Telangana High Court
Kurru Sankar Rao vs The Union Of India on 9 November, 2020
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.4199 OF 2020
ORDER:
This is an application for regular bail in NCB F.No.48/1/2/2019/NCB/SUB-ZONE/HYD. The petitioner is sole
accused in the said case. The offences alleged against him are under Sections 8 (c) read with 20 (b) (ii) (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). The petitioner is in judicial remand from 02.03.2019.
2. Heard Mr. Mohd. Muzafferullah Khan, learned counsel for the petitioner, and Mr. V. Gopalakrishna Gokhaley, learned Special Public Prosecutor for Narcotics Control Bureau appearing on behalf of the respondent. Perused the record.
3. It is alleged against the petitioner - accused herein that the respondent authorities have received confidential information that the petitioner herein is trafficking huge quantity of ganja in Eicher Goods Carriage No.AP 16TX 5757 concealed in Casuarina Poles. He will be traveling to Zaheerabad through Hyderabad via Aramghar - Rajendra Nagar Road on 01.03.2019. Accordingly, the respondent officials have intercepted the said vehicle. They have indicated the said vehicle to stop and found one driver present in the cabin. Then they have searched the vehicle and found ganja. On enquiry about trafficking of ganja, the petitioner herein replied in affirmative and said that he collected about 700 kgs. of ganja near Sabbavaram along with casuarinas poles from one Thota Trimurtulu, who is a Labour KL,J Crl.P. No.4199 of 2020 2 Contractor, for cutting casuarinas trees and he does not know the details of Thota Trimurtulu. The petitioner herein has further informed the NCB Officials that the said Thota Trimurtulu asked him to supply casuarinas poles and ganja to one Goud after crossing one kilometre from Zaheerabad Railway Gate.
4. It is further alleged against the petitioner herein that when the vehicle was superficially examined, it was found to contain casuarinas poles tied with rope. On enquiry, the petitioner replied that ganja is concealed beneath the load of casuarinas poles in the front side of the vehicle. On thorough search, it was found that they have arranged the poles of different sizes in such a way that from outside it looks as if the whole truck is loaded with long size casuarinas poles, but they have loaded 25 different colours viz., Blue, Green and Orange Colour Plastic Bags filled with ganja kept in front of the vehicle and then placed small size of casuarinas poles up to the height of plastic bags filled with ganja and on the top they have kept long size of poles. The NCB Officials have removed the casuarinas poles from the vehicle so as to recover the plastic bags suspected to contain ganja. 25 plastic bags were unloaded from the truck and re-arranged the casuarinas poles in the vehicle and tied with rope.
5. The plastic bags were opened one after the other and found dark brown colour suspected material with pungent smell and appearing as flowering and fruiting tops. The NCB Officials took one plastic bag and mixed properly. A small quantity of suspected KL,J Crl.P. No.4199 of 2020 3 material was tested with field drugs detection kit and gave positive result for ganja. The same procedure was carried out for remaining 24 plastic bags and all gave positive result of ganja and, thus, seized the entire contraband of 25 bags of ganja. The total weight of the seized ganja was 744.2 kgs. It is stated in the complaint that the NCB Officials have followed the procedure laid down under the NDPS Act. The petitioner herein has voluntarily given his statement under Section 67 of the NDPS Act and admitted his involvement in the procurement and transportation of ganja. He did the same for easy earning of money. Basing on his voluntary statement, the material objects and incriminating documents were seized. The petitioner was arrested on 02.03.2019. Thus, the accused has committed the aforesaid offences.
6. Mr. Mohd. Muzafferullah Khan, learned counsel for the petitioner, would submit that the respondent authorities did not follow the procedure laid down under the NDPS Act, more particularly, Sections 50 and 67. The petitioner herein is aged about 65 years and is only a driver of the vehicle and he is not the owner of the vehicle. He is nothing to do with the seized material. He was arrested on 02.03.2019 and since then he is in jail. He is suffering from various old age ailments.
7. The respondent authorities have already completed investigation and filed charge sheet and the same was returned by the trial Court on the ground that the material objects, including seized KL,J Crl.P. No.4199 of 2020 4 material, were not produced. With the said contentions, the learned counsel for the petitioner sought to consider the bail application of the petitioner by imposing certain conditions.
8. On the other hand, the learned Special Public Prosecutor, would submit that the petitioner herein has committed serious offence under the NDPS Act. 744.2 kgs. of ganja was seized from him. The manner of commission of offence by the petitioner would show that the petitioner has committed the said offence by procuring and transporting huge quantity of 744.2 kgs. of ganja for earning easy money. The respondent authorities have followed the procedure laid down under the NDPS Act including Sections 50 and 67. The petitioner has voluntarily given his statement under Section 67 of NDPS Act. He has admitted his involvement in procurement and transportation of ganja.
9. The learned Special Public Prosecutor would further submit that in view of statutory embargo under Section 37 of the NDPS Act for grant of bail to accused, he sought to dismiss the present petition. He would further submit that the Hon'ble Supreme Court has held that while hearing bail petitions under NDPS Act, strict compliance under Section 37 of the NDPS Act shall be adhered to. He has relied upon the principle laid down by the Apex Court in Sheru v. Narcotics Control Bureau1; State of Kerala v. Rajesh2. By placing reliance 1 . Order dated 11.09.2020 in Criminal Appeal Nos.585-586 of 2020 (Arising out of SLP (Criminal) Nos.2249-2250 of 2020) 2 . AIR 2020 SC 721 KL,J Crl.P. No.4199 of 2020 5 on the said principle laid down by the Apex Court in the said decisions, the learned Special Public Prosecutor would also submit that if the petitioner is released on bail, there exists every chance of him to tampering with evidence which would be prejudicial to the interests of public justice. If released on bail, he may flee to another State and may not turn up for prosecution and in the process escape from the clutches of law. He may even indulge in similar drug crime with his available contacts. There are no reasonable grounds in this case to come to a conclusion that the petitioner is not guilty of offence under the NDPS Act to get enlargement on bail, in as much as the seized contraband is of commercial quantity.
10. With the said contention, the learned Special Public Prosecutor sought to dismiss the present application.
11. The above stated facts would reveal that 744.2 kgs. of ganja was seized from the petitioner herein. The manner of involvement of petitioner in procurement and transportation of ganja was explained above. He has voluntarily given his statement under Section 67 of the NDPS Act. Though the learned counsel for the petitioner would urge that the respondent officials have not followed the procedure under NDPS Act, he failed to establish the provision or procedure that was violated by them. However, the same would be decided only during trial.
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12. As rightly contended by the learned counsel for the petitioner and affirmed by the learned Special Public Prosecutor that the respondent authorities have already completed investigation and filed charge sheet. The same was returned with certain objections. The respondent authorities have complied with the objections raised by the office of the trial Court and re-submitted the same. The learned Special Public Prosecutor would submit that they are expecting the S.C. number shortly.
13. As per Section 37 (1) (b) of the NDPS Act, no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A 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 (i) 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. As per the said provision, there are two important aspects in Section 37 (1)
(b) of the NDPS Act, viz., (i) an opportunity should be given to the Public Prosecutor to oppose the bail; and (ii) if the Public Prosecutor opposes the application, the Court should satisfy that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
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14. The Apex Court in Rajesh2, had an occasion to deal with the scope and ambit of Section 37 of the NDPS Act, and with specific reference to offence under the NDPS Act and also grant of bail. It held that the jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. The Apex Court in the said judgment has also relied upon the broad parameters laid down by it in Union of India v. Ram Samujh3, which are as follows:
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a 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 the NDPS Act, has succinctly observed about the adverse effect of 3 . 1999(9) SCC 429 KL,J Crl.P. No.4199 of 2020 8 such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. 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 proportions 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, Parliament in its 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, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent/accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
The Apex court further held that the Scheme of Section 37 of the NDPS Act reveals that exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.P.C., KL,J Crl.P. No.4199 of 2020 9 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.
15. The Apex Court further held that 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.
16. In Ratan Kumar Vishwas v. State of U.P.4, the Apex Court held that to deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not 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 4 . (2009) 1 SCC 482 KL,J Crl.P. No.4199 of 2020 10 offence and that he is not likely to commit any offence while on bail are satisfied.
17. The Apex Court in Union of India v. Rattan Mallik5, held that Section 37 of the NDPS Act consists of two twin conditions apart from giving liberty to the Public Prosecutor to oppose the application for such release, (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. The said conditions are cumulative and not alternative.
18. Section 37 of the NDPS Act must be construed in a pragmatic manner, and it cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purposes as held by the Apex court in State of Uttaranchal v. Rajesh Kumar Gupta6. It was also held that Section 37 of the 1985 Act would prima facie has no application in view of the exception contained in Section 8 thereof read with the Rules.
19. In Ravi Sharma v. N.C.B.7 it was held that a bare reading of Section 37 makes it abundantly clear that it only relates to procedure and does not create any substantive offence. Law presumes that every accused shall be innocent unless to be guilty. Neither Act nor S.37 indicates any attempt to depart from the well recognized 5 . (2009) 2 SCC 624 6 . (2007) 1 SCC 355 7 . ILR (1991) 2 Del. 362 KL,J Crl.P. No.4199 of 2020 11 principles that an accused is presumed to be an innocent till held to be guilty. It was, observed in the statements and reasons for amendment of the Act that it provided deterrent punishment for drug trafficking offences and that even though the major offences were non-bailable by virtue of the level of punishment, on technical grounds drug offenders were released on bail. It was with a view to check the release of the offenders easily and to provide for certain difficulties faced in the enforcement of the Act, the need to amend the law including S.37 was felt. There can possibly be no dispute that it is only a procedure which has been provided governing the grant of bail. It is not a substantive right nor bail is refused by way of punishment. Time and again, the Apex Court has emphasized need for speedy trial, particularly when release of under trial on bail is restricted under provisions of Statute, like Section 37 of the NDPS Act.
20. While considering question of grant of bail to accused facing trial under NDPS Act in S.C. Legal Aid Committee v. Union of India8, it was observed by the Apex Court that though some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, fairness assured by Article 21 of the Constitution of India would be undermined to an unacceptable extend. It was further observed therein that after accused person has suffered imprisonment, which is half of maximum punishment provided for offence, any further 8 . (1994) 6 SCC 731 KL,J Crl.P. No.4199 of 2020 12 deprivation of personal liberty would be violation of fundamental right visualized by Article 21 by the Apex Court in Thana Singh v. Central Bureau of Narcotics9.
21. In view of the said authoritative pronouncements on law by the Apex Court, coming to the case on hand, as discussed supra, the petitioner herein has involved in procurement and transportation of huge quantity of 744.2 kgs. of ganja. The manner of procurement and transportation of the said ganja as explained by the petitioner appears to be that the petitioner has intentionally committed the offence for easy earning of money. He has given his statement voluntarily under Section 67 of NDPS Act. He has explained that he has committed the offence for easy earning of money.
22. As stated above, the ganja was kept in casuarina poles. They have arranged the poles of different sizes in such a way that from outside it looks as if the whole truck is loaded with long size casuarina poles, but actually they have loaded with different colours viz., Blue, Green and Orange colour plastic bags filled with ganja kept in front of the vehicle, then placed small size of casuarinas poles up to the height of plastic bags filled with ganja and on the top they have kept long size of poles. Thus, the manner in which the petitioner has procured and transported the ganja would show the seriousness of offence and mens rea in committing the offence by the petitioner. 9 . (2013) 2 SCC 603 KL,J Crl.P. No.4199 of 2020 13
23. As discussed above, as per Section 37 of the NDPS Act, this Court has to give an opportunity to the Public Prosecutor to oppose bail application. Accordingly, opportunity was given to the learned Special Public Prosecutor and he has filed counter along with documents and opposed the bail application. Then, there are twin requirements under the said provision i.e., i) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence; and ii) the accused is not likely to commit any offence while on bail. The Apex Court has also dealt with the expression 'reasonable grounds', which means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.
24. Whereas, in the present case, the manner in which the petitioner has committed the offence, as narrated above, and on consideration of the same, the above twin requirements are satisfied. This Court has also satisfied with the said twin requirements. The petitioner herein has failed to establish that there are no grounds for believing that the accused is guilty of such offence and also that the accused is not likely to commit the offence while on bail. The petitioner except saying that he is only a driver, 65 years old and suffering from various old age ailments, failed to place any material to satisfy with the same. In view of the seriousness of the offence committed by the petitioner and also considering the fact that this Court is satisfied with the twin requirements of Section 37 (1) (b) of KL,J Crl.P. No.4199 of 2020 14 the NDPS Act, according to this Court, there are no grounds to grant bail to the petitioner and, therefore, the same is liable to be dismissed.
25. Accordingly, the present Criminal Petition is dismissed. However, on perusal of the remand application under Section 167 (2) of Cr.P.C read with Sections 51 and 53 of the NDPS Act filed by the respondent authorities, age of the petitioner is mentioned as 65 years. The learned Special Public Prosecutor would submit that the respondent authorities have already completed investigation and filed charge sheet. Though the same was returned with certain objections, the respondent authorities have already complied with the said objections taken by the office of the trial Court and re-submitted, but S.C. number is awaited. Considering the same, the trial Court i.e., Metropolitan Sessions Judge, Cyberabad, Ranga Reddy District at L.B. Nagar, is directed to conclude trial as expeditiously as possible, by following Standard Operating Procedure (SOP) issued by this Court from time to time.
As a sequel, miscellaneous petition, if any, pending in the Criminal Petition, shall stand closed.
_________________ K. LAKSHMAN, J 09th November, 2020 Mgr