Allahabad High Court
Shahid vs Union Of India Thru. Intelligence ... on 11 April, 2023
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 07.02.2023 Delivered on 11.04.2023 Court No. - 29 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13825 of 2021 Applicant :- Shahid Opposite Party :- Union Of India Thru. Intelligence Officer Lko. Counsel for Applicant :- Deshraj Singh,Shiv Shankar Verma Counsel for Opposite Party :- Digvijay Nath Dubey Hon'ble Mrs. Renu Agarwal,J.
1. Heard learned counsel for the applicant, Shri Digvijay Nath Dubey, learned counsel for Union of India and perused the record.
2. By means of this application the applicant has prayed to be enlarged on bail in Case Crime No.01 of 2018, under Sections 8/20, 23, 25, 27, 28, 29 of the N.D.P.S Act, Police Station DRI Mahanagar District Lucknow.
3. As per prosecution case, opposite party filed a complaint case against eight person, including the applicant/accused, alleging therein that on specific information being received on 10.01.2018 at about 10.30 A.M. in the office of Directorate of Revenue Intelligence Zonal Office, Lucknow, that truck bearing No.H.R.38/P-938 is proceeding from Odisha to Orai via Jhansi, in which huge quantity of ganja is being transported for delivery at Orai. Accordingly a preventive team was constituted, consisting of Sunil Kumar Mathur, investigating officer, Dhirender Kumar, Gyanender Singh, Dharmender Kumar and Vinay Shankar tripathi alongwith driver Ashok Kumar and the team was directed to take fallow up action under the N.D..S. Act 1985. After taking two independent witnesses namely Sanjai Kumar and Pravesh Kumar from hussadiya crossing , the team proceeded towards Urai and reached there at about 06.15 P.M. and started waiting at Ajit Toll Plaza, where the team reached at about 07.00 P.M. It is further alleged that at about 08.40 P.M. a truck was spotted coming from Jhansi side bearing registration No.HR-38/P-938. When the said truck was stopped, two persons were found present in truck, one is driver Shahid, while another person disclosed his name Deepak Rana. A copy of First Information Report/Recovery Memo dated 11.01.2018is being annexed hereto as Exhibit Ka-1.
4. Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to ulterior motive. The applicant was the driver of the said truck and he was not aware of the fact that ganja is being transported in the aforesaid truck. It is also submitted that as per prosecution case the truck in which alleged recovered Ganja was being tranported was in the office of DRI Lucknow on 11.01.2018 at 10.00 A.M., while the G.D. Entry of Police Station, Chakeri, District Kanpur, reveals that the said truck was stopped by the police of police station, Chakeri on 11.01.2018 at about 02.20 P.M., which creates doubt on the alleged recovery as well as prosecution story. The complainant and investigating officer is the same person. Nothhing incriminating was recovered from the possession of the applicant. No independent witness has been produced by the police at the time of recovery, which creates doubt on the recovery itself. The recovery of contraband (Ganja) of 237.340 Kg. is false. The provisions of sections 42, 50(5) of NDPS Act are not complied with and the search has not been conducted according to the provisions of section 100 Cr.P.C., which is mandatory in nature. The provisions of sections 55 & 57 of NDPS Act have also not been complied with as the seal after packing the alleged contraband has not been handed over to the public independent witness and the information regarding the offence was not transmitted to the higher authorities within 24 hours. Co-accused have been released on bial in Case Crime No.01 of 2018 (Rahul Vs. State of U.P.) and (Brijkishore @ Birju Vs. State of U.P. and (Harswaroop Vs. State of U.P.) by Co-ordinate Bench of this Court by means of order dated 21.01.2021, passed in Criminal Misc. Case No.2160 of 2019(B) (Brijkishore @ Birju Vs. State of U.P.) and by this Court by means of order dated 21.01.2021, passed in Criminal Misc Case No.3142 of 2019(B) (Harswaroop Vs. State of U.P.). It is also submitted that accused has no criminal anticedents apart from this case and he is langushing in jail since 10.01.2018. If he is released on bail then he will not misused the liberty of bail and co-operate with the trial and he will not tamper with the prosecution witnesses and he will present himself before the court to face trial.
5. Per contra, learned A.G.A. on behalf of the DRI vehemently opposed the prayer for bail and submitted that no cause for falsely implicating the applicant has been disclosed by the applicant. Huge quantity of contraband ganja of 240.940 kg. was recovered from the vehicle in question from 18 plastic bages. The recovered substance is much higher than its commercial value which is 20kg, the applicant being an employee of the owner of vehicle must be aware of the nature of goods being transported by the vehicle, the burden of proof is upon the applicant to show that he was not aware of the illegal transportation of such a huge amount of ganja in the vehicle in question. Reliance is placed on the judgment of Supreme Court in the case of Union of India through Narcotics Control Bureau, Lucknow Vs. Md. Nawaz Khan reported at AIR 2021 Supreme Court 4476 to submit that once possession is established, the person who claims that it was not a conscious possession has to establish it. The relevant part of the judgment is reproduced below:
"Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge; Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law."
6. It is submitted that 240 kg ganja is said to have been recovered from the vehicle in question, and the applicant has failed to prove that he was not aware of the fact that contraband was being transported in the truck, the huge quantity of recovered ganja is much higher than its commercial quantity which is 20kg, the applicant has also failed to satisfy the Court that he is not likely to commit any offence while on bail in view of Section 37.(b)(ii) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
7. Learned counsel for NCB has placed reliance on the judgments of Supreme Court in the case of Narcotic Control Bureau Vs. Mohit Agarwal reported at AIR 2022 Supreme Court 3444; Union of India Vs. Rattan Mallik @ Habul reported at (2009) 2 Supreme Court Cases 624; Union of India Vs. Ram Samujh reported at AIR online 1999 SC 90 and State of Kerala Vs. Rajesh reported at AIR 2020 SC 721 to submit that the legislative mandate of Section 37 of the Act is required to be adhered and followed and without the satisfaction of Section 37 (2), the bail application of the applicant cannot be granted. Section 37 of the NDPS Act reads thus:
"[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 ground for believing that he is not guilty for such offence and that he is not likely to commit any offence while on bail."
Additionally the court must be satisfied that the accused person is unlikely to commit the offence while on bail.
8. In the impugned case the Court has already complied with Sub-Section 1 of Section 37 of the NDPS Act and learned counsel for NCB is present to argue. So far as the second condition i.e. the satisfaction is Court is concerned, it is provided that there must be reasonable ground for believing that the accused is not guilty of alleged offence and he is not likely to commit any offence while on bail. The satisfaction contemplated under section 37(2) of N.D.P.S. Act regarding the accused not being guilty is to be based on reasonable ground. Expression "reasonable ground" means something more than prima facie ground. It contemplates that there must be substantial and probable cause for believing that the accused is not guilty of the alleged offence.
9. Learned counsel for the applicant did not place any substance on record to substantiate that the accused is not guilty of the offence. It is apparent from the recovery memo that the accused was arrested along with incriminating material on the spot. It cannot be said at this stage that nothing has been found from the possession of accused. There is no material on record to persuade the Court to believe that the accused person is not guilty of offence and he will not commit the crime of such nature if he is released on bail. At the stage of bail, it cannot be taken into account as no explanation is made as to why he is falsely implicated in the case with such a huge recovery.
10. There is no sufficient ground to satisfy the Court for the grant of bail in the case of recovery of contraband goods much higher than the commercial quantity from the possession of accused without satisfying the mandatory requirement stipulated in Section 37 (1) (b) of the NDPS Act. The recovery is yet to be proved during the trial.
11. There is no material on record to satisfy the requirement of Section 37 of NDPS Act that the accused will not repeat the crime.
12. To check the menace of dangerous drugs flooded in the market, the mandatory condition provided in Section 37 NDPS Act are provided to release the accused which are not full-filled in the present case.
13. In these circumstances, the present bail application is liable to be rejected and is hereby rejected.
14. Lower court record, if any, be sent back to the count concerned, immediately.
(Renu Agarwal,J) Order Date :-11.04.2023/VKG