Chattisgarh High Court
Ashish Sharma @ Raja vs State Of Chhattisgarh on 6 July, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 2921 of 2023
1. Ashish Sharma @ Raja S/o Late Lalit Sharma Aged About 29 Years Present
Address - Shivnandanpur (Bancharpara), Bishrampur, District - Surajpur,
Chhattisgarh, Permanent R/o Village- Davansara (Majhapara), Police Station
- Bhaiyathan, District : Surajpur, Chhattisgarh
2. Dinesh Rao @ Babli S/o Late K. Satyanarayan Rao Aged About 29 Years R/
o - Shivnandanpur, Police Station - Vishrampur, District : Surajpur,
Chhattisgarh
3. Smt. Sonia Rao W/o Dinesh Rao Aged About 23 Years R/o - Shivnandanpur,
Police Station - Vishrampur, District : Surajpur, Chhattisgarh
---- Applicants
Versus
• State Of Chhattisgarh Through , Station House Officer, Police Station -
Vishrampur, District : Surajpur, Chhattisgarh
---- Respondent
& MCRC No. 3498 of 2023 • Smt. Sanjivi Sharma W/o Late Lalit Sharma Aged About 55 Years R/o Dawansara, Bhaiyathan, Surajpur (C.G.)
---- Applicant Versus • State Of Chhattisgarh Through The Station House Officer, Police Station Bishrampur, District Surajpur (C.G.)
---- Respondent For Applicants : Shri Sanjay Pathak and Shri Faisal Akhtar, Advocates For State : Shri Sanjeev Kumar Agrawal, Panel Lawyer Hon'ble Shri Justice Sachin Singh Rajput Order On Board 06/07/2023
1. The applicants have been arrested in connection with Crime No.107/2022 registered at Police Station - Vishrampur, District - Surajpur 2 (C.G.) for alleged commission of offences under Section 21-C of NDPS Act, 1985.
2. The prosecution case is that from the possession of applicant - Ashish Sharma and other co-accused were found in possession of 6 packets of Alprozolam 1 mg, 3000 piece, Avil injection 10 ml 30 pieces, Rexojesic Injection 2 ml 30 pieces and on the basis of their memorandum statement, 15 packets of Alprazolam tablets, Rexojesic injection 2 ml each 30 pieces, t- gesic injection 2 ml each 30 piece. From the house of one Vikas Rao, 9 boxes of Alprazolam tablets 4500 pieces, Avil injection 10 ml 25 pieces, Rexogesic injection 2 ml, 40 pieces were recovered. From the shop of applicant - Dinesh Rao, the police seized 7500 Alprazolam tablets, 30 pieces of Rexogesic injection, 30 pieces of Injesic Injection. It is alleged that wife of applicant - Dinesh Rao i.e Sonia Rao and sister of Dinesh Rao i.e. Sanjivi Sharma were helping them in hiding the above contrabands.
3. Shri Sanjay Pathak, learned counsel for the applicants in MCrC No.2921/2023 would submit that they have been falsely implicated. The prosecution agency has not complied with the mandatory provisions of the NDPS Act. They are in jail since 30/05/2022 and trial is likely to take some time, therefore, the applicants may be granted bail.
Shri Faisal Akhatar, counsel for applicant in MCrC No.3498/2023 submits that no seizure was effected from the conscious possession of the applicant.
4. On the other hand, learned counsel for the State opposes the bail application and submits that the alleged contraband has been recovered from the conscious and physical possession of the applicants - Ashish Sharma and from the shop of applicant - Dinesh Rao. It is submitted that there are allegations of involvement of the applicants Sonia Rao and Sanjivi Sharma in the alleged offence. Therefore, in view of the judgment of Apex Court in the case of Union of India v. Md. Nawaz Khan , 2021 (10) SCC, the application may be rejected.
5. I have heard learned counsel for the parties and considered their rival submissions.
6. The Hon'ble Supreme Court in case of Md. Nawaz Khan (Supra) in para 26 held as under:-
3"26.What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab 17 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan 18 , this Court also observed that the term "possession"
could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.
7. The Hon'ble Supreme Court in the matter of NCB Vs. Mohit Aggrawal reported in 2022 SCC Online SC 891 (Paras 10 to 15), submits that bar under Section 37 of NDPS Act, would be attracted and at this stage, it cannot be said that they are not guilty for the said offence and they have not committed any crime.
Para 10 to 15 held as under:-
" 10. The provisions of Section 37 of the NDPS Act read 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 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 evident from a plain reading of the non-obstante clause inserted in sub-
section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira"5, a decision rendered by a Three Judges Bench of this Court, it has been held thus :-
"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of 4 opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. 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" 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."
[emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" 6 and this Court has observed as below:
"20. 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. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub- Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."
8. Considering the facts and circumstances of the case and looking to the nature of evidence collected by the prosecution and quantity of contraband seized, provisions of Section 37 of NDPS Act and also placing reliance upon the judgments of Hon'ble Supreme Court cited by counsel for the respondent in the matter of Nawaz khan (Supra) and Mohit Aggrawal (Supra), at this stage this Court is unable to hold that the applicants have crossed the hurdles created under section 37 of NDPS Act, therefore, their applications are liable 5 to be and are hereby rejected.
9. It is expected that trial Court shall expedite the trial looking to the detention period, preferably within a period of 8 months.
Sd/-
(Sachin Singh Rajput ) Judge Deepti