Rajasthan High Court - Jaipur
Avadhesh Sharma vs State Of Rajasthan Through Pp on 6 May, 2016
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc.Second Bail Application No.4165/2016 (Avadhesh Sharma Vs. State of Rajasthan) Date of Order ::::: 06.05.2016 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Arvind Kumar Gupta, for the petitioner. Mr.Anil Yadav,Public Prosecutor for State.
REPORTABALE The accused-petitioner has filed this second application for grant of bail under Section 439 Cr.P.C. in respect of FIR No.718/2015 registered at Police Station Shipra Path, Mansarovar, Jaipur for the offences under Sections 420, 487 and 120-B IPC and Sections 18 (a) (i), 27 (a), 27 (c), 27 (d), 18 (c), 27 (b) (ii) and Section 36-AC of the Drugs and Cosmetics Act, 1940. The first application filed by the petitioner was dismissed by this Court by a reasoned order dated 14.12.2015 at the stage of investigation after considering the evidence collected during investigation which was produced before this Court by way of case diary. Thereafter, charge-sheet has been filed against the petitioner for the aforesaid offences and cognizance has also been taken. It is to be noted that as the offences for which the charge-sheet has been filed against the petitioner are triable by the Court of Sessions Judge which has been declared to be a Court of Special Judge, the case was committed for trial to it which has been registered as Sessions Case No.45/2016.
Brief relevant facts for the disposal of this application are that aforesaid FIR came to be registered against the petitioner on 3.11.2015 at Police Station Shipra Path, Mansarovar, Jaipur at the instance of Drug Inspector complainant-Shri Bachan Singh Meena on the premise that on 2.11.2015 when the premises of petitioner were searched, he was found to manufacture several misbranded, adulterated and spurious drugs for the purpose of sale without any valid licence or permit. It was also alleged that the petitioner was found in possession of the large stock of such drugs which were seized and sealed. On the basis of aforesaid FIR, police undertook investigation and collected further evidence and finally charge-sheet was filed for the aforesaid offences in the Court of Additional Chief Judicial Magistrate No.11, Jaipur Metropolitan, Jaipur who took cognizance and committed the case for trial to Sessions Judge, Jaipur Metropolitan, Jaipur. The second application filed by the petitioner for grant of bail under Section 439 Cr.P.C. came to be dismissed by the Sessions Judge, Jaipur Metropolitan vide order dated 16.3.2016. Charge for offences under Sections 420 and 487 IPC and for offences under Sections 18 (a) (i), 18 (c) read with Sections 27 (c) and 27 (b) (ii) has been framed by the trial Court vide order dated 11.3.2016.
In support of the application, learned counsel for the petitioner raised the following grounds:-
(i) As per Section 32 of the Act, cognizance for an offence under the Act can be taken only on the basis of a complaint made by a Drug Inspector or any Gazzeted Officer of the Central Government or State Government authorised in writing in this behalf or by a person aggrieved or a recognized consumer association, but in the present case charge-sheet has been filed by the police which was not competent even to register an FIR and investigate an offence punishable under the provisions of the Act. As per this provision, police was not competent to laid charge-sheet and prosecution of petitioner on the basis of such charge-sheet is totally illegal.
(ii) Investigation has been conducted in the case violating all mandatory provision of the Act and Rules framed thereunder and the arrest of the petitioner is illegal and in violation of his fundamental rights.
(iii) That offence under Section 420 IPC is not made out even prima facie as essential ingredients to constitute the offence of cheating as defined under Section 415 IPC are not disclosed. It is not the case of prosecution that on the misrepresentation of petitioner any person delivered any property or other thing to him.
(iv) From the contents of charge-sheet and the documents filed alongwith it, it is clear that the provisions of Sections 21 and 22 of the Act have been violated and the procedure prescribed under Section 23 of the Act to take samples has not been properly followed. There is violation of Rules 55, 55 (a) and 57 also.
(v) As required under Section 23 of the Act one of the samples was not given to the petitioner and copy of the report of analyst was also not provided to him and in absence thereof, petitioner could not exercise his right to get the sample tested or analyses or to adduse evidence in contravention of the report received from the Government Analyst.
In support of his submissions, learned counsel for the petitioner relied upon the cases of State of Punjab Vs. National Organic Chemical Industries Ltd. reported in (1996) 11 SCC 613 and Jeevan Kumar Raut & Anr. Vs. Central Bureau of Investigation reported in AIR 2009 SC 2763.
On the other hand, learned Public Prosecutor submitted that there is no substantial change in the facts and circumstances of the case so as to grant benefit of bail to the petitioner.
I have considered the submissions made on behalf of the respective parties, material made available on record including the evidence collected during investigation which has been placed on record by way of charge-sheet and the relevant provisions and the case law.
For the disposal of this application for grant of bail, Section 36-AC of the Act is relevant, which may be quoted as below:
36AC Offences to be cognizable and non-bailable in certain cases.
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) every offence, relating to adulterated or spurious drug and punishable under clauses (a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable.
(b) no person accused, of an offence punishable under clauses (a) and (c) of sub-section (1) of section 13, clause (a) of sub-section (2) of section 13, sub-section (3) of section 22, clauses (a) and (c) of section 27, section 28, section 28A, section 28B and sub-sections (1) and (2) of section 30 and other offences relating to adulterated drugs or spurious drugs, 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:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs.
(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is 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.
(3)Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court designated under section 36AB.
This Section provides that notwithstanding anything contained in the Code of Criminal Procedure, every offence as mentioned in the provision shall be cognizable and no person accused of such offence shall be released on bail unless the Public Prosecutor has been given opportunity to oppose the application for such release and where Public Prosecutor opposes the application, the Court is 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.
Thus, the offences under the provisions of the Act for which charge has been framed against the petitioner are cognizable and as per provisions of the Code of Criminal Procedure, police was entitled to arrest the petitioner without seeking warrant from a Magistrate, FIR could be registered under Section 154, police had jurisdiction to undertake investigation and file charge-sheet as provided under Section 173 of Cr.P.C. Apart from that, Section 32 of the Act provides for prosecution of an accused on behest of an Inspector or authorities etc. mentioned in the Section and nowhere it provides that cognizance cannot be taken against an accused for offences under the Act except on a complaint filed by the person or authorities mentioned in the provision.
In view of the above, at this stage of the proceedings, I am of the view that despite the bar as provided under Section 32 of the Act, in the present case police was entitled to undertake investigation, collect evidence and submit charge-sheet and Court had jurisdiction to take cognizance under Section 190 Cr.P.C. even on the basis of charge-sheet and benefit of bail cannot be granted to petitioner merely on the ground that the procedure prescribed under Section 32 has not been followed.
Similarly, the offences under the Act for which charges have been framed against the petitioner are non-bailable and bail cannot be granted to him unless both the conditions as provided under Section 36 AC are fulfilled. This provision of the Act regarding bail is almost similar to Section 37 of the NDPS Act. It is well settled legal position that as per Section 37 of the NDPS Act, a person accused of offence under that Act cannot be released on bail during trial unless the mandatory conditions provided under Section 37 that there are reasonable grounds for holding that the accused is not guilty of such offence and that he is not likely to cmmit any offence while on bail are satisfied. When prosecution is for offence under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, these provisions cannot be ignored while dealing with an application for grant of bail. In the present case, the petitioner has been prosecuted for offences under the provisions of the Act and, therefore, while dealing with his application for grant of bail, in addition to the broad principles for grant of bail as provided under Code of Criminal Procedure, the relevant provisions of the Act in this regard had to be kept in view. As per Section 36 AC of the Act, apart from giving an opportunity to the Public Prosecutor to oppose the application for release on bail, the other twin conditions (i) the satisfaction of the Court that there are reasonable grounds for beliving that the accused is not guilty of the alleged offence; (ii) that he is not likely to commit any offence while on bail, have to be satisfied. 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" has not been defined in the Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence, he is charged with. The reasonable belief contemplated in turn, points to the 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 present case it is alleged that huge quantity of adulterated, misbranded and spurious drugs have been recovered from the possession of the petitioner. In view of the above, even if there is violation of some of the provisions of the Act and the Rules framed thereunder as submitted by the learned counsel for the petitioner, the same cannot be accepted as a valid ground to grant benefit of bail to the petitioner.
Consequently, the second application for grant of bail under Section 439 Cr.P.C. is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL), J teekam (Reserved order) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary