Allahabad High Court
Shiv Chand Sahani vs State Of U.P. And Another on 14 December, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 10 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13124 of 2020 Applicant :- Shiv Chand Sahani Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Chaudhary Counsel for Opposite Party :- G.A.,Ashish Pandey Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Arvind Kumar, Advocate, holding brief of Sri Rahul Chaudhary, learned counsel for the applicant, Sri Ashish Pandey, learned counsel for the complainant and Sri M.K. Dwivedi, learned AGA for the State.
By means of this application, the applicant, who is involved in Case Crime No. 01 of 2020 under Sections 8(C), 20(C), 28 & 29 of NDPS Act Police Station N.C.B. Lucknow (Pakbara Region, Moradabad) is seeking enlargement on bail during the trial.
Learned counsel for the applicant has submitted that the applicant has been falsely implicated in the present case. As per the prosecution story unfolded in the FIR dated 02.01.2020 the incident is alleged to have been taken place on 01.01.2020 and according to the search and seizure panchnama report dated 02.01.2020 contraband (Ganja) weighing 651.3 Kg was recovered which was in 296 bundles kept in 25 bags in truck. It is contended that no recovery was made from the person of the applicant nor any role has been assigned to him. As per the prosecution story except that he was sitting in one car which was standing 100 meter away from the offending truck. It is further contended that the applicant has been arrested by the police of C.A.B. Lucknow when he was going Delhi from Moradabad for his personal visit and had taken lift in a car, which was stopped for morning tea and breakfast. The only allegation against the applicant is that he was sitting in a Baleno car.
Learned counsel for the applicant further argued that the applicant was not in conscious possession of the contraband (Ganja) and there was no independent witness when the incident took place and no compliance of Section 50 of NDPS Act has been made by the arresting authorities. Further parity has been claimed as the other co-accused Mubarik Khan has been enlarged on bail.
Sri Ashish Pandey, learned counsel appearing for the complainant, while opposing the bail application on behalf of Narcotics Control Bureau (NCB) Lucknow, submitted that on information passed on by U.P. S.T.F. with regard to transportation of contraband (Ganja) by a truck bearing No. U.P. 21 CN 5618 from Orrisa to Pakwada, District Moradabad and the said contraband (Ganja) was to be delivered to one Atiqurrahman @ Pappu and his associates Jafsar Ali, Shiv Shankar Sahani (applicant) and Mubarik Khan. The said information was produced in writing and conveyed to Zonal Director on whose direction team was constituted and together with the S.T.F. stopped the truck as well as the Baleno car, Atiqurrahman @ Pappu, Jafsar Ali, Shiv Shankar Sahani and Mubarik Khan on being asked, the truck driver Mohd. Asgar disclosed that 680 Kg of contraband (Ganja) was kept and concealed in secret cavity of truck. The said contraband was seized and aforesaid persons were taken into custody. The statement of Mohd. Asgar, Jafsar Ali, Shiv Shankar Sahani (applicant) and Mubarik Khan were recorded under Section 67 of NDPS Act, 1985. In the said statement applicant had accepted to be involved in trafficking of Ganja for last three years and had come to Moradabad from Delhi for purchasing the same from Atiqurrahman @ Pappu. During investigation the call detail records of all the suspected mobile numbers were obtained and analyzed description of which has been given at page 14 of the counter affidavit. It is further contended that the applicant was having conscious and constructive possession over the recovered contraband (Ganja) as held by the Apex Court in case of Dehal Singh Vs. State of Himachal Pradesh, 2011 (72) ACC 661.
I have heard learned counsel for the parties and perused the material on record.
Section 37 of the Act governs the field for grant of bail in offences which are cognizable and non-bailable. Section 37 is extracted here 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 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."
According to the aforesaid provisions the Court before granting bail has to record reason that there are reasonable ground that the applicant is not guilty of such offence and furthermore that he is not likely to commit any offence while on bail. Apex Court while dealing with aforesaid provision in case of Union of India Vs. Ram Samujh, 1999 Supp. (2) SCR 76, held as under;
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary, Union Territory of Goa. [1990] 1 SCC 95 as under:
"With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine,"
8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that accused is not guilty of such offence; and
(ii) that he is not likely to commit while on bail."
In Union of India Vs. Shiv Shankar Kesari, 2007 (59) ACC 778, Apex Court elaborated and explained the conditions for granting of bail as provided under Section 37 of the Act. Relevant paragraph Nos. 6 and 7 are extracted here as under;
"6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
7. The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged."
In Union of India Vs. Rattan Mallik @ Habul, (2009) 1 Supreme Court Cases (Cri) 831, Apex Court observed as under;
"14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS 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 NDPS 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."
In recent decision of Apex Court in State of Kerala Etc. Vs. Rajesh Etc. AIR 2020 Supreme Court 721, Apex Court considered the scope of Section 37 and relying upon earlier decision in Ram Samujh (Supra) held as under;
"20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
21. 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 on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
Supreme Court while dealing with the question of possession and application of Section 50 in case of Megh Singh Vs. State of Punjab, 2003 CRI. L.J. 4329, held that word 'possession' includes conscious possession. Further Section 50 applies in case of personal search of a person and it does not extend to search of a vehicle or container or a bag or premises. Relevant paragraph nos. 9 to 13 and 16 are extracted here as under;
"9. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
10. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
11. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.
12. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).
13. 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 presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6) SCALE 483).
16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT1999 (8) SC 293), The State of Punjab v. Baldev Singh (JT1999 (4) SC 595), Gurbax Singh v. State of Haryana(2001(3) SCC 28). The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance."
While dealing with the provision of Section 50 of the Act, Apex Court in case of Dehal Singh (Supra), held that Section 50 relates to the search of a person and not of the vehicle and thus there was no requirement for informing the applicant of the right to be searched in presence of a gazetted officer of Magistrate.
The argument raised by learned counsel for the applicant that applicant was sitting in Baleno car which was 100 meter away from the offending truck from which contraband (Ganja) was recovered, thus, he cannot be linked to the said recovery, cannot be accepted as in the seizure memo it has come that the applicant had gone near the truck and the analysis of call detail records of between Atiqurrahman @ Pappu, Mohd. Asgar, Jafsar Ali, who were arrested, as well as of the applicant with one Munni Bhabhi, Pralad and Lagtoo were of procuring Ganja from Atiqurrahman @ Pappu, who was the kingpin, thus, story set-up in defence cannot be accepted.
Moreover, both the vehicles i.e. truck and Baleno car were intercepted by raiding party and the contraband (Ganja) was kept in a secret cavity in the truck and from which delivery was to be given to different people and applicant being one of them, thus, he was having constructive as well as conscious possession of the contraband (Ganja). Section 37 of NDPS Act envisages situation where the applicant has to satisfy that there are reasonable ground that he is prima facie not guilty of such offence and will not commit the same while on bail, as the contraband (Ganja) which has been recovered from joint possession is well above the commercial quantity to the tune of 651.3 Kg. Furthermore, compliance of Section 50, in the present case, is not attracted as the same relates to search of a person and not of the vehicle, while in the present case contraband (Ganja) was recovered from the truck and applicant was found near the truck where he had come to take the delivery of the same.
The argument that applicant has been falsely implicated by the police and the officers of NCB cannot be accepted as the contraband (Ganja) which is alleged to have been recovered is of very huge quantity of 651.3 Kg while commercial quantity is above 20 Kg. The police or the officials of NCB cannot plant such huge quantity of contraband (Ganja) as no motive or enmity has been alleged against them by the applicant.
Considering the aforesaid facts and circumstances of the case, I find that applicant has failed to make out a case for enlarging him on bail.
Bail application is rejected, accordingly.
Order Date :- 14.12.2020 Shekhar