Punjab-Haryana High Court
Amit Kumar Alias Lucky vs Narcotics Control Bureau Chandigarh on 21 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:153938
CRM-M-37772-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.37772 of 2024
Reserved on: 06.11.2024
Pronounced on: 21.11.2024
Amit Kumar @ Lucky ...Petitioner
Versus
Narcotics Control Bureau, Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Anshul Jain, Advocate (Through VC)
for the petitioner.
Mr. Rajiv Sharma (Hisarwale), Senior Govt. counsel
for the respondent-NCB.
****
ANOOP CHITKARA, J.
CRIME No. Dated Police Station Sections
54/ 2022 23.08.2022 NCB Chandigarh 8, 20, 25, 28, 29, 60 & 62 of
Zonal Unit, Mohali NDPS Act, 1985
1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.
2. In paragraph 18 of the bail petition, the accused declares that he has no criminal antecedents.
3. The facts and allegations are taken from the reply filed by the State. On Aug 23, 2022, based on prior information, the NCB officers seized 1.114 kg of charas from a vehicle driven by the co-accused in which other co-accused were found present. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. The accused disclosed the petitioner as the seller of the charas, which led to his arrest and connection through call details.
5. The petitioner's counsel refers to the bail petition. It would be relevant to refer to para 7, which reads as follows:
"7. That it is pertinent to mention here that an accused confession cannot be used against the co-accused The statement of the accused leading to the 1 1 of 7 ::: Downloaded on - 23-11-2024 22:25:19 ::: Neutral Citation No:=2024:PHHC:153938 CRM-M-37772-2024 -2- discovery or the informatory statement amounting to confession of the accused cannot be used against the co-accused in the light of the case titled as "Kishore versus State Delhi Administration 1992 2 crime 169 Delhi".
➤ Then in similar case came before the Hon'ble Supreme Court of India in a Criminal No 296 of 2014 decided on 04.09.2019 titled as Mohammed Fasrin versus State of Represented by the intelligence officer cited as it 2019 4 RCR criminal 362, therein the accused were convicted for having committed offence under section 8 read with section 29, 21 and 23-C and 27-A of the NDPS Act observed that the confession of a co-accused is also no material value especially in the absence of any link evidence showing commission of the offence.
➤Then now in latest Hon'ble Supreme Court in judgement dated 29.10.2020 in criminal appeal no, 152 of 2013 titled as "Tofan Singh Vs State of Tamil Nadu" held that disclosure made by co- accused is not admissible evidence against the co-accused in term of section 67 of the NDPS Act."
6. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.
7. The State's counsel opposes bail and refers to the reply.
8. Dealing in 1.114 kg of charas is a punishable offense under the NDPS Act in the following terms:
Cannabis and cannabis resin/ Charas/ Hashish/ Substance Name Sulpha Quantity detained 1114 Gram Quantity type Commercial Drug Quantity in % to upper limit 111.40% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No. 23 Common Name (Name of Narcotic Drug and Psychotropic Substance Cannabis and cannabis resin (International non-proprietary name (INN) Other non-proprietary name CHARAS, HASHISH Chemical Name EXTRACTS and TINCTURES OF CANNABIS Small Quantity 100 Gram Commercial Quantity 1000 Gram 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.20 & S.2(iii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(iii) 2 2 of 7 ::: Downloaded on - 23-11-2024 22:25:20 ::: Neutral Citation No:=2024:PHHC:153938 CRM-M-37772-2024 -3- Common Name (Name of Narcotic Drug and Psychotropic Substance ****** (International non-proprietary name (INN) Other non-proprietary name ****** S.2(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink Chemical Name prepared therefrom;
(iv) "cannabis plant" means any plant of the genus cannabis; S. 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;
9. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
10. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for 1
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.3
3 of 7 ::: Downloaded on - 23-11-2024 22:25:20 ::: Neutral Citation No:=2024:PHHC:153938 CRM-M-37772-2024 -4- believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.
11. The State's Counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.
12. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these conditions is not met, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again.
13. It shall be appropriate to refer to paras 50 & 52 of the reply filed by NCB, which reads as follows:
" 50. That letter for obtaining CAF & CDR was sent to the Nodal Officer of Reliance JIO on 07.09.2022 in ro the mobilenumber-9671271076, 7015208359, 8930507474, 8700938685 related to arrested accused and 4 4 of 7 ::: Downloaded on - 23-11-2024 22:25:20 ::: Neutral Citation No:=2024:PHHC:153938 CRM-M-37772-2024 -5- supplier as provided by the accused in their voluntary statement. Further reminder letters for obtaining CAF & CDR were sent to the Nodal Officer of Reliance JIO in to the mobile number-
9671271076,7015208359,8930507474, 8700938685 and report was received on 10.09.2022 and documents are attached in the final complaint.
51. That the CDR analysis revealed that there are sufficient communication between Shivam, Lavish, Kabir and Koushal. After analysis of CDRs all accused were found connected with each other. The details of the same are as under :-
Name of Phone Name of Phone No. Numbers
accused number accused of calls
Lavish 9671271076 Kabir 7015208359 22 calls
Call details
from
01.07.2022
to
22.08.2022
Shivam 8930507474 Kabir 7015208359 71 calls
Call details
from
24.06.2022
to
23.08.2022
Shivam 8930507474 Koushal 8700938685 127
Call
details
from
24.06.2022
to
23.08.2022
52. That a letter was sent to Nodal Officer of BHARTI AIRTEL Ltd for CAF and CDR of mobile no-8570020028,9876330243and report was received and CDR,CAF copy are attached in the final complaint."
14. A perusal of the bail petition does not explain the calls and the reasons for making so much calls.
15. The submissions made above and the grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.
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16. Per the custody certificate, the petitioner's custody is 01 year, 02 months and 11 days, which cannot be considered prolonged.
17. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecution, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of investigation, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale letter and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in question was to be handed over to accused-Khalil Uddin, an owner of a tea shop.
[5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail after they had undergone custody to the tune of about a year. Questioning grant of relief to said accused, the instant appeals have been preferred.
[7]. What emerges from the record is that large quantity of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a question.
[8]. The answer to said question could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Section 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.
[9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matter stands on a different footing. In our considered view, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith.
[10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the matter and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.
18. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198- 2024, Hon'ble Supreme Court holds, 6 6 of 7 ::: Downloaded on - 23-11-2024 22:25:20 ::: Neutral Citation No:=2024:PHHC:153938 CRM-M-37772-2024 -7- The petitioners are in custody since 28th May, 2022 for alleged commission of alleged offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. As per the FIR allegation, 125.3 kg. of "Ganja" was recovered from the petitioners.
[3]. It is not in dispute that the trial has commenced and that three prosecution witnesses have been examined till date.
[4]. Learned counsel for the petitioners submits that the third prosecution witness was examined as far back as on 28th January, 2024 and since then, no other prosecution witness has been examined. There is, however, no such averment in the petition.
[5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecution to have all the witnesses examined by the end of this year.
[6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law.
[7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the petitioners shall be at liberty to renew their prayer for bail before the trial court.
19. A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.
20. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
21. Petition dismissed. Interim orders, if any, are recalled with immediate effect. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
21.11.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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