Uttarakhand High Court
Bhuwan Bhatt vs State Of Uttarakhand on 22 April, 2020
Equivalent citations: AIRONLINE 2020 UTR 445
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Short Term Bail Application No.04 of 2020
Bhuwan Bhatt .........Applicant
Vs.
State of Uttarakhand ...........Respondent
With
Short Term Bail Application No.05 of 2020
Laxmi Datt Bhatt .........Applicant
Vs.
State of Uttarakhand ...........Respondent
Hon'ble Alok Kumar Verma, J.
After rejection of regular bail applications of the applicants on merit, these short term bail applications are moved to release the applicants on short term bail for three months.
2. The Short Term Bail Application No.04 of 2020 is filed in connection with the F.I.R. No.0026 of 2019, registered with Police Station Pati, District Champawat for the offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as "the Act, 1985").
3. The Short Term Bail Application No.05 of 2020 is filed in connection with the F.I.R. No.27 of 2019, registered with Police Station Pati, District Champawat for the offence punishable under Section 8/20 of the Act, 1985.
24. The applicants filed exemption applications to exempt the applicants from filing affidavits and submitting Court Fees in the light of lockdown.
5. These applications along with annexures are filed through e-mail during COVID-19, pandemic lockdown.
6. Both these short term bail applications are related to one recovery memo, therefore, both these applications are consolidated to decide by this common order.
7. Heard Mr. Sanjay Bhatt, learned counsel for the applicants and Mr. J.S. Virk, learned Additional Government Advocate assisted by Mrs. Manisha Rana Singh, learned Assistant Government Advocate for the State of Uttarakhand, through video conferencing.
8. The learned Additional Government Advocate appearing for the State has no objection on the exemption applications.
9. The Exemption Application (CRMA) No.972 of 2020, filed with Short Term Bail Application No.04 of 2020, and the Exemption Application (CRMA) No.973 of 2020, filed with Short Term Bail Application No.05 of 2020, are accepted with the condition that the directions of the Notification No.86/UHC/Admin.B/2020 dated 11.04.2020 and Notification No.89/UHC/Admin.B/2020 dated 18.04.2020 of this High Court will be followed by the applicants.
10. The regular bail applications of the applicants have been rejected by this Court vide order dated 18.03.2020, passed in First Bail Application No.33 of 2020, Laxmi Datt Bhatt Vs. State of Uttarakhand and First Bail Application No.35 of 2020, Bhuwan Bhatt Vs. State of Uttarakhand.
311. Facts, to the limited extent necessary, are that an F.I.R. was lodged by Yogesh Datt, Station Officer of regular Police Station Pati, District Champawat on 09.12.2019 at 4:10 a.m. with the allegations that at 12 midnight, i.e. 00:00 hour of 08.12.2019, when the informant Station Officer, Police Station Pati, along with other police personnels were on routine checking at Chilkachina Tiraha, one motorcycle was coming from Dhoonaghat. The Police party directed to stop. Two persons (present applicants) were riding on the said motorcycle. They tried to turn the motorcycle, but, they fell down. On suspicion, they were apprehended and interrogated. During interrogation, both the applicants disclosed that they were carrying illegal Charas (contraband). They were informed about their right to be searched before the Magistrate/Gazetted Officer. They gave their consent to search in front of Gazetted Officer. Accordingly, Mr. Dhyan Singh, Circle Officer of the Police, of Champawat was informed and in presence of him search was conducted. During search, 1 kg 500 gram illegal Charas (Contraband) was recovered from the possession of the present applicant Bhuwan Bhatt and 1 kg 250 gram illegal Charas (Contraband) was recovered from the present applicant Laxmi Datt Bhatt. The said contraband were recovered from the bag of the applicant Bhuwan Bhatt and from the plastic bag of the applicant Laxmi Datt Bhatt. After recovery of the said contrabands from the bags of the applicants, personal search of both the applicants were conducted. In personal search, one smart phone and Rs.200/- were recovered from the right pocket of the trouser of the applicant Bhuwan Bhatt and a mobile and Rs.8,000/- were recovered from the right pocket of the trouser of the applicant Laxmi Datt Bhatt. After recovery, the recovered contraband were sealed. Due to night and seclusion, no public witness could be found. The F.I.Rs. were registered. Thereafter, the 4 applicants along with recovered contraband were produced before the court and in the presence of the concerned court, the samples were taken and sent to the Forensic Science Laboratory. The investigation is going on.
12. The learned counsel appearing for the applicants submits that the investigation may not be completed shortly due to lockdown and after investigation the trial may take considerable time because of unforeseen situation being faced by entire world. The learned counsel for the applicants submits that the applicants are living below poverty line and the applicants are only breadwinner for their families, who are in custody since 09.12.2019, and now there is complete lockdown, therefore, the family members of the applicants have reached to the condition of starvation and in case applicants are enlarged on bail for a short period of three months, they can manage the family affairs and make the proper arrangement for their families.
13. Both the learned counsel appearing for the State opposed the short term bail applications and submit that after rejection of regular bail applications of the applicants on merits, the present short term bail applications are not maintainable; for enforcement of the lockdown boundaries of all the districts are sealed; local authorities are providing food to the people as required.
14. This Court on 18.03.2020 made following order on the regular bail applications of the applicants:-
"8. The preamble of the Act, 1985 shows that the object of this Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations 5 relating to narcotic drugs and psychotropic substances etc.
9. At this stage, it seems appropriate to notice the provisions of Section 50 and Section 37 of the Act, 1985. The provisions of Section 50 and Section 37 of the Act, 1985 are to the following effects:-
"Section 50:- Conditions under which search of persons shall be conducted-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided 6 under Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-
two hours send a copy thereof to his immediate official superior."
"Section 37:- Offences to be cognizable and nonbailable--(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".
10. The learned counsel for the applicants relied upon a judgment of the Hon'ble Supreme Court in the 7 case of State of Rajasthan Vs. Parmanand and another, (2014) 5 SCC 345, where the Hon'ble Apex Court observed as under:-
"Para 15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, Respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent No.2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application"
11. The learned counsel for the applicants relied upon a Judgment in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609, where the Hon'ble Supreme Court observed as under:-
"Para 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would 8 not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well".
12. In this matter, the FIR's disclose that in spite of an endeavour, no independent witness could be secured. In the case of Makhan Singh vs. State of Haryana, 2015(4) CCSC 1790, the Hon'ble Apex Court has held that compliance with Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc, which the accused may be carrying ought to be searched. In that matter, since the vehicle was searched and the contraband was seized from the vehicle, the Hon'ble Apex has held that the compliance with Section 50 of the Act, 1985 was not required.
13. The learned counsel for the applicants submit that in the light of the Judgment in Vijaysinh Chandubha Jadeja (Supra) endeavour should be made by the arresting officer to produce the applicants before nearest Magistrate, whereas no such endeavour was made by the arresting officer to produce the applicants before the nearest Magistrate. The learned counsel for the State rebuts the submissions of the learned counsel for applicants and submits that the arresting Officer, Yogesh Datt, had stated in his statement, recorded under Section 161 of the Cr.P.C., that this fact was in the knowledge of this witness that Sub Divisional Magistrate of Pati went to Champawat. Champawat is a Head Quarter.
Therefore, the Sub-Divisional Magistrate was not requested to come on the spot. The learned counsel for the applicants further submit that this statement 9 is against the actual fact since the arresting Officer didn't say anything regarding the non-availability of SDM in his earlier statement, recorded under Section 161 of the Cr.P.C., and on the query of the court on 13.03.2020, the further statement of Yogesh Datt, arresting Officer, was recorded on 15.03.2020 under Section 161 of the Cr.P.C. These submission are question of fact. Thus, it is to be looked into by the court during trial and may not be looked into for consideration of these bail applications. Moreover, in Arif Khan alias Agha Khan Vs. State of Uttarakhand, (2018) 18 SCC 380, after noticing Vijaysinh Chandubha Jadeja (Supra), the Hon'ble Supreme Court observed, "keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the N.D.P.S. Act while making search and recovery of the contraband "Charas" from the appellant, and if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband "Charas" from the appellant in conformity with the requirements of Section 50." The Hon'ble Apex Court further observed, "......... . Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section 50 of the N.D.P.S. Act except in the 10 presence of either a Magistrate or a Gazetted Officer; ..........."
14. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV of the Act and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application.
15. Section 37 of the Act, 1985 contains specific provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are- (i) In the case of a person accused of an offence punishable under Section 19, (ii) under Section 24, (iii) under Section 27-A, and (iv) for offences involving commercial quantity.
16. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, 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 Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In Criminal Appeal No(s) 11 154-157 of 2020, State of Kerala Vs. Rajesh and others, the Hon'ble Supreme Court has held on 24.01.2020 that the expression "reasonable grounds"
means something more than prima facie grounds, and
(ii) that person is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied.
17. In State of M.P. Vs. Kajad, (2001) 7 SCC 673, the Hon'ble Supreme Court has held that negation of bail is the rule and its grants an exception under (ii) of clause (b) of Section 37(1) of the Act, 1985.
18. In Criminal Appeal No(s) 154-157 of 2020 (Supra) the Hon'ble Supreme Court has held that liberal approach in the matter of bail under the N.D.P.S. Act is uncalled for.
19. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the accused is in 12 custody for more than one year, may not be a relevant consideration to release the accused on bail.
20. In the light of the facts and circumstances of the present case, it cannot be said that mandatory conditions, as mentioned above, have been satisfied. From the perusal of the evidences, collected during investigation so far, it prima facie appears that the applicants were involved in this offence. No reason is found to falsely implicate the applicants/accused persons. Therefore, there is no good ground to release the applicants-accused persons on bail at this stage. The bail applications are liable to be rejected. Both the bail applications are rejected accordingly.
21. It is clarified that the observations made regarding the bail applications are limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail applications should be allowed or not and the said observations shall not effect the trial of the case."
15. The World Health Organization has declared COVID-19 as a pandemic. Nationwide lockdown from 25th March, 2020 is announced. The National Disaster Management Authority has directed the Central Government as well as the State Governments to take necessary action for curbing the menace of outbreak of COVID-19. Several guidelines are issued including restrictions on movement of persons. The State of Uttarakhand is also facing the challenge of fighting the menace of this pandemic. Total 46 number of COVID-19 positive cases are detected till date. Public transports are not functioning. Travelling in violation of lockdown will be against the condition of lockdown and can be 13 hazardous for everyone including applicants. According to the learned counsel appearing for the applicants, the main reason for filing these short term bail applications is that the family members of the applicants are at the verge of starvation since food is not available to them during this period of lockdown, whereas, it is an accepted fact that the local authorities are providing food to the people as required during the period of this lockdown.
16. On overall consideration of the applications, this Court does not find any ground to entertain present short term bail applications. Therefore, these short term bail applications do not deserve to be entertained. Consequently, the present short term bail applications are rejected.
(Alok Kumar Verma, J.) 22.04.2020 Sanjay