Uttarakhand High Court
Sidharth Maithani vs State Of Uttarakhand on 24 September, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
1st Bail Application No. 636 of 2020
Sidharth Maithani .......Applicant
Vs.
State of Uttarakhand .....Respondent
With
st
1 Bail Application No. 1516 of 2020
Kewal Chauhan .......Applicant
Vs.
State of Uttarakhand .....Respondent
With
st
1 Bail Application No. 2206 of 2020
Anil Thakur .......Applicant
Vs.
State of Uttarakhand .....Respondent
(Reserved on:-19.07.2021)
(Delivered on:-24.09.2021)
Present:- Mr. Rajendra Singh Azad, Advocate for the applicant in BA 1st No.2206 of
2020.
Mr. Karan Anand, Advocate, for the applicant in BA 1st No.636 of 2020 and
BA 1st No.1516 of 2020.
Mr. V.K. Jemini, Deputy Advocate General, for the State of Uttarakhand.
Hon'ble Sharad Kumar Sharma, J (Oral)
These are the three connected bail applications, which are arising out of the common incident and commission of offence, which has chanced, on 18.03.2020, wherein, all the applicants, to the three bail applications were alleged to have been found involved in the commission of the offences, under Section 8/20 of the NDPS Act, which was registered at Police 2 Station, Clement Town, District Dehradun, on 18.03.2020. As, Case Crime No.27 of 2020, wherein, Siddharth Maithani, has been shown to be an accused, in Case Crime No.26 of 2020, wherein Mr. Anil Thakur, has been shown to be an accused and in Case Crime No.25 of 2020, wherein Mr. Kewal Chauhan, was shown to be an accused, who were alleged to be jointly involved in the commission of the aforesaid offences.
2. As per the set of allegations, which were leveled in the FIR, in which the applicants, to the three bail applications, were named as the accused persons, as against the respective criminal offences, which were registered against them. It was contended that the team of the police officials, after making the necessary entries in the GD, with their official vehicle, bearing Registration No.UK07 GD 0900, along with the drug kit, on receiving the information, about the probable movement of the accused persons, who are allegedly suspected to be involved in the commission of the offences, had reached at ISBT Bus Station, at 07:45 o' clock. It was alleged in the FIR, that on the basis of the information, which was received by the Police party, from "Mukhbir Khas", they have been informed, that three boys were expected to cross the "Ashrarodi Barrier", in a white colour swift car, bearing Registration No.UK07TA 6597, which was informed to be moving from "Saharanpur" towards "Dehradun".
3. Accordingly, the police team, which reached the ISBT Bus Station, much before the anticipated time, and were engaged in their routine searching of various vehicles, on seeing the white swift colour car, as referred above, which was coming from "Saharanpur" side, the Police team, had stopped the car at "Asharodi Barrier", 3 and on the signal being given to the driver of the car, by the Police team, for stopping the car, which was alleged to be involved in the offence, complained of in the FIR, of its likelihood to be involved in commission of the offence, that the applicants to the bail application, tried to reverse the car and attempted to run away from the spot, but on account of the there being a heavy traffic, behind them, they were unable to reverse their car and escape, from the clutches of the police team.
4. On the said swift car, being apprehended the police team, on 18.03.2020, at "Asharodi Barrier", it is contended in the FIR by the complainant, that the said car was found being driven by one of the co-accused person namely Shri Kewal Chauhan, who was of about 45 years of age, and another co-accused person, who were sitting, on the side seat of the driver, namely, Shri Anil Thakur, was also of about 45 years of age, and in the rear seat of the car, the third co-accused person, namely, Shri Siddhartha Maithani, was sitting, who was of 24 years of age.
5. There, is a specific averments made in the FIR, that the aforesaid co-accused persons on being apprehended by the Police party, the Sub Inspector who headed the team, namely, Shri Vikas Rawat, and other Police personnel, who were present at the spot and had apprehended the car, along with the accused persons, when they found, that each of the inmates who were traveling in the car, were carrying their bagages, which the police party, alleged, that when they apprehended them, the bags contained in it certain contrabands as informed by the "Mukhbirkhas", the police team had informed them i.e. the accused persons, about their rights of being searched by the Gazetted Officer, as 4 contemplated under Section 50 of the NDPS Act, and on the said information, being parted to the accused persons, they expressed their willingness; that they would like to be searched by the Gazetted Officer, and accordingly, they expressed their agreement for search by a Gazetted Officer, and thereafter, the Head Constable Shri Charanjeet, had prepared the notices, as it was required under Section 50 of the NDPS Act, which was read over and explained to the accused persons, and thereafter, the SHO of the circle, who was a notified Gazetted Officer under the notification, was informed about the incident and was requested to reach the place of occurrence, in order to enable the police party to conduct the search, on the accused persons, who were so apprehended by the police party.
6. It is on the receipt of the said information which was given by the Police party, the SHO reached the spot, and he too has recorded in the FIR, to have informed the accused persons, about their statutory rights, as envisaged under Section 50 of the NDPS Act, and it is only thereafter, that they have expressed their willingness to conduct a search on them, thus they were searched by the Gazetted Officer. After the search being conducted on the applicant to the three bail applications, as already referred above, it was found that:-
(A) That Shri Siddharth Maithani, the bail applicant to the first bail application, being BA 1st No.636 of 2020, who was found sitting on the rear seat of the car, it was found that he was carrying a plastic bag of silver colour, on his lap, and on being searched by the Police officials, in the presence of the Gazetted Officer, it was found, that following articles were found in his possession:-5
(i) "Buprenorphine injection", about 13 strips with 5 injections in each strip of 2 ML was found from the applicant i.e. totaling to 65 injections.
(ii) "Diazepam Injections", which were found from the possession of the applicant to the Bail Application No.636 of 2020, it was found that he was carrying 10 strips of "Diazepam Injections", and each of the strips contained 5 injections.
(iii) phenerganInjections", was also found from his possession, which was about 25 strips of each strips of 5 injections each i.e. totaling to 125 injections.
Thus, it was alleged in the FIR, that from the possession of accused Shri Siddhartha Maithani, total 48 strips, with each strips of five injections i.e. totaling to 240 injections of 2 ML each, was found recovered, from the possession of the applicant. Besides this, he was also found to be having a Mobile and a cash of Rupees Two Thousand Five Hundred, and a debit card was also recovered from his possession.
(B). The applicant/accused Shri Kewal Chauhan of the Bail Application No.1516 of 2020, the following articles were found in his possession:-
The applicant was the Driver of the car, it has been alleged in the FIR, that under his feet, there was a "plastic katta", which was found, in which there were 37 strips of 5 injections each 6 i.e. totaling to 185 injections, out of which, it was found that in the "Katta", which he was carrying.
(i) There were 12 strips of 5 injections, in each strip of "Buprenorphine Injection" IP Lugisic of 2 ML each. Hence, overall 60 injections of "Buprenorphine Injection", were found from his possession.
(ii) "Diazepam Injections", which were found from his possession, there were 5 strips, each strips of 5 injections i.e. totaling to 25 injections were found from his possession.
(iii) "Promethazine HCL Injections" "IP Phenergan", which were found from his
possession was 20 strips, with each strips of 5 injections i.e. totaling to 100 injections was found from his possession i.e. an overall total 37 strips of injections were found from his possession, apart from the Mobile phone and Rupees 10 notes, in his purse.
(C). The applicant/accused, Shri Anil Thakur of the Bail Application No. 2206 of 2020, who was sitting by the side of the driver seat, and was found carrying a bag on his lap, it was contended that it was a white colour plastic bag, which contained in it:-
(i) "Buprenorphine Injection" of 50 strips of 5 injections in each strips i.e. totaling to 250 injections.
(ii) "Diazepam Injections" of 60 strips of 5 strips each injections i.e. totaling to 300 injections.
7(iii) Phenergan Injections", of 30 strips of 5 injections in each strip i.e. totaling to 150 injections.
7. It means, that an overall contraband of total, 140 strips with 700 injections of 2 ML, volume in each injection, was found to be recovered from the possession of the 3rd accused person, namely, Anil Thakur, who is the applicant to the Bail Application No.2206 of 2020. Apart from it, from his possession a Vivo Mobile phone, and cash of Rupees Two Thousand Five Hundred, and Aadhar Card, was also found from his possession.
8. As per the prosecution story, the total recovery from the three accused persons, it was contended that, if the total contraband, which was recovered are taken together, it was found that they were carrying about 1125 injections, and particularly, the "Buprenorphine", since it has been included at S.No.169, of the Schedule, appended to the NDPS Act, and "Diazepam" injections, which was included at S.No.194, of the Schedule of the NDPS Act, they were the contrabands, which were found from their possession, which was prohibited or restricted to be possessed, transported or carried by any person, except without a prior valid permission or license as per law.
9. All these three applicants to the bail applications have filed their respective bail applications before the Special Judge, NDPS, Dehradun, and the same has been rejected by the respective orders, which were rendered by the Special Judge, NDPS, Dehradun on 21.03.2020, so far it relates to the applicant Shri Siddhartha Maithani and Shri Kewal Chauhan and the Bail Application of Shri Anil Thakur, it was rejected by 8 the Special Judge, NDPS, Dehradun, vide its order dated 22.06.2020.
10. In the aforesaid three bail applications, the principal argument, which has been extended by the learned Counsel for the applicants; before the trial court is that no confidence could be reposed, to the contents of the set of allegations and the prosecution story, which had been leveled in the FIR, which was respectively registered against the accused persons, as detailed above, for the reason being, that it is averred by one of the co-accused persons, namely, Shri Siddhartha Maithani, that since, he earlier had certain altercations, with the local police personnel, he had been falsely implicated, in the commission of the offences. He further submitted that the recovered injections, which were made from the co-accused persons, alleging, that since each injections had 2 ML content, in fact the recovered injection also contained neutral substances also. Hence, since the actual content of the contrabanded salt was much lesser, than the small quantity, and hence, the applicants are not liable to be prosecuted for the commission of the offences under Sections 8/22 of the NDPS Act.
11. It was further submitted by the counsel for the applicants, in the ground of the bail applications, that the allegations leveled in the FIR by the Police team, and the complainant who has registered the FIR, that since it was a chanced recovery, the provisions of Section 50 of the NDPS Act, will not be applicable, is per se erroneous, because according to his arguments, as per the evidence on record, according to the applicants counsel, there was non-compliance of the provisions of Sections 42, 50, 55 and 57 of the NDPS Act, and since the recovery which 9 was made from their possession, being of a small quantity, then what it has been, as specified in the Schedule appended to the NDPS Act, they would be entitled for the benefit of the implications emanating from the provisions contained under Section 22 (a) of the NDPS Act. Section 22 (a) is extracted, hereunder:-
"22. Punishment for contravention in relation to psychotropic substances.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any psychotropic substance shall be punishable,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 5 [one year], or with fine which may extend to ten thousand rupees, or with both;"
12. This argument, is that for the reason being, that the offences under the Special Act, cannot be dealt with, with the same parameters, with regards to the offences which are included in the 2nd Schedule of the CrPC, which relates to the offences under IPC, wherein, it has been provided, that the offences which carries a sentence of less than three years would be bailable.
13. The applicants counsel to the bail applications had further submitted, that since they are languishing in jail ever since 19.03.2020, and there is no direct set of proof or evidence available, on record to show that they were engaged in the commission of the offences, under Section 8/22 of the NDPS Act, and since they have been maliciously roped with the commission of the offences by the Police, they deserves to be enlarged on bail, apart from the fact that they are not carrying any criminal history. Hence, the implications of Section 37 of the NDPS Act, would not be attracted to be made applicable, 10 as far as the consideration of their bail applications are concerned.
14. On the contrary, the prosecution case is and it has been also taken and pleaded in the counter affidavit, that on the applicants, being apprehended by the Police team, on 18.03.2020, in fact there was a specific recovery, which was made, after giving them the information, which was being given to them, with regards to their rights which were protected under Section 50 of the NDPS Act, of being searched by the Gazetted Officer, and after making the respective recovery as detailed above, they were taken in custody and the contrabanded articles thus recovered were sealed in the separate packets and an inventory of the same was prepared, strictly as provided under Section 52A of the NDPS Act, and the contraband thus recovered from them was kept in the "Malkhana".
15. The prosecution story, as well as the pleadings which were raised in the counter affidavit, it was submitted that, during the course of interrogation of the accused persons, it has revealed that the present applicants were bringing the contraband from "Saharanpur" to "Dehradun", and it has also revealed that they collected the contraband from one Mr. Rehmani of District Saharanpur, and according to the statement which has been recorded by one of the co-accused, namely, Shri Anil Thakur, he had categorically stated, that he is in the business of dealing with drugs for the last three to four years, and in fact other co-accused, namely, Shri Siddhartha Maithani, was a person, who used to collect the alleged contraband articles i.e. the drugs, in which, he contends that he was engaged in the 11 business and use to sell it on a commission, and used to earn from the said business.
16. In the statement recorded by other co-accused person, and as it has been pleaded in the counter affidavit, the other co-accused persons, namely, Shri Siddhartha Maithani and Shri Kewal Chauhan, they have stated that they are engaged in the purchase and sale of the injections, which was recovered from their possession, and they use to sell the drugs in different residential localities, at a much higher price, and have further stated, that in their dealing with the narcotics and the contraband articles, which was found in their possession, in fact there were other co-accused persons also involved, namely, Kuldeep and Rishabh, whose name was also disclosed by them, when they had recorded their statements under Section 161 of the CrPC, before the police officials. Ultimately, after the preparation of their respective arrest memo of the applicants, the car which was used and said to be involved for the commission of the offences, was taken in possession by the Police and a possession memo under Section 60 of the NDPS Act, was also got prepared, in relation thereto.
17. The argument of the learned counsel for the applicants, is that the applicants deserves to be released on bail for the reason being that the actual salt of the recovered contraband, which was found from their possession since was lesser than the small quantity, as it has been specified in the Schedule, appended to the NDPS Act, they deserves to be enlarge on bail. Couple with the fact that since it is an admitted case, while answering the pleadings of paragraph No.13, of their respective bail applications, that the applicants are not 12 carrying any criminal history, they ought to be released on bail, as the effect of Section 37 of the NDPS Act, and its proviso will not be applicable in the present set of circumstances of the case.
18. In order to deal with the aforesaid set of arguments of the learned counsel for the applicants as extended while supporting their bail applications, on the ground that since the recovery was of the quantity lesser than the small quantity, as it has been specified in the schedule, the applicants deserves to be enlarged on bail; has been vehemently opposed by the learned Government Advocate, on the ground that their allegation, that the provisions of Section 50 of the NDPS Act, was not complied with is not sustainable, because in view of the specific statements, which had been recorded in the FIR, the Gazetted Officer, who has recovered the articles from the possession of the applicants, had been shown to have informed them about their rights and then the search was carried and conducted on them. As far as the non availability of the independent witness is concerned, the prosecution case has been quite specific, that none of the public persons, in order to avoid their subsequent judicial procedural harassment, in pursuing the criminal proceedings had not agreed to be the witness of the recovery, and the witness of the incident, which has occurred at "Asharodi Barrier", where accused/applicants were apprehended by the police personnel.
19. It was further submitted by the learned Government Advocate that the argument of the learned counsel for the applicants is that, it would be the contents of the actual salt combination, which is to be taken into consideration for the purposes of bringing the 13 act and recovery, thereof within the commission of the offences under Sections 8/22 of the NDPS Act, has been controverted by the learned Government Advocate on the ground that in view of the Notification No.SO2941 (E), dated 18.11.2009, the table, which is appended to the NDPS Act, has added Clause (4), wherein, it has been specified that the contraband of the nature, which was recovered from the possession of the applicants, which were the contrabanded medicines, which stood included at S.No.169 and 194, of the Schedule to the NDPS Act. It would be the entire mixture, which has to be taken into consideration, and it is not exclusively only the salt contents of the entire mixture, which is to be taken, as to be the foundation for the alleged involvement in the commission of the offences. They further submitted that the aforesaid principles regarding the impact of Notification dated 18.11.2009, that the entire mixture has to be taken into consideration, has also been considered by the learned Special Judge, NDPS, Act, Dehradun, from the principles, and ratio, as it has been laid down by the Hon'ble Apex Court in the judgment rendered in Criminal Appeal Nos.154-157 of 2020, on 24.01.2020, which has laid down the specific parameters and norms, as to the circumstances as to how, the Court has to considered the implications of Section 37 of the NDPS Act, to be read with while considering the Bail Applications under Section 439 of the CrPC.
20. It has been further argued by the learned Government Advocate that the contention of the learned counsel for the applicants, may not be sustainable for the reason being that the amendment, which has been made by adding sub-clause (4) to the Schedule to the NDPS Act, by the Notification of 18.11.2009, since it has been 14 upheld by the Hon'ble Apex Court in the judgment rendered in Criminal Appeal No.722 of 2017, "Hira Singh & others Vs. Union of India". Hence as per the covenants of the said notification, the recovery which has been made from the applicants, would be determined, as on the basis of the total recovered contraband which was recovered from them, and not on the basis of the composition of salt, as it has been argued by the learned counsel for the applicants.
21. Learned Government Advocate further submitted that after the investigation being completed by the IO, a Charge-Sheet No.40 of 2020, dated 23.07.2020, has already been submitted, and not even that, even as per the FSL report, which has been submitted by the Laboratory, the contraband which was recovered from their possession, it was concluded by the FSL report that since it specifically established that it was a contraband, which was specified in the Schedule 2 of the NDPS Act, the applicants do not deserve to be enlarged on bail, because ultimately on the basis of report of chemical analysis, and the salt combination, which was found, in the recovered contraband included in it the prohibited articles and thus the bail applications deserves to be rejected.
22. In view of what has been argued above, if the recovery of the contraband is respectively considered, in relation to the applicant to the Bail Application No.636 of 2020 i.e. Shri Siddhartha Maithani, from whose possession 240 injections was recovered, the total material thus recovered as per the Notification, would be 480 ML, and similarly in relation to the Bail Application No.1516 of 2020 i.e. Shri Kewal Chauhan, the total recovery, which was shown to have been made from his 15 possession is of 185 injections, it was 370 ML of the contraband, which was recovered from his possession, and similarly the 3rd applicant to the Bail Application No. 2206 of 2020 i.e. Shri Anil Thaukur, from whose possession, total 700 injections was recovered, and the total recovery was shown to be of 1400 ML.
23. After hearing the learned counsel for the applicants at length, learned counsel for the applicants has submitted that the findings, which has been recorded by the learned Special Judge, NDPS Act, Dehradun, while rejecting the bail application of the applicants, that the contraband recovered was of a small quantity, and Section 37 of the NDPS Act, would not apply, but the findings recorded were, that the recovery was of the commercial quantity. Thus since the recovery of the contraband, being above commercial quantity, the implications of Section 37, of the Act would come into play. Hence the bail applications for the aforesaid reasoning are rejected.
(Sharad Kumar Sharma, J.) 24.09.2021 NR/