Uttarakhand High Court
Dehradun vs Ankit Alias Kaka And Others") on 15 March, 2023
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
15th March, 2023
FIRST BAIL APPLICATION No.2716 of 2021
Between:
Ankit alias Kaka ...Applicant
and
Narcotics Control Bureau and Another .....Respondent
With
FIRST BAIL APPLICATION No.2718 of 2021
Between:
Vipin Kumar ...Applicant
and
Narcotics Control Bureau and Another .....Respondent
Counsel for the Applicants : Mr. Ankur Sharma,
Advocate.
Counsel for the Respondent : Mr. Shobhit Saharia,
Advocate.
Hon'ble Alok Kumar Verma, J.
These two Bail Applications have been filed for grant of regular bail in connection with NCB Crime No.05/NCB/DDN/2020 (Special Sessions Trial No.136 of 2021, "Union of India through Narcotics Control Bureau, Dehradun vs. Ankit alias Kaka and others"), registered with NCB Sub-Zone, Dehradun for the offence under Sections 2 8/22/27A/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act 1985").
2. These two Bail Applications have arisen from one crime number i.e. NCB Crime No.05, therefore, these two Bail Applications are being considered and decided by this common order. Record of First Bail Application No.2716 of 2021 will be leading file.
3. Heard Mr. Ankur Sharma, learned counsel for the applicants and Mr. Shobhit Saharia, learned counsel for Narcotics Control Bureau/respondent no.1.
4. Mr. Shobhit Saharia, learned counsel for Narcotics Control Bureau (in short "NCB"), submitted that according to the present matter, on 24.12.2020 at around 12:20 hrs, a secret information was received by Ashu Sharma, Junior Intelligence Officer of NCB that two persons, namely, Ankit alias Kaka (present applicant) alongwith motorcycle bearing No.UK16C9943 and Vipin Kumar (present applicant) alongwith motorcycle bearing No.UK07DB5409 were going to sell drug injections, Diazepam, Buprenorphine and Phenargan to a person, near Tibetten Settlement Office, Lakhanwala, Herbartpur, Dehrdaun. On the basis of the said secret information, 150 ampoules of injections (Buprenorphine - 50 Nos, Diazepam- 50 Nos. and Phenargan- 50 Nos.) were recovered from the possession of the present applicant Ankit alias Kaka and 294 ampoules of injections (Buprenorphine - 98 Nos., Diazepam - 98 Nos. and Phenargan - 98 Nos.) were recovered from the possession of Vipin Kumar, present applicant, on 24.12.2020 at near Dhogu Yugualling, Tibetan Settlement Office, Lakhanwala, Herbartpur, Dehrdaun. Consequently, notices under Section 67 of the Act, 1985, were issued to Ankit alias Kaka and Vipin Kumar. In his 3 voluntary statements, recorded on 24.12.2020 and 25.12.2020, before Mr. Ashu Sharma, Ankit alias Kaka had confessed his guilt that the said injections were recovered from his possession. Thereafter, he was arrested on 25.12.2020 at 15:30 hrs. Statements of present applicant Vipin Kumar was recorded under Section 67 of the Act, 1985 on 24.12.2020 and 25.12.2020. In his statements, he stated that the said recovered injections were purchased by him from a person, namely, Gaurav alias Rajat Kumar (co- accused). Applicant Vipin Kumar was arrested on 25.12.2020 at 15:40 hrs. After completion of investigation, a complaint was filed on 21.06.2021 before the Special Judge (NDPS Act), Dehradun.
5. Mr. Ankur Sharma, learned counsel appearing for the applicants, submitted that the applicants are innocent persons. Seized contraband were not recovered from the possession of the applicants. The alleged recovery was planted. He further submitted that according to the complaint, the respondent no.1 mixed up all the injections, which was allegedly recovered from the applicants and the same was sealed in three boxes, thereafter, the same was produced before the concerned Magistrate on 02.01.2021 and one ampoule of each injections were drawn for Forensic Science Laboratory. Therefore, it is not clear that which injections were recovered from the applicant Ankit alias Kaka or which injections were recovered from the applicant Vipin Kumar.
6. Mr. Ankur Sharma, learned counsel for the applicants, further submitted that the respondents had violated the provisions of Standing Order No.1/89 dated 13.06.1989, issued under sub-section (1) of Section 52A of the Act 1985 by the Department of Revenue, Ministry of 4 Finance, Government of India. Learned counsel for the applicants contended that a confessional statement, recorded under Section 67 of the Act 1985, is not admissible.
7. Mr. Shobhit Saharia, Advocate, submitted that in compliance of the judgment of the Hon'ble Supreme Court passed in Union of India Vs. Mohan Lal and others, (2016) 3 SCC 379, samples were taken in presence of the concerned Magistrate and concerned Magistrate had issued the certificate to this effect. However, he fairly conceded that Clause 2.5 of the Standing Order was not strictly followed.
8. Clause 2.5 of the said Standing Order is as under:-
"2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn."
9. The accusation in the present case is with regard to the commercial quantity. At this stage, it would be appropriate to refer to the provision of Section 37 of the Act, 1985. Section 37 of the Act, 1985 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) 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 5 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."
10. "Reasonable ground" is not defined in the Act, 1985. In State of Kerala vs. Rajesh and Others, AIR 2020 SC 721, the Hon'ble Supreme Court has held that the expression "reasonable ground" means something more than prima facie grounds. In Narcotics Control Bureau vs. Mohit Aggarwal, 2022 SCC OnLine SC 891, the Hon'ble Supreme Court has held that "reasonable grounds" mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence.
11. On 10.01.2022, the Hon'ble Supreme Court in the Petition for Special Leave to Appeal (Crl.) No.242 of 2022, "State By (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and Another", observed that it has been held in clear terms in Tofan Singh vs. State of Tamil Nadu, (2021)4 SCC 1 that a confessional statement recorded under Section 67 of the Act, 1985 will remain inadmissible in the trial of an offence under the Act, 1985.
12. Clause 2.5 of the standing order lying down process for drawing of samples. In the present matter, the samples of 6 the alleged recovered contraband were not drawn in accordance with the Standing Order. The courts are not expected to accept every word of the complainant as gospel truth and invoke the bar of Section 37 of the Act, 1985 against the applicants.
13. Personal liberty is a very precise fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
14. As per the submissions of learned counsel for the parties, the drawing of the sample does not appear to be in conformity with the Standing Order, therefore, at this stage, these circumstances give rise to a reasonable ground to presume that the applicants may not be held guilty of the alleged offence.
15. The object of keeping the accused persons in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused. Applicants are in custody since 25.12.2020. Applicant Ankit alias Kaka is a permanent resident of District Dehradun and the applicant Vipin Kumar is a permanent resident of District Saharanpur. Therefore, there is no likelihood of applicants absconding as well. There is nothing on record to indicate that the applicants had earlier been involved in any unacceptable activities.
16. Having considered the submissions of learned counsel for the parties and in the facts and circumstances of the case, there is no reason to keep the applicants behind the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicants deserve bail at this stage.
717. The Bail Applications are allowed.
18. Let the applicants-Anikt alias Kaka and Vipin Kumar be released on bail on their executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned with the following conditions:-
i) They shall attend the Trial Court regularly, and, they will not seek any unnecessary adjournment;
ii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case;
iii) They shall not leave India without any prior permission of the Trial Court.
19. It is clarified that if the applicants misuse or violate any of the conditions, imposed upon them, the complainant will be free to move the court for cancellation of bail.
20. Registry is directed to send a soft copy of this bail order immediately by e-mail to the prisoners through the concerned Jail Superintendent for necessary action.
21. A copy of this order be placed on the record of First Bail Application No.2718 of 2021.
___________________ ALOK KUMAR VERMA, J.
Dated: 15th March, 2023 Arti