Gauhati High Court
Pranab Das vs Union Of India on 18 September, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/12
GAHC010101762020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln. 1483/2020
1:PRANAB DAS
S/O- LATE RAMSARUP DAS, R/O- SATGAON KUSHPARA, P.O- UDAYAN
VIHAR, P.S- SATGAON, PIN- 781027 DIST- KAMRUP(M), ASSAM
VERSUS
1:UNION OF INDIA
REP. BY SC, NCB, GUWAHATI ZONAL UNIT, GUWAHATI, ASSAM
Advocate for the Petitioner : MR D GOGOI
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 18-09-2020 This application under Section 439, Code of Criminal Procedure, 1973 (CrPC) has been filed by the accused-petitioner, Sri Pranab Das seeking bail in connection with NDPS Case no. 102/2019, arising out of NCB Crime no. 09/2019, under Section 8(c), Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act, for short) and punishable under Section 21(C) and Section 29 of the NDPS Act.
2. Heard Mr. D. Gogoi, learned counsel for the accused-petitioner and Ms. P. Das, learned counsel appearing for respondent Narcotics Control Bureau (the NCB, for short).
3. Learned counsel for the accused-petitioner has made his submissions in three-folds. Firstly, Mr. Page No.# 2/12 Gogoi has submitted that on the basis of the materials collected by the investigating agency it cannot be said that the same are sufficient to come to a reasonable conclusion that the accused-petitioner is guilty of the offences alleged. Secondly, it is submitted that the accused-petitioner was arrested on 19.06.2019 and since then, he is in custody waiting trial. Thus, considering the long period of detention and submission of offence report after completion of investigation, the accused-petitioner may be released on bail imposing conditions. Thirdly, the offence report has been submitted by the NCB against four accused persons viz. (1) Sri Pranab Das i.e. the accused-petitioner, (2) Sri Ashis Barman, (3) Md. Insan Ali, and (4) Sri Ratan Chirania. One of the said four accused persons, Md. Insan Ali is still in abscondance. The accused person, Sri Ratan Chirania has been granted the benefit of regular bail by this Court by an order dated 07.04.2020 passed in Bail Application (BA) no. 761/2020. Learned counsel for the accused-petitioner has also submitted that he has knowledge that the accused person, Sri Ashis Barman has also been granted bail on medical ground as the said accused person is stated to have been suffering from cancer. He has, however, submitted that he could not lay his hands on any document and/or details to substantiate the said fact. In support of his submissions he has referred to the decisions in Moti Ram and others vs. State of Madhya Pradesh, (1978) 4 SCC 47; Raju Premji vs. Customs, NER, Shillong Unit, (2009) 14 SCC 496; and Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence, (2018) 8 SCC 271 .
4. Learned counsel appearing for the respondent NCB has submitted that the Bureau had seized 1077 bottles of Codeine based cough syrup from the possession of the accused-petitioner. It has been submitted that the Codeine based cough syrup is a manufactured drug and evidently, the quantity seized was commercial quantity. She has further submitted that the accused-petitioner had failed to show proper documents with regard to the contraband seized from his possession. It is also submitted that the accused- petitioner in his statement had admitted that he had carried out the transaction in return of money and also admitted about carrying contraband on an earlier occasion also. It is stated that the accused-petitioner had earlier preferred a bail application, B.A. No. 2913/2019 before this Court and this Court had rejected the said bail prayer by an order dated 24.09.2019. Vehemently objecting to the prayer for bail, learned counsel for the respondent NCB by submitting a written objection, has placed reliance in the judgments of the Hon'ble Supreme Court of India in Md. Sahabuddin and another vs. State of Assam, (2012) 13 SCC 491; State of Kerala, etc vs. Rajesh, AIR 2020 SC 721 and Satpal Singh vs. State of Punjab, (2018) 13 SCC
813. Reliance is also placed in the 3-Judges Bench decision dated 22.04.2020, rendered in Criminal Appeal No. 722 of 2017 [Hira Singh and another vs. Union of India and another]
5. I have duly considered the submissions of the learned counsel for the parties and perused the materials placed before the Court. I have also gone through the decisions on which the learned counsel for the parties have placed reliance in support of their respective submissions and reference in this regard Page No.# 3/12 would be made in the later part of this order.
6. The case of the prosecution, as could be culled out from the documents and materials placed before this Court, is as follows :
6.1. At about 6-00 p.m. on 18.06.2019, Intelligence Officer, NCB, Guwahati Zonal Unit received an information from a reliable source to the effect that 10 cartons of cough syrup with Codeine Phosphate content but without legitimate/proper documentation, would be carried by the accused-petitioner in a vehicle, a Maruti Swift bearing registration no. AS-01/AF-4033 (hereinafter referred to as "the subject-
vehicle", for convenience) from Narengi to Nagaon via Six Mile, Guwahati and the subject-vehicle would reach near T-point of Shree Sai Mandir Road, VIP Road, Chachal, Guwahati ("the spot", for short) at about 10-00 p.m. on 18.06.2019.
6.2. The said information was reduced into writing and submitted before the Superintendent, NCB, Guwahati on 18.06.2019 and on being directed, a team with one Anjani Kumar who was authorised to search, seize and arrest as Investigating Officer (I.O.), was formed. At around 9-40 p.m., the team reached the spot. It is stated that the team by sharing information, called for the assistance of two independent witnesses in order to carry out probable search in their presence. The subject-vehicle, as per information above, was noticed by the NCB team to have been approaching the spot, as per information received, at about 10-10 p.m. 6.3. On having seen the subject-vehicle appraching, the NCB team with the independent witnesses alongside it, stopped the subject-vehicle on the road and as it came to a halt, the team encircled the subject-vehicle and requested the driver i.e. the accused-petitioner to come out of the subject-vehicle as he was the only person found inside the subject-vehicle. On being asked by the team, the accused- petitioner identified himself.
6.4. Thereafter, search was carried out inside the subject-vehicle. During search, 05 nos. of brown coloured carton packets were found at the back seat of the subject-vehicle. On further search, another 04 nos. of brown coloured carton packets were recovered from the rear side boot space of the subject-vehicle. All 09 packets were taken out from inside the subject-vehicle and the accused-petitioner was asked to open all the packets. On being opened, 1107 nos. of bottles of Bestorex cough syrup containing Codeine Phosphate were found inside those 09 carton packets. The details on the label on the cartons, inter-alia, showed as Bestorex Cough Syrup, Shanker Mfg. by Three B Healthcare Ltd., Marketed by - Quality Bestochem Formulation (P) Ltd. and those were marked as P-1 to P-9 respectively. On being asked, the Page No.# 4/12 accused-petitioner failed to produce any documents for possessing/transporting/selling etc. of the seized contraband.
6.5. As per the label, each bottle contained Codeine Phosphate : 10 mg and Chlorpheniramine Maleate IP : 4 mg. One bottle from one of the packets, P-9 was drawn and thereafter, was tested with drug detection kit. The result was positive. On reasonable belief that offences under the NDPS Act had been committed, all 1077 nos. of bottles were seized. 2 nos. of samples of one bottle each from Packet no. P-9 were taken by following the necessary procedure in presence of the two independent witnesses. Thereafter, the remaining 1075 bottles were kept inside the respective carton boxes and those were wrapped and labeled as P-1 to P-9. Those were sealed with brass seal and signed by the accused- petitioner and the two independent witnesses. Other articles including an amount of Rs. 4,100/- were also seized from inside the subject-vehicle by preparing seizure memos. The subject-vehicle was also seized. The search-cum-seizure process was completed at about 00-50 hrs on 19.06.2019.
6.6. Thereafter, a notice under Section 67, NDPS Act was stated to have been served on the accused- petitioner for recording of his voluntary statement. The seized contraband was deposited into the NCB godown at 01-00 hrs on 19.06.2019 under receipt. Voluntary statement of the accused-petitioner is stated to had been recorded wherein the accused-petitioner was stated to have admitted his guilt. On the basis of said statement recorded under Section 67, NDPS Act and other materials, the accused-petitioner was arrested at 03-00 hrs on 19.06.2019 and was produced before the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati (the CJM, Guwahati, for short) on that day. After endorsement of the learned CJM, Guwahati, the seized contracband, articles/documents and samples were deposited in the Malkhana of NCB on 19.06.2019.
6.7. The original sample (S1) of contraband was sent to the Forensic Science Laboratory, Guwahati (the FSL, for short) on 20.06.2019 for chemical examination. The Chemical Examination Report was received from the FSL on 23.07.2019. As per the Report of the FSL, the test gave positive result of presence of Codeine Phosphate in Bestorex Codeine based cough syrup.
6.8. A Report was stated to have been prepared and submitted before the immediate superior official on 20.06.2019 in compliance of Section 57, NDPS Act. An Investigation Officer (I.O.) was appointed in the meantime and the file was handed over to him on 20.06.2019 to carry out further investigation.
6.9. During investigation, the source of the contraband was found to be one M/s Shivaji Drugs Distributor, Guwahati. Sri Ratan Chirania, the proprietor of M/s Shivaji Drugs Distributor, Guwahati was served with a Page No.# 5/12 notice under Section 67, NDPS Act. Sri Ratan Chirania appeared before the NCB. It was found out that Sri Ratan Chirania through M/s Shivaji Drugs Distributor, Guwahati sold Bestorex cough syrup to M/s Rikibul Drugs Distributor, Dhula, District - Darrang, Assam, Proprietor - Md. Insan Ali. Though two notices separately under Section 67, NDPS Act were sent to Md. Insan Ali initially by dak and later on, by effecting service physically he did not appear before the NCB. The owner of the subject-vehicle viz. Sri Sanjoy Kumar Giri was served a notice under Section 67, NDPS Act and he appeared before the NCB. In his statement, Sri Sanjoy Kumar Giri stated that he had given the subject-vehicle to the accused-petitioner on the date of the incident and he also submitted the vehicle papers. The Zimma petition filed by Sri Sanjoy Kumar Giri for custody of the subject-vehicle was in the meantime, got rejected by the Court. Investigation was also made as regards suspected involvement of one Sri Padum Bahadur Sonar in the alleged transaction.
6.10. Irregularities were found in the transaction involving Bestorex cough syrup to M/s Rikibul Drugs Distributor by Sri Ratan Chirania, proprietor, M/s Shivaji Drugs Distributor, Guwahati. In the course of investigation, it had emerged that the accused-petitioner was entrusted the task of delivering the contraband materials at Nagaon by one Chand Mohammad. Upon further investigation, it had emerged that the accused-petitioner was to hand over the contraband materials to one Safiqul. Upon further trail, the NCB had found that the real name of Safiqul is Sri Ashish Barman. Sri Ashish Barman @ Safiqul is a resident of Nagaon, Assam.
6.11. Upon completion of investigation, the NCB submitted the offence report under Section 36 (1)(d), NDPS Act before the jurisdictional court against four accused persons viz. (1) Sri Pranab Das i.e. the accused-petitioner, (2) Sri Ashis Barman, (3) Md. Insan Ali, and (4) Sri Ratan Chirania on 12.12.2019. Before the Court of Sessions (Special Judge), Kamrup (M), Guwahati, NCB Crime no. 09/2019 has been registered and numbered as NDPS Case no. 102/2019.
7. It is contended that 1077 bottles of Bestorex Codeine cough syrup is commercial quantity since per the Notification No. 1893 of the Government of India, Ministry of Finance published in the Official Gazette on 18.11.2009, the whole quantity of each bottle is to be taken. The content of Codeine in each bottle is not the yardstick for that purpose.
8. In Hira Singh (supra), the 3-Judge Bench of the Hon'ble Supreme Court of India in its Judgment rendered on 22.04.2020, has held that in case of seizure of Narcotics Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotics Drugs or Psychotropic Substances. One of the questions Page No.# 6/12 before the Hon'ble Supreme Court in Hira Singh (supra) was as to whether while determining the small or commercial quantity in relation to narcotic drugs or psychotropic substances in a mixture with one or more neutral substance(s), the quantity of neutral substance(s) is not to be taken into consideration or it is only the actual content by weight of the offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. After a detail reference to the various provisions of the NDPS Act and the notifications issued in that regard by the Government of India, the Hon'ble Supreme Court has observed as under :-
8.2. Therefore, considering the statement of objects and reasons and the preamble of the NDPS Act and the relevant provisions of the NDPS Act, it seems that it was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity. Right from sub-clause (viia) and (xxiiia) of Section 2 of NDPS Act emphasis is on Narcotic and Drug or Psychotropic Substance (Sections 21, 22, 23, 24, 27 and 43). Even in the table attached to the Notification dated 19.10.2001, column no. 2 is with respect to name of Narcotic Drug and Psychotropic Substance and column nos. 5 and 6 are with respect to "small quantity and commercial quantity". Note 2 of the Notification dated 19.10.2001 specifically provides that quantity shown against the respective drugs listed in the table also apply to the preparations of the drug and the preparations of substances of note 1. As per Note 1, the small quantity and commercial quantity given against the respective drugs listed in the table apply to isomers ....., whenever existence of such substance is possible. Therefore, for the determination of "small quantity or the commercial quantity" with respect to Narcotic Drugs and Psychotropic Substance mentioned in column no. 2 the quantity mentioned in the clauses 5 and 6 are required to be taken into consideration. However, in the case of mixture of the narcotic drugs / psychotropic drugs mentioned in column no. 2 and any mixture or preparation that of with or without the neutral material of any of the drugs mentioned in table, lesser of the small quantity between the quantities given against the respective Narcotic Drugs or Psychotropic Substances forming part of mixture and lesser of commercial quantity between the quantities given against the respective drugs or psychotropic substance forming part of the mixture is to be taken into consideration. As per example, mixture of 100 gm is seized and the mixture is consisting of two different Narcotic Drugs and Psychotropic Substance with neutral material, one drug is heroin and another is methadone, lesser of commercial quantity between the quantities given against the aforesaid two respective Narcotic Drugs and Psychotropic Substance is required to be considered.
For the purpose of determination of "small quantity or commercial quantity", in case of entry 239 the entire weight of the mixture / drug by whatever named called weight of neutral material is also required to be considered subject to what is stated hereinabove. If the view taken by this Court in the case of E. Micael Raj vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161 is Page No.# 7/12 accepted, in that case, it would be adding something to the relevant provisions of the statute which is not there and/or it was never intended by the legislature.
8.3. .......................................................... Therefore, what is harmful or injurious is the entire mixture / tablets with neutral substance and Narcotics Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated . There may be few punishment for "commercial quantity". Certainly that would not have been the intention of the legislature.
(Emphasis supplied)
9. Mention of Codeine is found in Entry no. 28 in the Table appended to the NDPS Act in terms of sub- clause vii(a) and xxiii(a) of Section 2 of the NDPS Act. As per the Report of the FSL dated 08.07.2019, stated to have been received by the NCB on 23.07.2019, the chemical analysis gave positive tests for Codeine (present as Codeine Phosphate) and the amount of Codeine Phosphate in the sample was found to be 169.4 mg. Viewed in relation to the total quantity seized in the case in hand, it is prima facie evident that the quantity of the contraband seized is commercial quantity. Learned counsel for the accused- petitioner has not made any submission in this regard at this point.
10. At this stage, it is apposite to refer to Section 37 of the NDPS Act. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29.05.1989 with further amendment by Act 9 of 2001, 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;
(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 Page No.# 8/12 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."
11. It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others, (1991) 1 SCC 705 that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of granting bail.
12. Section 37 of the NDPS Act starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section (2) of Section 37 of the NDPS Act makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and
(ii) that he is not likely to commit any offence while on bail, have to be satisfied. In other words, t hese limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. T he conditions mentioned in Section 37 of the NDPS Act are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
13. In Satpal Singh (supra), the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of Section 37, NDPS Act have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail.
14. 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.
Page No.# 9/12 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 [Collector of Customs, New Delhi vs. Ahmadalieva Nodira, [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., AIR 2020 SC 721 ]. The Court while considering the application for bail with reference to Section 37 of the NDPS Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
15. In Mohd. Sahabuddin (supra), the two appellants were driver and cleaner of a truck which was intercepted and wherein upon search, large number of cartons of cough syrups were found concealed along with household articles. For transporting such huge quantity of pharmaceutical products, the driver of the truck could not produce any valid documents. In view of the conduct of the appellants in having huge quantity of cough syrup without valid documents, it was held that when the appellants were not in a position to explain as to whom supply was meant either for distribution or for any licensed dealer dealing with pharmaceutical products and in the absence of any valid explanation for effecting the transportation of such huge quantity of cough syrups which contained narcotic substance of Codeine Phosphate beyond the prescribed limit, the application for bail cannot be considered.
16. The decision in Moti Ram (supra) is not of any assistance to the accused-petitioner as the same was in reference to bail qua the provisions in the Code of Criminal Procedure, 1973 and it was rendered when the Narcotic Drugs and Psychotropic Substances Act, 1985 [61 of 1985], more particularly, Section 37 thereof and its subsequent amendments did not come into force.
17. In Surinder Kumar Khanna (supra), the accused-appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act. In that case, the basis for his conviction was confessional statements of co-accused, purportedly recorded under Section 67, NDPS Act. It is held therein that a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co- accused and can at best be used or utilized in order to lend assurance to the Court. In that case, 2 (two) of the co-accused persons were intercepted while they were traveling in a vehicle and contraband was seized from them. The accused-appellant was not with those two co-accused persons in the vehicle wherefrom the contraband was seized. The facts in Surinder Kumar Khanna (supra) are not similar to the case in hand and unlike the present accused-petitioner the accused-appellant in Surinder Kumar Khanna (supra), at the relevant time of search and seizure, was not in the vehicle wherefrom the contraband was seized. Thus, Page No.# 10/12 the decision in Surinder Kumar Khanna (supra) is also of no assistance the present accused-petitioner.
18. In Raju Premji (supra), the appellants therein were convicted under Section 29 of the NDPS Act for abetment thereof as they purported to have associated themselves with finding prospective buyers in disposing of the contraband. Two other accused persons were convicted for possessing contraband (heroin). All the accused persons made statements purported to be under under Section 67, NDPS Act. The Supreme Court has observed that if it is assumed that such confessional statements are not hit by Section 25 of the Evidence Act, 1872 but even then they must receive strict scrutiny. The Court must inter-alia satisfy itself that such statement had been made voluntarily. Whether a confessional statement is voluntary and free from any pressure must be judged from the facts and circumstances of the case. The above observations are made by the Supreme Court in Raju Premji (supra) in appeals preferred by the accused persons after their convictions were affirmed by the High Court. In the case in hand, the Court is considering an application of the accused-petitioner for bail during the pendency of the trial and the evidence in the trial are yet to be led.
19. From the materials discussed above, it has emerged that the contraband was recovered from the subject-vehicle (Maruti Swift, AS-01/AF-4033) on 19.06.2019 when the accused-petitioner was the only occupant in the vehicle. The materials prima facie show that search and seizure was carried out by the NCB team in presence of two independent witnesses. In the statement stated to have been recorded under Section 67, NDPS Act, the accused-petitioner admitted the carriage of the contraband in the subject-vehicle for the purpose of transport in it for delivery to Nagaon. The search and seizure appeared to have been carried out in a public place. A large quantity of contraband was recovered and this Court, at this stage, is not persuaded to arrive at a view that the contraband was planted/kept in the vehicle of the accused- petitioner by somebody else. The materials prima facie establish that the accused-petitioner was in possession of the contraband. Whether such possession was conscious possession or not conscious possession has to be established by the accused-petitioner during the course of the trial on the basis of the evidence to be led therein because it is for him to show how he came in the possession of the contraband as it would be within his special knowledge. It is the case of the prosecution that the accused-petitioner had transported contraband in a similar manner earlier. Considering the above facts and circumstances, even after keeping aside the statement of the accused-petitioner purported to have been made under Section 67, NDPS Act from the purview, this Court is not persuaded to reach a finding that there are reasonable grounds for believing that the accused-petitioner is not guilty of the offences alleged against him. Given the projection made, it is also difficult to say that if allowed bail the accused-petitioner would not commit an offence similar to the one in the case in hand.
Page No.# 11/12
20. The principle of parity in criminal case is that where the case of an accused is similar in all respects as that of another accused the benefit extended to an accused should be extended to the co-accused. The principle is based on the premise that likes should be treated alike. For bringing in the application of the principle of parity, both the accused must be involved in the same crime and must be involved in the similar manner. All the circumstances of the case are to be taken into consideration while considering the application of the principle of parity and the Court has to consider the manner in which the crime was committed and overt or covert acts which are attributed to the accused before the Court and that of the co-accused. When there are differences, the principle of parity would have no application.
21. While granting bail to the accused, Sri Ratan Chirania in BA No. 761/2020, the Court considered the projections made by the applicant and the prosecution. As per the applicant, he had a valid licence under the Drugs and Cosmetics Act and he purchased the drugs as licensed stockiest and sold it to licensed distributors. It was submitted that the same could be construed as violation of provisions of the Drugs and Cosmetics Act. The prosecution contended that other than M/s Rikibul Drugs Distributor, a licensed chemist, the applicant sold cough syrup to other persons also who had no licence. Having considered that essentially, the case of the said applicant is based on the licence and on the purchase document and the sale documents of the drugs the prayer for bail of the said applicant was granted as it would for the trial court to consider whether the provisions of the NDPS Act could be invoked against the applicant. As no document as regards grant of bail in respect of Sri Ashis Barman on medical ground is placed before this Court this Court refrains from making comment on that. But this Court finds that the present application for bail of the accused-petitioner cannot be considered on the principle of parity, given the different manner of involvement of the accused persons in the alleged crime.
22. The previous application of the accused-petitioner for bail, BA No. 2913/2019 was considered by this Court on 24.09.2019 on the basis of the materials made available including the case diary, before the Court on that day. Finding presence of incriminating materials including the positive result in the FSL report, found available in the case diary against the accused-petitioner and considering the rigours of Section 37, NDPS Act, the Court rejected the said application by order dated 24.09.2019. As the present application has been filed after submission of the offence report under Section 36 (1)(d), NDPS Act by the NCB before the jurisdictional court on 12.12.2019 the Court has considered the same on the basis of the materials placed before it and having gone through the materials, this Court has not found any good and sufficient ground to depart from the view which was taken earlier. In an application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, it is not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act which are required to be considered.
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23. In view of the above discussion, this Court finds that the application is bereft of any merit. Consequently, the same is dismissed.
24. It is, however, made clear that the observations made above are only in respect of consideration of the present petitioner's prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioner.
JUDGE Comparing Assistant