Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 20 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No.1607/2019 Reserved on : 13th September, 2019 Date of Decision: 20th September, 2019 ____________________________________________________________ Devender ... Petitioner.
Versus State of Himachal Pradesh Coram:
r to ...Respondent The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1YES For the Petitioner : Mr. Yashveer Singh Rathore and Mr. Ajit Sharma, Advocates.
For the Respondent : Mr. Nand Lal Thakur, Additional Advocate General, for the State.
Anoop Chitkara, Judge The petitioner, who was a link in the transport chain, is in judicial custody on accusations of criminal conspiracy by acting as a cohort of the main accused detained for possessing commercial quantity of Charas, has come up before this Court seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 22. I have waded through the Police file in FIR No.3/2019, dated 12.7.2019, under Sections 20 and 29 of the Narcotics Drugs and .
Psychotropic Substances Act, 1985, (After now called as NDPS Act), registered in Police Station, SV&ACB, Mandi, District Mandi, HP, which was returned to the Police official, through learned Additional Advocate General.
Status report is also filed and taken on record. I have also heard the counsel for the parties.
3. The gist of the case necessary to decide the present bail application is that in the morning of 12.7.2019, police on the basis of some prior information, had recovered 3.934 Kilograms of Canabis (Charas) from a pillion rider named Hem Raj. The said motorcycle was being driven by one Narayan Dass. Both of them were arrested and arraigned as accused under Sections 20 and 29 of the NDPS Act. During investigation, the Police arrested one Ram Lal @ Raju and also arraigned him as an accused. On 19.7.2019, police investigated a person named Manish Kumar @ Manu.
After investigation, Police got his statement recorded under Section 164 of the Code of Criminal Procedure. It is on the basis of the statement of Manish Kumar @ Manu that the Police arraigned the petitioner as an accused and arrested him for criminal conspiracy punishable under Section 29 of NDPS Act.
4. I have gone through the copy of the statement of Manish Kumar @ Manu, recorded under Section 164 of the Code of Criminal Procedure, on ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 3 19.7.2019, which forms part of the Police file. This statement is in Hindi script and refers to FIR No.3/2019 dated 12.7.2019, registered in Police .
Station, SV&ACT, Mandi, District Mandi, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the Act').
5. The gist of the statement is that Manish Kumar was a taxi driver of taxi bearing No.HP-01M-2545 and he knew Ram Lal who is the co-accused herein. On 10.7.2019, in the morning at 6:00 a.m., Ram Lal made a phone call to him and asked him that one person named Devinder (petitioner herein) will meet him and he would further tell him about one of his relative who is to travel with him. He also gave him the phone number of Devinder.
After driving 7-8 Kilometers, Devinder met him, who told him that 2-3 Kilometers ahead; he would come across that person. After traveling 2-3 Kilometers, a person gave signal to stop the vehicle and he inquired if he had been deputed by Raju and they shook hands with him. On this, Manish Kumar inquired from him that who was the person who had to travel in his taxi. On this, the petitioner told him that a relative of those persons has expired and they have already informed Raju about the same. However, the said person put a carton and a bag in the dickey of the vehicle. On opening the zip of the bag, it contained apricots. The petitioner gave 4-5 apricots to Manish to eat. The said person told Manish Kumar to handover these articles to Raju. Thereafter, he returned from the said place towards ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 4 Padhar. After sometime, the petitioner called him on his mobile and told him that he is going to Padhar and asked him to reach there. On his way to .
Padhar, when he reached near Pandoh, then the petitioner again called him and asked him to come to Ner Chowk because wife of Raju was critically ill.
Thereafter, the moment he reached near Shanidev temple, then he noticed Raju who was in his vehicle HP-65-6329 and the petitioner was also sitting with Raju and the petitioner signaled him to stop. Thereafter, the petitioner sat in the vehicle of Manish Kumar and asked him to drive further. At that time, he noticed that a white colour scooty was following them, which was being driven by a very stout male. He brought his scooty near the car and asked him to stop. On this, the petitioner also asked him to stop. At that time, the petitioner handed over the said carry bag to the person who had come on scooty. It was the same bag which was kept in his vehicle at Banjar. After taking the bag, the said stout person drove away the scooty.
After that, when they had traveled for some time, then petitioner got down from the vehicle. Thereafter, Raju gave him fare of Rs.8,000/- instead of Rs.4,000/-. He further stated that after one or two days, he saw a video on Facebook,which was regarding the arrest of cannabis smuggler. On this, he recognized the said person to be the same to whom the petitioner Devinder had handed over the bag.
6. Mr. Yashveer Singh Rathore, learned counsel, appearing for the petitioner, submits that there is a contradiction of the taxi numbers and also ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 5 the fact that in the statement under Section 164 of the Code of Criminal Procedure, the person to whom the petitioner had handed over the bag was .
driving a scooty, whereas the person from whom the Police had recovered the bag, was on the motorcycle. It is his further case that the bag containing Charas has not been identified from Manish Kumar @ Manu. His next contention is that, on such weak evidence, the liberty of the accused cannot be curtailed.
REASONING
7. There cannot be any quarrel with the metaphor that conspiracies are mostly hatched in secrecy and with utmost caution and care. A perusal of the statement of Manish Kumar recorded under Section 164 of the CrPC reveals how shrewdly the Charas was being taken from point A to point B and so on. Simply because the recovery was from the motorcycle, whereas Hem Raj, to whom the petitioner had handed over the bag was riding a scooty, does not mean that they had not changed the vehicles before being apprehended by the Police. What is important in this case, is the modus operandi, with which the Charas was being taken from one destination to the other. Apart from the statement of Manish @ Manu on identifying Devinder on the Facebook video, the Investigating Officer also gathered the evidence of call details of the said time period.
8. Ld. Counsel states that Manish Kumar @ Manu stands in the foot of the other accused and simply to bypass the provisions of S. 306 CrPC, the ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 6 police has made him a witness. This argument may not be admissible at the stage of bail and might be of some help during Trial. The Investigating .
Officer might not have arraigned Manish Kumar @ Manu as an accused for the reasons that according to the Investigating Officer, he was used as a tool to transfer the contraband without his knowledge. However, observations would not be construed as comment on his role, which are left to be decided at the stage of trial. For the purpose of deciding this bail petition, statement is admissible and, hence, the precedent relied upon by the accused is not attracted.
9. The narration of events revealed by Manish Kumar @ Manu does suggest that the petitioner was aware of the transportation of the contraband and it is suffice to say that the petitioner has failed to cross the check post of Section 37 of the NDPS Act. The quantity of Charas is greater than 1 Kg., which makes it a commercial quantity, attracting rigors of S. 37 of NDPS Act.
Resultantly before granting bail, this Court is under statutory obligation to deal with stringent conditions of Section 37 of the NDPS Act, which 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;::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 7
(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."
10. Reading of Section 37(1)(b)(ii) mandates that two conditions are 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 when the Public Prosecutor does not oppose the bail application. And the second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence and also he is not likely to commit any offence while on bail.
Be that as it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 8 fulfilling one of the conditions that the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance .
that the accused is not likely to commit any such crime. However, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case.
11. To understand that why is the present bail petitioner not entitled to the discretion of pre-arrest bail, the following illustration is relevant. Take somewhat an identical case where some person, when he sees the Police or when the cops challenge him, throws away his bag, containing the prohibited contraband in it, and runs away from the spot. At a later stage Investigating Officer arrests the person by claiming it was the same person who had run away on seeing the Police party. But such person leads primary evidence of alibi by proving his presence at some other place, or some allegations that the Police let off the real culprit, on some extraneous considerations, and that the Police is making him a scapegoat.
12. In the present case, there is not even a whisper or a word in the pleadings of the accused of some hostility with the Police personal.
13. The learned counsel for the petitioner has placed reliance upon the following judgments:-
(i) Nikesh Tara Chand Shah vs. Union of India and Anr., 2018 (11) SCC 1.
This judgment does not deal with Section 37 of the NDPS Act and it deals with the Prevention of Money Laundering Act, 2002.
::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 9(ii) The next judgment relied upon by the learned counsel is Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr., 2005 (5) SCC .
294. This case relates to a bail under Maharashtra Control of Crimes Act.
This is not applicable to decide the case under NDPS Act.
(iii) The third judgment, on which learned counsel places reliance is by a Co-ordinate Bench of this Court in Rehmat Ali vs. State of Himachal Pradesh, passed in Cr.MP(M) No.203/2019, on 8.3.2019, which deals with the offences under Sections 20, 25 and 29 of the NDPS Act. In the said case, the case against the bail petitioner was that he had helped the co-
accused transferring the contraband and the case against the petitioner was on the basis of a statement made by the co-accused. However, in the present case, statement under Section 164 CrPC was recorded of a witness and not of an accused.
14. Learned counsel has also placed reliance upon the landmark judgment of Dataram Singh v. State of Uttar Pradesh and Another, (2018) 3 SCC 22.
However, the said case was primarily of cheating for stopping the payment of cheque. This case does not deal with the rigors of Section 37 of NDPS Act and is not applicable.
15. The limitations stipulated in S. 37 of NDPS Act come into play only when the Courts are prima facie inclined to grant the bail and irrespective of the quantity of the contraband, S. 37 does not attract when the Courts are unwilling to give the bail.
::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 1016. When S. 37 of NDPS Act comes into operation then apart from the grant of opportunity to the public prosecutor, the other twin conditions which .
really have relevance are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative.
17. To understand the exact legal quandary involved in these matters, a brief survey of the judicial precedents pronounced by Hon'ble Supreme Court on S. 37 of NDPS Act, would be of immense help:
a) In Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705, Supreme Court holds,
6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The Narcotic Drugs And Psychotropic Substances Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The being the underlying object and particularly when the provisions of Section 37 of Narcotic Drugs And Psychotropic Substances Act are in negative terms limiting the scope of the applicability of the provisions of Criminal Procedure Code regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 Criminal Procedure Code are not subject to the limitation mentioned under Section 37 of Narcotic Drugs And Psychotropic Substances Act.
The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconistency between Section 439 Criminal Procedure Code and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37 prevails. In ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 11 this context Section 4 Criminal Procedure Code may be noted which read thus :
"(4) Trial of offences under the Indian Penal Code and other laws-
.
(1) All offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Criminal Procedure Code should be subject to such special enactment.
b) In Union of India v. Merajuddin, [2000] 3 RLW(SC) 406, a three member bench of Supreme Court while cancelling the bail, observed as follows, "The High Court appears to have completely ignored the mandate of Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The High Court overlooked the prescribed procedure."
c) In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, a three Judge bench of Supreme Court holds,
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused- respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused ::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 12 being not guilty has to be based for reasonable grounds. 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.
d) In Bijando Singh v. Md. Ibocha, 2004(10) SCC 151, Supreme Court holds,
3. Being aggrieved by the order of the Special Court (NDPS), releasing the accused on bail, the appellant moved the Guwahati High Court against the said order on the ground that the order granting bail is contrary to the provisions of law and the appropriate authority never noticed the provisions of Section 37 of the Narcotic Drugs And Psychotropic Substances Act. The High Court, however, being of the opinion that if the attendance of the accused is secured by means of bail bonds, then he is entitled to be released on bail. The High Court, thus, in our opinion, did not consider the provisions of Section 37 of the Narcotic Drugs And Psychotropic Substances Act. In this view of the matter, the order releasing the accused on bail by the Special Judge as well as the order of the High Court in revision are quashed. The accused should be taken into custody forthwith.
e) In N.C.B. Trivandrarum v. Jalaluddin A, 2004 (115) ECR 99, Supreme Court observed, "Be that as it may another mandatory requirement of Section 37 of the Act is that where Public Prosecutor opposes the bail application, the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. In the impugned order we do not find any such satisfaction recorded by the High Court while granting bail nor there is any material available to show that the High Court applied its mind to these mandatory requirements of the Act.
::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 13f) In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court holds:-
.
9... ... ... (7) The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing, that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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 hand the High Court seems to have completely overlooked underlying object of Section 37.
g) In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, Supreme Court holds,
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the Narcotic Drugs and Psychotropic Substances 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 Narcotic Drugs And Psychotropic Substances 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.::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 14
h) In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, a bench of .
three judges of Supreme Court directed that since the quantity involved was commercial, as such High Court could not have and should not have passed the order under sections 438 or 439 Cr.P.C., without reference to Section 37 of the NDPS Act.
i) In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, Supreme Court holds,
6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are :- (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. 7. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail.
8. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail.
9. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court.
"............................"::: Downloaded on - 26/09/2019 20:28:10 :::HCHP 15
18. In the facts and circumstances of the case, the petitioner is unable to clear the check-post of Section 37 of the NDPS Act. Resultantly, .
the petition stands dismissed. The dismissal of this bail shall not come in the way of the petitioner filing subsequent bail petitions.
Any observation made in this order shall not be taken as an expression of opinion on the merits of the case, and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.
(Anoop Chitkara)
r Judge
20th September, 2019 (KS)
::: Downloaded on - 26/09/2019 20:28:10 :::HCHP