Allahabad High Court
Salman Hashmi vs State Of U.P. Thru. Secy. Deptt. Of Home ... on 20 July, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:47482 [A.F.R.] Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9143 of 2023 Applicant :- Salman Hashmi Opposite Party :- State Of U.P. Thru. Secy. Deptt. Of Home Lko. Counsel for Applicant :- Ayodhya Prasad Mishra A.P. Mishra,Jaylaxmi Upadhyay,Rituraj Mishra Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant and learned AGA for the State as well as perused the record.
2. The FIR in question was lodged as Case Crime No.0178 of 2023 under Sections 419, 420 IPC read with Section 66 of Information Technology Act and under Section 12, 23, 24 of NDPS Act at P.S.-Wazirganj, District-Lucknow. The version as contained in the FIR on record reveals the recovery of 370 strips of allegedly prohibited drug Tramadol besides the cash, mobile, laptop, vehicle Mahindra Scorpio as well as one scooty was seized by the department. The allegation in FIR reveals that information was recieved that around Lucknow, the prohibited intoxicated medicines were being sold online and were being purchased online and huge money was being made out of said business. Based on the said information, a team was constituted and on the basis of information received from the Mukhbir that the said business was being carried out online through a call centre. A team was constituted comprising of as many as 6 to 7 persons. It further records that on 13.6.2023, an information was recieved that a king pin of the gang i.e. Salman Hashmi the applicant along with his accomplice was available at the Kesarbag flat where the said Salman Hashmi runs a call centre. Receiving the said information, a team was constituted which went on a Government Vehicle. Mukhbir further informed, as per the FIR in question, that the applicant has assembled in the flat in question for selling the medicine. Subsequently, it is recorded that the drug inspector was informed and he came and was informed that they were going to carry out the search in flat in question. On reaching the place, two persons including the applicant were present and on asking their names, they disclosed their names as Salman Hashmi and accepted that they sell the prohibited medicines through International gang.
3. It was allegedly admitted by the applicant, that they used to sell the prohibited drugs on the daily basis through their online platform like- Buy soma online, overnight delivery, buy soma meds, Online meds guru- buy soma xanax online, buy Tramadol online and online meds care. It also records that the applicant admitted that he used to make available the said prohibited drugs. It was also admitted by him that he used to get the money of the said prohibited drug in his account. It was allegedly admitted that the applicant used to sell the drugs in India and across the globe and used to earn lot of profits. It is also recorded that the applicant took the name of one 'Al-zaid', as his accomplice. In the said recovery, an identity card of the bar counsel of U.P. was recovered besides an ATM card and mobile, wrist watch and laptop and a service tag. It also records that the applicant informed that he has purchased vehicle out of the profit of the said business. From the other co-accomplice Al-zaid, certain recoveries including Aadhar card, ATM card, mobile phone were recovered.
4. Based upon the said submissions, as recorded herein above, the FIR further records that a view is formed that the applicant is involved in the import and export of medicine called Tramadol. It further records that from the mobiles recovered, several chats were shown as well as list of buyers was also revealed. It also records that substantial quantity of the said medicine Tramadol were kept in the vehicle which was recovered at the flat, it further records that the drug inspector who had gone along with the team, on inspection was of view that the Tramadol medicine cannot be kept by any person in excess of the quantity prescribed. It is also recorded that on the said drug Tramadol, batch number, date of manufacturing and expiry were not mentioned. The total quantity of Tramadol allegedly recovered was 370 strips of tablet-Tramef, 40 strips of tablet- Tramacet and 10 strips of Ultra King, 260 tablets of Nexdol-P which according to the FIR were above the commercial quantity. It is also recorded that in terms of the Government Order dated 26.4.2018, the small quantity of Tramadol is 5 grams and commercial quantity is 250 grams. It also records that no sample was drawn from the tablets Tramef-AP,Tramacet,Nexdol-P and Ultra King and 10-10 strips out of the total sample were taken for analysis and they were seen as such the applicant was charged under Section 419, 420 IPC and 66 of the I.T. Act read with Section 12, 23, 24 of NDPS Act.
5. Learned counsel for the applicant argues that the applicant is a lawyer and has been falsely implicated on account of a dispute with the police. He argues that without going into the said history, prima-facie the offence as narrated in the FIR is not made out. In support of the said arguments, he draws my attention firstly to Section 66 of the I.T. Act which prescribes for punishment for commission of offence under Section 43 with dishonest and fraudulent intention. He then draws attention to Section 43 of the I.T. Act ,which provides for penalty for damage of computer, computer system etc. without the permission of the owner or the other person who is in-charge of the computer, computer system or computer network. Section 43 and 66 of the I.T. Act are quoted herein below:
?Section 43. Penalty and compensation for damage to computer, computer system, etc. -If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network,-
(a) accesses or secures access to such computer, computer system or computer network 46 [or computer resource];
(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,
(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;]
(j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] 48 [he shall be liable to pay damages by way of compensation to the person so affected]. Explanation.- For the purposes of this section,-
(i) "computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer database" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means;
[(v) "computer source code" means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.
Section 66. Computer related offences.- If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
Explanation.--For the purposes of this section,--
(a) the word "dishonestly" shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860);?
6. Counsel for applicant also submits that for the sake of arguments, if all the allegations are treated to be gospel truth, no offence can be said to be made out under Section 66 of I.T. Act. Even otherwise he argues that the punishment prescribed under Section 66 of I.T. Act is three years, thus, the applicant is entitled to be enlarged on bail.
7. As regards Section 419 and 420 IPC, the submissions of the counsel for applicant is that to hold charge under Section 419 and 420 IPC, it is essential that ingredients of Section 415 should be necessarily be made. He takes me to the Section 415 of the IPC which defines cheating and provides that who ever by receiving dishonesty in person so deceived to deliver any property to any person and, thus, the Act as prescribed, is liable for punishment under Section 419 and 420 IPC. He further argues that from the plain reading of the FIR, even if all the allegations are treated to be gospel truth, no offence as defined under Section 415 can said to be made out and, thus, the applicant cannot be prosecuted under Section 419 and 420 IPC.
8. Learned counsel for applicant then takes me to the mandate of Section 12, 23 and 24 of the NDPS Act. Section 12 of the NDPS Act reads as under:
?12. Restrictions over external dealings in narcotic drugs and psychotropic substances.-No person shall engage in or control any trade whereby a narcotic drug or psychotropic substance is obtained outside India and supplied to any person outside India save with the previous authorisation of the Central Government and subject to such conditions as may be imposed by that Government in this behalf.?
9. Thus, Section 12 of the NDPS Act, prohibits any person from engaging in or control any trade whereby a narcotic drug or psychotropic substance is obtained outside India and supplied to any person outside India without sanction of the Central Government. In the light of the said, counsel for applicant argues that there is no allegation, even if for the sake of arguments, the allegations leveled are treated to be correct that any Tramadol tablet was procured from outside India and was sold to any person outside India and, thus, prima-facie, Section 12 cannot be said to be invoked against the applicant.
10. He further draws my attention to Section 23 and 24 of the NDPS Act. Section 23 of the NDPS Act which is read as under:
?23. Punishment for illegal import in to India, export from India or transhipment of narcotic drugs and psychotropic substances.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees or with both;
(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine; which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh.
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.?
11. The said Section bars and provides punishment for illegal import into India and export from India or transhipment of narcotic drug or psychotropic substances. He argues that phrase import and export under Section 23 have not been defined under the Act and, thus, the meaning assigned under the Customs Act would have to be taken into consideration. He argues that there is no allegation against the applicant importing anything into India or exporting anything out of India in the FIR and, thus, no offence can be said to be made, which is punishable under Section 23.
12. He next takes me to the mandate of Section 24 of NDPS Act, which prescribes for punishment to any person who is involved for external dealing in narcotic and psychotropic substance in contravention of Section 12. Section 24 of NDPS Act reads as:
?Punishment for external dealings in narcotic drugs and psychotropic substances in contravention of section 12.- Whoever engages in or controls any trade whereby a narcotic drug or a psychotropic substance is obtained outside India and supplied to any person outside India without the previous authorisation of the Central Government or otherwise than in accordance with the conditions (if any) of such authorisation granted under section 12, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.?
13. He argues that Section 24 of NDPS Act can never be read in isolation has to be read in conjunction with Section 12 and once the condition of Section 12 are prima-facie not invokable, Section 24 would have no relevance. He next argues that even if for the sake of arguments, all the allegations are treated to be true, the manner in which a belief has been formed with regard to quantity ceased is solely wrong as the chemical Tramadol is always quantified in milligrams whereas, in the present case, no such exercise of quantifying the chemical Tramadol was done and quantification was solely based upon the weight of the Tramadol which is contrary to law laid down in case of Union of India Vs. Balmukund and Ors. 2009 (12) SCC 161. He lastly argues that the applicant has no previous criminal antecedents and should be enlarged on bail.
14. Learned AGA vehemently opposes the bail application by arguing that it is well settled that the mandate of Section 37 of the NDPS Act has to be satisfied before grant of bail and condition as prescribed under Section 37(1)(b)(ii) have necessarily to be taken into consideration while considering the bail application, Section 37 of the NDPS Act reads as under :
?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 2[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 conditions prescribed under Section 37(1)(b)(ii) are essentially to be seen in respect of the offences under Sections 24 and also for the offence involving commercial quantity. The phrase ?reasonable ground for believing that he is not guilty? "for consideration before the Supreme Court in case of Mohd Muslim @ Hussain vs State (Nct Of Delhi) 2023 Live Law (SC) 260, wherein the Supreme Court had occasion to consider the scope of the phrase ?Reasonable ground? the Supreme Court held as under :-
?18. The conditions which courts have to be cognizant of are that 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. What is meant by ?not guilty? when all the evidence is not before the court? It can only be prima facie determination. That places the court?s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and439,CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences underSpecial Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws ? be balanced against the public interest.
19. A plain and literal interpretation of the conditions underSection 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted underSection 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted underSection 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused?s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held inUnion of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered bySection 37 of the Act, given the imperative ofSection 436Awhich is applicable to offences under theNDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.?
16. As regards the second part of the twin conditions, he argues that once the applicant has no criminal antecedents, the finding has to be recorded based upon the criminal antecedents as held by the Supreme Court in (Ranjitsingh Brahmajeetsing Sharma vs. State of Maharashtra and Another) (2005) 5 SCC 294.
17. Considering the said twin conditions, as regards, the reasonable ground for believing that the applicant is not guilty, on the analysis of the Section 12, 23 and 24 of the NDPS Act, as submitted by learned counsel for applicant and recorded above, prima-facie there is no allegation that the applicant used to import from outside and sell outside except for the confessional statement under Section 67 Cr.P.C. The alleged recovery of Tramadol, itself demonstrates that the offence under Section 12 cannot be said to be made out merely by recovery of Tramadol at the instance and pointing out the applicant as alleged in the FIR. The requirements of Section 23 are also prima-facie not fulfilled in terms of the allegations leveled in the FIR as there is no material to allege that any legal import was made into India or export from India by the applicant. Once the allegations of Section 12 are not made out, prima-facie the offence punishable under Section 24 of the NDPS Act may not also be sustained in the trial, thus, I have reasons to believe that prima-facie the applicant is not guilty of the offence and the prosecution may not be able to establish the guilt at the time of trial as held by the Supreme Court in case ofMohd Muslim @ Hussain (supra).
18. The argument of the learned AGA is that certain chats were discovered from the mobile phone and list of buyers were discovered from the mobile phone. Recovery of said chat and list, however, alone cannot be sufficient to allege the import and export from India or purchase/sale outside India solely based upon the recovery of the Tramadol, thus, I have no hesitation in holding that the prosecution, with the evidence may not be able to sustain the trial.
19. It is clarified that these observations made are tentative and the Trial Court should not be influenced by these observations recorded which are being recorded only for considering the bail at this stage.
20. The second condition of the twin conditions prescribed under Section 37, can also be recorded in favour of the applicant as he has no previous criminal antecedents, thus, on both the grounds coupled with the fact that the applicant does not have any criminal antecedent is entitled to be enlarged on bail. Apart from the conditions of bail specified there under, the applicant shall also surrender his passport and shall not leave India without the permission of the Court concerned.
21. Let the applicantSalman Hashmi be released on bail in Case Crime No.0178 of 2023 under Section 419, 420 IPC read with section 66 of the I.T. Act and under Sectin 12, 23 and 24 of NDPS Act, P.S.-Wazirganj, District-Lucknow subject to his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court below concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
Order Date :- 20.7.2023
-Amit K-