Allahabad High Court
Man Singh vs Union Of India Thru Intelligence ... on 27 January, 2020
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 2 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10700 of 2019 Applicant :- Man Singh Opposite Party :- Union Of India Thru Intelligence Officer, N.C.B. Lko Counsel for Applicant :- Krishna Mani,Brajesh Kumar Singh,Ravi Pratap Singh Yadav Counsel for Opposite Party :- Ashish Pandey Hon'ble Suneet Kumar,J.
Heard learned counsel for the applicant and Sri Ashish Pandey, learned counsel for the opposite party and perused the material placed on record.
The allegation is that on information, the truck carrying contraband Ganja was intercepted by the Narcotic Control Bureau (for short "N.C.B."), Lucknow; 681.40 kg. Ganja was stacked in sacks. The driver of the truck did not stop on being signaled and tried to crush an officer of the N.C.B. On chasing the truck, the driver and the cleaner tried to escape from the spot. An F.I.R. under Section 307 I.P.C. was lodged against the driver of the vehicle, Arun Kumar Dixit. On being arrested, the driver in his voluntarily statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "N.D.P.S. Act"), before the officer stated that the Ganja seized on 28.07.2018, was loaded by him from Tezpur (Assam) and Cooch Bihar (West Bengal) upon the direction of the applicant. The said consignment was to be delivered to a party at Azamgarh and another at Raebarely. The mobile numbers of the applicant was provided. The cleaner of the truck, Sudhakar Mishra reiterated the same facts in his voluntary statement that the contraband Ganja was loaded on the direction of the applicant.
The summons were issued to the applicant; voluntary statement was recorded under Section 67 of the N.D.P.S. Act, wherein he accepted his involvement in trafficking of 681.40 kg. Ganja, which was seized on 28.07.2018. It is admitted that on the direction of the applicant, 281 kg. Ganja was loaded by one Manik Dada and Swapan of Cooch Beehar (West Bengal) and 400 kg. Ganja was loaded by one Nath of Tezpur (Assam) in the seized truck. The destination of the consignment was to be supplied in Uttar Pradesh. After recording the statement, the officers having reasonable belief that the applicant was involved in illicit trafficking was put under arrest for violation of Section 8/20/27A/29 N.D.P.S. Act.
Learned counsel for the applicant submits that the applicant could not have been arrested on the confessional statement made under Section 67 of the N.D.P.S. Act; co-accused Kali Baksh Singh @ Rajan has been enlarged on bail by this Court; the confessional statement cannot be read against the applicant. Reliance has been placed on decision rendered in Union of India Vs. Bal Mukund and others, 2009 (12) SCC 161, Mohammed Fasrin Vs. State represented by the Intelligence Officer (2019) 8 SCC 811, Surinder Kumar Khanna Vs. Intelligence Officer, Directorate Revenue Intelligence, Kashmira Singh Vs. State of Madhya Pradesh, Tufan Singh Vs. State of Tamil Nadu and Union of India Vs. Shiv Shankar Keshari, (2007) 7 SCC 798, to contend that the N.D.P.S. Act is complete code relating to Narcotic substance; the provisions are penal which can, in certain cases, deprive a person of his liberty for a minimum period of 10 years and can also result in sentence which can extend upto 20 years or even death sentence under certain circumstances. The provisions, therefore, have to be strictly construed and the safeguards provided therein have to be scrupulously and honestly followed. It is further urged that the Supreme Court has referred the issue to larger Bench for decision on the question whether the Investigating Officer under N.D.P.S. Act would qualify as Police Officer or not. The related issue whether the statement recorded by the Investigating Officer under Section 67 of the N.D.P.S. Act can be treated as confessional statement or not, even if the officer is not treated as Police Officer.
Learned counsel appearing for the N.C.B. has opposed the bail application and submits that the conditions specified in Section 37 (1) (b) (ii) is in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force on granting of bail. Liberal approach in matter of bail under the N.D.P.S. Act is uncalled for. Reliance has been placed on the decision of the three Judge Bench reported in Satpal Singh Vs. The State of Punjab, reported in 2018 (13) SCC 813 and State of Kerala ETC. Vs. Rajesh ETC., Criminal Appeal Nos. 7309-7312 of 2019 decided on 24.1.2020.
It is further contended that mere reference to a larger Bench on an issue would not dilute the law with regard to the consideration mandated while considering the bail application under the N.D.P.S. Act. Under Section 67 of the N.D.P.S. Act, voluntary statement before the officer is admissible against the accused, the onus is upon the applicant to adduce evidence that it was rendered under threat and co-ersion during trial and not at this stage.
Having regard to the facts and circumstances of the case and rival submissions advanced by the respective parties and material brought on record, it is not the case of the applicant that the statement recorded under Section 67 of the N.D.P.S. Act was not voluntarily, co-ersion or threat was meted upon the applicant; Section 37 (1) (b) (ii) and sub-Section (2) 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) xxx xxx xxx (b) xxx xxx xxx (i) xxx xxx xxx
(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."
The Apex Court in State of Kerala Vs. Rajesh (supra) upon considering the law with regard to bail under N.D.P.S. Act, held that the Court would have to record a finding mandated under Section 37 of the N.D.P.S. Act, which is a sine qua non for granting bail to the accused. The submission of learned counsel is that bail has been granted to the other co-accused is of no consequence for the reason that the consideration that prevailed upon the Court to grant bail to the other accused will not absolve the act of the accused from the rigour of Section 37 of the N.D.P.S. Act.
Without expressing any opinion on the merits of the case and considering the submission advanced, I find no good ground for grant of bail to the applicant - Man Singh, involved in N.C.B. No.17 of 2018, under Section 8/20/27A/29 N.D.P.S. Act, P.S. Narcotics Control Bureau, District Lucknow.
Accordingly, the bail application is rejected.
Order Date :- 27.1.2020 Atul