"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by 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 twin 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. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari [(2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505] ). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of "not guilty". At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
15. Bearing in mind the above broad principles, we may now consider the merits of the present appeal. It is evident from the afore-extracted paragraph that the circumstances which have weighed with the learned Judge to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. In our opinion, the stated circumstances may be relevant for grant of bail in matters arising out of conviction under the Penal Code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in clause (b) of sub-section (1) of Section 37 of the NDPS Act."
Lately, the Apex Court in the case of State of Kerala Vs. Rajesh reported in 2020 SCC OnLine SC 81 after noticing the earlier decisions on the aforesaid point regarding grant of bail has held as under:-
"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.
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 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." "
In light of the decision of this Court in the case of Vinay Kumar Mishra (Supra) which deals with the provisions of the Act and other binding precedents of the Apex Court in detail, hence, this Court is unable to draw any strength from the two decisions relied by the learned counsel for the applicant as the said orders neither deal with Section 37 and other provisions of the Act nor the decisions of the Apex Court, hence, does not qualify to be a binding precedent laying any law.
Thus, in view of the aforesaid legal position as extracted above, prima facie for the purposes of consideration of this bail application, this Court is unable to form a satisfaction that there are reasonable grounds to believe that the applicant is not guilty of the offence and thus cannot persuade itself to acceed to the prayer for being enlarged on bail.
Accordingly, the application for bail is rejected. It is clarified that any observation made in this judgment may not be construed as an expression on the merits of case and is solely for the purpose of this bail application and shall not affect the trial. Since the applicant has been in Jail since 17.02.2019, accordingly, the Trial Court is directed to expedite the trial.
[Jaspreet Singh, J.]
Order Date: 30.07.2020
Asheesh