Gujarat High Court
Chetan S. Patel vs Arvind Shivlal Soni And Anr. on 8 March, 1995
Equivalent citations: (1995)2GLR1515
JUDGMENT J.N. Bhatt, J.
1. Rule. Mr. S.R. Divetia, waives the service of notice of Rule on behalf of State of Gujarat. Hearing forthwith.
2. In this application for cancellation of bail granted by Special Court, at Ahmedabad, it is highlighted how lightly, liaberally and carelessly bail is granted in a strong, sound and serious cases against an accused involved in Drug Trafficking and Narcotic-Web having extent beyond the national frontiers (Mandrex Tablets in this case).
3. The petitioner is the original complainant who had filed a Criminal Complaint No. 162 of 1994 in the City Sessions Court, at Ahmedabad, on 23 rd May 1994 against seven persons, in all, on the allegations that the accused persons have committed serious offences punishable under Sections 22, 23, 24 and 29 of the Narcotic Durgs and Psychotropic Substances Act, 1985 ("N.D.P.S. Act" for short) and also under Sections I20A and 120B of the Indian Penal Code ("I.P.C." for short), has challenged the impugned order of grant of bail passed by the learned Additional City Sessions (Court No. 12) at Ahmedabad, on 16-1-1995, in Criminal Misc. Application No. 810 of 1994.
4. The learned trial Judge (Special Court) has granted bail to the original accused No. 3-respondent No. 1, herein, on the following grounds on finding that:
(1) that there is no prima facie case against him;
(2) that the Court has granted bail to three other accused persons;
(3) that the accused is not likely to jump the bail, if granted;
(4) that he is not likely to tamper with the evidence of the prosecution.
5. Learned Advocate appearing for the applicant-original complainant has, forcefully, contended that the observations and the grounds on which the bail application is founded upon are unsustainable. According to his contention, there is a strong prima facie case against accused No. 3, as narcotic drugs in the form of Methequalone (Mandrex) tablets had been found from the godown rented and occupied by accused No. 3, and tiierefore, the recovery of narcotic drugs from the possession of accused No. 3 itself also is sufficient to hold that there is prima facie case against him, warranting pre-trial detention. As against that, learned Advocate appearing for respondent No. 1-original accused No. 3 Arvind Shivlal Soni has supported the impugned order granting bail.
6. No doubt, it may be noted that ordinarily discretion exercised by the trial Court for grant or refusal of the bail, should not be disturbed. In the present case, there are special circumstances warranting interference of this Court, as the approach by the learned Special Judge, while granting bail to accused No. 3 in the case of serious charges is not only unreasonable, unjust but is perverse and illegal. The impugned order is based on following main four grounds which is not in dispute:
(i) that the statement of accused under Section 67 of the N.D.P.S. Act is not voluntary;
(ii) that the accused No. 3 could not be said to be a party in the conspiracy as alleged, as the principal offender-manufacturer of the Mandrex, Dr. Bipin Panchal was in jail;
(iii) that the accused Nos. 4, 5, 6 and 7 are granted bail, and therefore, accused No. 3 is also entitled to bail; and
(iv) that no incriminating material was found from the house of the accused No. 3, when searched.
7. In so far as first ground relating to statement under Section 67 of the N.D.P.S. Act of accused No. 3 is concerned, the observations made by the learned Special Judge, are unwarranted at the stage of bail application. It is found by him that the statement of accused No. 3 is not made voluntarily as he had immediately complained to the learned Chief Metropolitan Magistrate about beating and bruises on his person. With due respect, he has neglected factual scenario and it is not appreciated correctly. Had there been any compulsion, coersion or force for giving statement as contended by accused No. 3, and as accepted by the learned Special Judge, then in that case, the statement would have been more incriminating and the authority would not have invited the accused to make statement of facts on different four dates, i.e. 13th, 14th, 15th and 16th January, 1994. Prima facie, it seems that the statement cannot be said to be involuntary, at this stage. Bruises are not only suggestive of beating and that too by Custom Officers. Why was he then required to come four times?
8. The allegation of retraction from confessional statement and also that it is involuntarily, ordinarily will be a matter to be examined and decided at the stage of trial, and not at the stage of Bail Application. Apart from that, even if the statement of accused No. 3 is excluded from the consideration, then also there appears to be the material showing, prima facie, involvement of the accused in conspiratorial illegal adventure for making and manufacturing narcotic Mandrex tables to sell illegally in National and International Market. There appears to be a big strong and planned international drug trafficking racket of crores of rupees. The Court is required to consider, prima facie, involvement of the accused in the commission of alleged offences at the stage of bail.
9. Section 67 of the N.D.P.S. Act empowers authorities to ask for information and collect the materials and also to record the statement of the persons who are likely to have been involved in the commission of the offence under N.D.P.S. Act. Thus, one of the modes of collecting evidence requires to be considered at the stage of bail. Having regard to the facts and circumstances of the case emerging from the record, it cannot be said at this stage that there is no prima facie case against accused No. 3, Arvind Shivalal Soni, from whose possession, narcotic prohibited substance in the form of Mandrex tablets, weighing about 1,545 Kgs. amounting to the value of Rs. 1,66,87,000/- in the International Market is recovered. It cannot, therefore, be said at this stage that he is not prima facie involved in the alleged offences.
10. It appears that the attention of the learned Special Judge was not also drawn to the provision of Section 54 of N.D.P.S. Act. It is very important to consider the provision of Section 54 which reads as under:
Section 54: Presumption from possession of illicit articles:
In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of-
(a) any narcotic drug or psychotropic substance;
(b) any opinum poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, of any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.
It is very clear from the said provision that there is a presumption from the fact of possession of such illicit article. No doubt, it is rebuttable and it is always open for the accused to rebut the said presumption arising out of Section 54.
11. The contention raised on behalf of accused No. 3, that, prima facie, there. is no material to show that the said illegal or illicit articles, namely, Mandrex tablets were found from his possession. This submission may, prima facie, appear to be subtle but not sound and sustainable, when one gets into reality of the facts, even at the prima facie, stage. Following circumstances undoubtedly, go to show that Mandrex tablets were found from the possession of accused No. 3:
(1) that the said illicit articles were recovered from the godown rented by accused No. 3 - respondent No. 1;
(2) accused No. 3 Mr. Soni also has stated in his statement under Section 67 of N.D.P.S. Act that he had hired the said godown for the purpose of storing the Mandrex tablets. No doubt according to his statement, he has also stated further in his statement that the tablets which were found from his godown were not the same tablets which were allowed to be kept. This is not sufficient to prima facie dislodge statutory presumption arising out of Section 54 of N.D.P.S. Act;
(3) receipt of advance rent of Rs. 4,500/- paid for three months at the rate of Rs. 1,500/- per month is also of the said godown which was engaged by accused No. 3 through one Govindbhai belonging to one Nitin Shah. The statements of Nitin Shah and Govindbhai also suggest that accused No. 3 has rented the said godown for the purpose of storing such illegal and contraband articles of drugs;
(4) that he is a big goldsmith who did not require such a godown for storing Tables and that too at a far of place from city.
(5) there is prima facie evidence to show that godown was rented at the instance of his friend Dr. Panchal who is the principal offender in charge of manufacturing such narcotic illegal tablets - Mandrex.
12. In the light of the aforesaid facts, could it be said, prima facie, that the possession of Mandrex tablets found from the godown rented by accused No. 3 in his presence which was shown by him was not in his possession? Prima facie, and spontaneously answer would be in the affirmative. What is required to be considered at the stage of appreciation of merits of the bail application is to consider prima facie involvement of accused persons. Since the learned Special Judge has failed to examine the aforesaid aspects in the light of the provision of Section 54 of N.D.P.S. Act, the observations in the impugned order of learned Special Judge are not sustainable.
13. During the course of submission before this Court, the statements of accused persons and other witnesses are examined. Having regard to the facts and circumstances of the case, the following facts have, prima facie, emerged which could not be controverted:
(i) That accused No. 3 Arvind Section Soni is the friend of Dr. Bipin Panchal who is found to have indulged in manufacturing narcotic Mandrex tablets involving crores of rupees for National and International Market;
(ii) After the raid was effected in the premises of Dr. Bipin Panchal, on 8-11-1993, principal offender Dr. Bipin Panchal escaped from the rear door of his premises, and he immediately contacted his friend-accused No. 3 Arvind Soni and informing him about the raid effected by the Customs Officers. Why? What for? Such questions are not addressed by the learned Special Judge.
(iii) The nephew of Dr. Bipin Panchal is associated with the business of Dr. Bipin Panchal. One Yogesh Chaudhary who has been working with him (accused No. 3) has stated that brief case containing documents of Dr. Panchal was given to him by accused No. 3 Arvind Soni which was handed over to the officers by one Falguniben who is also an employee of accused No. 3 Arvind Soni;
(iv) It is also stated by said Falguniben that big bag containing documents of Dr. Panchal is recovered from her was given to her by accused No. 3 Arvind Soni;
(v) There are money-lending transactions between principal offender Dr. Panchal and accused No. 3 Arvind Soni. It is not disputed that accused No. 3 has been paying interest at the rate of 18% on the amount of more than Rs. 2 Lakhs which is according to him was advanced by Dr. Panchal and his sister;
(vi) When the raid was effected by Director of Revenue Inteligence (D.R.I.) in the premises of Dr. Panchal, Mr. Arvind Soni knew about it. When the seizure was made from the godown, accused No. 3 was very much present. In the light of the aforesaid uncontrovertable aspect emerging from record at prima facie stage, would clearly show involvement of accused No. 3, warranting pre-trial detention an aspect which has a policy and purpose behind it.
14. The learned Special Judge has taken a view that prima facie, therefore, does not seem to be involvement of accused No. 3 in the alleged conspiracy, finding that principal offender Dr. Panchal was in the jail since November 1993 and he came to be arrested on 16-1-1994, though according to the case of the defence, he was taken into custody from 13-1-1994. Placing reliance on the fact that main accused Dr. Panchal was in jail and the bulk of Mandrex from the godown of accused No. 3 was found on 16th January 1994, there could not be a conspiracy. It appears that the offence of conspiracy is such type of offence in which the person could join at the inception or on the middle or at the end. The conspiracy remains until it is broken and conspirators not necessarily should be associated from the inception. This clear and settled proposition of law appears to have lost sight of by the learned Special Judge. It would be interesting to refer here that the provisions of Section 120-A and B of Indian Penal Code and the relevant case law of the Apex Court rendered in the case of Mohd. Hussain Umar Kochra v. K.S. Dalipsinghji . It is held in the said decision by the Apex Court that the criminal conspiracy as defined in Section 120A is an agreement, by two or more persons, to do, or cause to be done, an illegal act, or an act, which is not illegal, by illegal means. The agreement is the gist of the offence.
15. In order to constitute a single general conspiracy, there must be common design and a common intention of all to work in furtherance of the common design. Each conspirator plays his separate part in one intergrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accompolished. Again it will be important to note that the Hon'ble Supreme Court has observed that the evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. It is also observed that the conspiracy may develop in successive stages. There may be a general plan to accomplish the common design by such means as may from time to time be found expedient.
16. New techniques may be invented and new means may be devised for advancement of the common plan. A general conspiracy must be distinguished from a number of separate conspiracies having a similar general purpose. Where different groups of persons co-operate toward their separate ends without any privity with each other, combination constitutes a separate conspiracy. The common intention of the conspirators then is to work for the furtherance of the common design of his group only. That case has arisen out of Foreign Exchange Regulation Act. It was found that the accused was one of the conspirators.
17. The aforesaid observations are high-lighted with a view to bring into focus the patently wrong view of the learned Special Judge holding in light of the fact that principal offender was in custody since November 1993 and accused No. 3 had shown the godown from where bulk of Mandrex tablets were recovered on 16th January 1993, and therefore, there could not be a conspiracy. Approach adopted by the learned Special Judge is not sustainable being devoid of force of law.
18. One more ground on which accused No. 3 is granted bail is that this Court in some criminal misc. applications, has considered fit case for the grant of bail to accused Nos. 4, 5, 6 and 7 and the impugned order is also passed on this ground. With due respect, the approach of the learned Special Judge in examining the facts and circumstances qua accused persons in those criminal applications before this Court is not only not correct, improper but is illegal. Bail applications are decided by this Court in the light of the facts and circumstances of each case. If the decision is rendered by this Court only on principle, obviously, it will have to be considered and applied in similar cases. When the cases are decided on facts, they cannot be said to have been decided on principle. It is also not stated and rightly so that the misc. criminal applications decided by this Court were on principles and not on facts of each case.
Following table would show the number of bail applications and date of their decisions:
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Case No. Date Result
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Cri. Misc. Appln. 12-8-1994 Allowed by brother C.V. Jani, J. No. 1969 of 1994. (as he then was) Cri. Misc. Appln. 28-7-1994 Rejected by brother C.V. Jani, J. No. 1693 of 1994. (as he then was) Cri. Misc. Appln. 21-12-1994 Allowed by brother No. 4299 of 1994 K.R. Vyas, J.
It is not disputed that in the aforesaid cases before this Court, there was no question of recovery of Mandrex tablets from the possession of any of the accused persons who are granted bail. In the present case, illegal bulk of narcotic Mandrex tablets came to be recovered by the officials of Customs Department from the godown rented by accused No. 3 in his presence and prima facie who has played very important roll. If it is, successfully, spelt out that the possession was found from particular person or accused, the presumption under Section 54 of N.D.P.S. Act would emerge. In the cases which were dealt with by this Court, admittedly, there was no question of possession of such illegal articles. Therefore, on both the counts, firstly on the ground that the aforesaid criminal misc. applications were determined and adjudicated upon on the facts emerging in relation to each of the accused and not decided on principles; secondly, there was no question of finding of any such illegal or prohibited narcotic psychotropic drugs, whereas in the case on hand, the bulk of Mandrex tablets worth Rs. 1,66,87,000/- weighing about 1,545 Kgs. was recovered from the godown rented by accused No. 3. Therefore, the view of the learned Special Judge that since this Court had decided to grant bail to accused Nos. 4, 5, 6 and 7 out of total seven accused persons, accused No. 3 should also be admitted to bail, is, with due respect, improper and illegal.
19. This Court in Division Bench decision rendered in Abdul Hamid Pathan v. State of Gujarat 1987 (2) XXVIII (2) GLR 942, has observed that in the offence under N.D.P.S. Act, bail should not normally be granted. The Division Bench has observed as follows:
That in those types of cases normally accused should not be released on bail. It should not be forgotten that in a murder case, the accused commits the murder of one or two persons, while those persons who dealing in charas, ganja or intoxicating drugs are causing the deaths of number of persons in the society and/or ruining their lives. They are a hazard to the society and if they are released on bail, they are likely to continue their nefarious activity of continuing the business of trafficking in intoxicants clandestinely. These types of offenders affect the society at large. The law should not be made so much impotent that it does not serve the society and the anti-social elemments should not be given licence to create havoc in society. Law should be interpreted in such a manner that it gives protection to the society from anti-social elements creating havoc, otherwise lawlessness and antisocial elements would affect the fibre of the society as a whole.
20. There cannot be a dispute about the fact in order to check and control the increasing drug trafficking and drug abuses, stringent provision is made in N.D.P.S. Act. Therefore, special provision is also made in Section 37 of N.D.P.S. Act relating to grant of bail by which more statutory provisions are incorporated, over and above limitation prescribed in Section 439 of the Code of Criminal Procedure, 1973 ('Code' for short). There is no dispute about the fact that the provisions of Section 37 of N.D.P.S. Act are applicable to the facts of the present case, as the accused are alleged to have commited offences punishable under Sections 22, 23, 25, 28 and 29 of N.D.P.S. Act which are punishable with rigorous imprisonment for a term exceeding five years. Therefore, Section 37 can be pressed into service by the prosecution. The Apex Court has clearly held that in such cases, special provisions of bail contained in Section 37 of N.D.P.S. Act would be applicable and should be seriously taken into account while examining merits of the bail application. The Apex Court of India in Narcotics Control Bureau v. Kishan Lal and Ors. has held that When there is a special enactment in force relating to the manner of investigation, enquiry, or otherwise dealing with such offences, the other powers under Criminal Procedure Code should be subject to such special enactment. The underlying dominant purpose is also explained. The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction, if it does not lead to an absurdity. On the analysis of the aforesaid provisions, it becomes crystal clear that the Court cannot release the accused persons charged with such serious offences under N.D.P.S. Act unless the conditions contained in Section 37 of N.D.P.S. Act are complied with.
In view of the provisions of Section 37, where the Public Prosecutor opposes the bail application, the Court is satisfied that:
(1) there are reasonable grounds for believing that he is not guilty of such offence and;
(2) that he is not likely to commit any offence while on bail.
Unless and until, aforesaid both the conditions are statisfied from the record of the case, the accused of such serious charges under N.D.P.S. Act is not qualified and entitled to the grant of bail. In the light of the factual scenario of the present case, could it be said that there are reasonable grounds to believe that the accused No. 3 is not guilty of such offences under N.D.P.S. Act, from whose godown and possession the bulk of 1,545 Kgs. of Mandrex tablets which were duly recovered and the value of which is Rs. 1,66,87,00/-? Obviously answer would be against accused No. 3 at the prima facie stage. Again the Court is required to consider that even if he is prima facie not found guilty of such offence, then also the second condition which should be satisfied is that it should be found by the Court that he is not likely to comit any offence while on bail.
21. It is an admitted fact that accused No. 3 Arvind Soni is also found guilty for smuggling gold by the department of Customs. It is also not in dispute that accused is detained for the alleged offence punishable under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Thus a man who has such a background and coupled with the aforesaid facts and circumstances, it would not be possible to prima facie conclude that he is not likely to commit any offence while on bail. Therefore, the aforesaid two conditions are not satisfied. Otherwise also the bail under Section 439 of the Code is also not a right but it is a concession. It cannot be said that the accused should be enlarged on bail merely because he is having settled house and is not likely to jump the bail, if granted.
22. It is one of material mandates for the bail application which the Court is required to consider. No doubt, the observations of the learned Special Judge that the accused is not likely to jump the bail may not warrant interference. But that aspect itself would not be sufficient. It is one of the constituents. According to the settled proposition of law, the following ingredients and aspects, inter alia, are required to be borne in mind, while examining the merits of the bail application:
1. the length of his residence in the community.
2. his employment status, history and his financial conditions.
3. his family ties and relationships.
4. his reputation, character and monetary conditions.
5. his prior criminal record including any record on prior release on recognizance or on bail.
6. the identity of responsible members of the community who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of nonappearance and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.
23. It is also settled proposition of law that the moment Court finds prima facie case against the accused of serious charges like murder or an offence punishable for more than seven years imprisonment, he as a matter of right cannot be allowed to take and have personal liberty. The Court is obliged to strike a balance, personal liberty of an individual and interest of society at large. More so in a case like one on hand, where, the offences under Sections 22, 23, 24, 25 or 28 of N.D.P.S. Act are very serious than the murder. Here in his case, due to drug trafficking or abuses of drugs, more than one persons may suffer. Therefore, consideration in such cases should be on the higher side than the murder trial. That is, precisely, the reason why the stringent statutory inhibitions on the discretionary power of the Court relating to the grant of bail are prescribed in Section 37 of N.D.P.S. Act.
It is a settled legal proposition that the question whether to grant bail or not, would be answered upon the variety of circumstances and cumulative facts of the case. Any one single circumstance cannot be treated as an universal value. The learned Special Judge has wrongly come to the conclusion that no prima facie case was made out against the petitioner-original accused No. 3.
24. Thus, from the principles laid down by the Apex Court, it could safely be concluded that the Court is obliged to consider all the facts and circumstances and decide the merits of the bail application, where bail is not a right but a concession. Not only that on the contrary, it is found from aforesaid decision that once prima facie case is made out against the accused, all other reasons like that there are good chances of success and that he will not tamper or hamper with the prosecution evidence and like other reasons become irrelevant, more so in a case of serious charges and offences under N.D.P.S. Act.
25. The manner and mode in which the learned Special Judge has examined and appreciated the facts and circumstances of the case of a serious charge like one on hand and having found prima facie case, with due respect, is required to be depricated. It should be noted that in serious cases under N.D.P.S. Act, the Hon'ble Supreme Court has observed in the case of State of Maharashtra v. Anand Chintanman Dighe disapproving such manner of appreciation of evidence. It is further held that the appreciation of evidence while considering bail application virtually amounted to pre-empting the judgment of culpability of the accused. Therefore, the Supreme Court allowed the appeal filed and had quashed the order of granting of bail application by the High Court. It was also observed in the said case which is very pertinent to mention that the learned trial Judge, virtually, pre-empted by delivering judgment of culpability of accused.
26. The discretion under Section 439 of the Code for grant of bail is required to be exercised, with due care and caution, in serious cases and more so when special provisions of Section 37 are attracted. Section 439 of the Code is further subject to inhibition contained in Section 37 of N.D.P.S. Act. The learned Special Judge has committed not only serious error but also illegality in exercising the discretionary powers of the Court circumscribed further by Section 37 of N.D.P.S. Act.
27. In the light of the facts and circumstances of the case and aforesaid case law, it becomes crystal clear that one person who is the accused is punishable under N.D.P.S. Act can only and only be released, if in the opinion of the Court, 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, with due respect, material on record does not merit grant of exercise of discretion in favour of accused. This Court has no hesitation in observing that it would not be correct to appreciate the material available on record and merits of the case including technical compliance of such provisions of law in order to return the finding that there is no reasonable ground to believe that the accused is not guilty of such offence and that too when he is prima facie found in possession of bulky illegal article, i.e., Narcotic substance like Mandrex tablets worth Rs. 1,66,87,000/- much less, in such a situation, that he is not likely to commit any offence, if enlarged on bail. These two important and required conditions ought to have been seriously examined by the learned Special Judge in the light of the material provision of Section 54 of the Act. There is no hesitation in finding that the learned Special Judge has committed serious illegality in admitting the accused to bail pending the trial for the serious offences punishable under Sections 23, 24, 25, 28 and 29 of N.D.P.S. Act read with Sections 120A and 120B of the Indian Penal Code, when prima facie case indicating involvement of respondent No. 1-original accused No. 3 Arvind S. Soni is, successfully, spelt out from the record. Therefore, this Court has no hesitation and is left with no alternative but to quash and set aside the order granting bail to the original accused No. 3. Consequently, impugned order of learned Special Judge passed on 16-1-1995 in Criminal Misc. Application No. 810 of 1994 arising out of Sessions Case No. 162 of 1994 is quashed and set aside. The accused is directed to surrender to the bail.
However, it is stated at the bar now that the accused No. 3, respondent No. 1, herein, Arvind Shivlal Soni is serving the detention by an order passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), the copy of writ of this order shall be sent to the concerned authorities. This application is allowed accordingly. Rule is made absolute.