Jammu & Kashmir High Court - Srinagar Bench
Abdul Rashid Padder vs State Of U.P 1993 Cri.L.J 1785 It Has Been ... on 13 May, 2010
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR B. A. No. 99 of 2009 Abdul Rashid Padder Petitioners State & others Respondents !Mr. G.A.Lone, Advocate ^None Honble Mr. Justice Hasnain Massodi, Judge Date: 13/05/2010 :J U D G M E N T:
This is an application for grant of bail to Shri Abdul Rashid Padder S/o Abdul Gani Padder R/o Bathipora, Tehsil D.H.Pora, arrested by P/S D.H.Pora on 02.08.2007 in connection with case FIR 83/2007 under section 15/18 Narcotic Drugs and Psychotropic Substances Act 1985 (for short NDPS Act) registered at the Police Station.
From perusal of the application and other record available on the file, it transpires that on 02.08.2007 P/S D.H.Pora received information from a reliable source that the applicant had stored narcotic substance in his residential house at village Bathiphora, Tehsil D.H.Pora. The information prompted P/S D.H.Pora to register case FIR No.83/2007 under section 15/18 NDPS Act 1985. Soon after the case was registered, SHO P/S D.H.Pora swung into action, raided the house of the applicant and recovered 10 bags of phuki poppy straw from the residential house of the applicant. The seizure was made in presence of Naib Tehsildar, D.H.Pora who was associated by SHO, D.H.Pora with the search operation. The recovered material was sealed, sampled and the sample forwarded to FSL for chemical analysis. The report confirmed presence of narcotic substance in the seized material. The investigation culminated in filing of a charge sheet against the applicant.
The applicant/accused was formally charged of the offence under section 15/18 NDPS Act and after the charge was denied, the prosecution was asked to adduce evidence in support of the charge. The prosecution has examined few of its witnesses and other witnesses have yet to step in the witness box.
The applicant / accused, in custody since 02.08.2007, filed an application for bail in the Trial Court on 31.10.2007. The trial court was not impressed by the grounds set out in the application and accordingly rejected the application and declined bail to the applicant/accused. The Trial Court while dealing with the application did notice that a few of the civilian witnesses examined by the prosecution, did not support the prosecution case. The Trial Court nonetheless refused to enlarge applicant on bail, opining that a number of official witnesses were yet to be examined and their testimony was as important as that of the civilian witnesses. The Trial Court was of the opinion that under section 57 of the NDPS Act, a presumption is raised regarding guilt of the accused and it is for the accused to prove by the preponderances of probabilities that he is not so a guilty. The Trial Court was also of the opinion that in terms of section 37 of the NDPS Act, the onus was on the accused to establish that there are reasonable grounds for believing that he is not guilty of the offences alleged against him.
Fresh bid for bail is made on the grounds that investigation suffers from serious irregularities in the search operation and sampling of the alleged recovered material. The Investigating Agency is said to have even given a go by to the instructions of Director General of Police. The independent witnesses, according to the applicant/accused have not supported the prosecution case and the prosecution case is destined to fail because of the lapses highlighted in the application. The Trial Court is said to have landed in an error by opining that the accused in a NDPS case is burdened with an onus to prove his innocence and that there was a presumption of guilt of the accused.
The bail application is resisted on the grounds that the offences against the alleged accused is heinous in nature and that the earlier bid made by the applicant/accused for bail, has been rightly rejected by the said Trial Court. The prosecution is said to have examined as many as 8 out of the 16 listed witnesses so far and was likely to examine rest of the witnesses in immediate future. The respondents have denied that there was any procedural irregularity in search and seizure of the contraband or its sampling Heard and considered.
Heard and considered Section 37 of NDPS Act 1985 prohibits grant of bail to a person accused of offence punishable under section 19, 24, 27-A, or the offence involving commercial quantity of Narcotic drugs or Psychotropic substances. Section 37 (1) (b) (i) and (i-2) lay down circumstances in which bail may be granted notwithstanding the prohibition embodied section 37 (1) (b) of the Act. The Court approached by an accused alleged to have committed offences punishable under any one or more provisions of the Act, enumerated in section 37 (1) (b) is given power to admit the accused to bail provided:
i) The Public Prosecutor has been given an opportunity to oppose the bail application.
ii) The Public Prosecutor, does not, though provided an opportunity to oppose the bail application, resist the bail application.
iii) The Public Prosecutor oppose the bail application, but the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences alleged against him and that he is not likely to commit any offence while on bail.
In the present case the respondents have opted to oppose the application. The court is thus to see whether there are reasonable grounds to believe that the applicant/accused is not guilty of the offence punishable under section 5/18 NDPS Act and further that the applicant/accused is not likely to commit any offence while on bail.
The threshold argument made by Ld. Counsel for the applicant that the Trial Court misdirected itself while concluding that u/s 37 of the NDPS Act, it was the accused who had to satisfy the Court that there are reasonable grounds for believing that he is not guilty, is specious and bereft of merit. There is no confusion about the settled legal position that it is always for the accused alleged to have committed one or more offences mentioned in section 37 (1) (b), asking for bail, to convince the court that there are reasonable grounds to believe that he is not guilty of the offences alleged against him and further that he is not likely to commit any offence while on bail. The prosecution does not owe any duty to the accused to satisfy the Court while opposing the application for bail that there are reasonable grounds to believe that the accused is guilty of the offence alleged against him or that he is likely to commit any offence while on bail. However, the observation made by the Ld. Trail Court while disallowing the bail application, that in terms of section 57 of the NDPS Act. there is a presumption of guilt against the accused alleged to have committed offences under any of the provisions of NDPS Act and that it is for the accused to prove by preponderance of probabilities he is not so guilty, is fallacious and devoid of any substance. Section 57 of the Act nowhere raises presumption of guilt of the accused, as is attributed to the provisions by the Trial Court. The presumption of guilt of the accused a mention where of is made in the order of the Trial Court rejecting bail application, runs contrary to the fundamental principles of criminal jurisprudence. Having said so, let us shift focus to the requirements of section 37 (1) (b) and (ii) NDPS Act.
Section 37 (1) (b) (ii) visualizes presence/ existence of reasonable grounds of believing that he (accused) is not guilty of such offence (offence mentioned in section 37 (1) (b). What is exactly meant by the expression reasonable grounds for believing that the accused is not guilty of the alleged offences, is a question that calls for a brief discussion.
The court while dealing with the application for bail in a case like one in hand, is not required to conduct preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Court is to arrive at prima-facie conclusions by applying its mind to the material that is available before the Trial Court when a motion for bail is made. The court is required to decide the question of bail on the materials before the Trial Court and not to prejudge the end result of the trial. The expression reasonable grounds for believing has been held to mean such grounds as are based on reason or logic. The grounds should be such as may lead one to believe that the accused is not guilty of the offence alleged. It is not only the probability of the grounds being creative of a belief to find the possibility of such a belief which is sufficient to give rise to the conclusions referred to in section 37 (1) (b) (ii). Insufficiency of the evidence, when most part of the evidence has been already brought on the file to connect the accused with the alleged occurrence or a serious flaw in the investigation may be the some of possible reasons that probablise and create a reasonable believe that the accused is not guilty of the offence of which he is charged. It needs no emphasis that even where the court is satisfied that there are reasonable grounds to belief that the accused is not guilty of the offence alleged against him, the Trial Court may on the conclusions of the trial find the accused guilty of the offence and convict the accused. What is sought to be emphasized, is that the Court while dealing with the bail application falling within the ambit of section 37 (1) (b) NDPS Act is not to scrutinize the material as if the court has to record a finding on the guilt or acquit the accused. In the present case the ground set up in the bail application apart from the claim that the independent witness relied upon by the prosecution, have belied the prosecution case, is that the Investigating Agency has observed the mandate of section 41 and 42 of the Act in breach and that the lapse has potential of vitiating the trial. It is insisted that above two grounds are likely to persuade the court on conclusions of the trial to dismiss the charge sheet, brought against he accused. It is argued that due to violation of mandatory provisions there is every reason for the court to feel satisfied that there are reasonable grounds for believing that the accused has not committed offence alleged in the charge.
Section 41 NDPS Act empowers a Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of second class specially empowered by the State Government in this behalf, to issue a warrant for the search whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substances or controlled substance in respect of which an offence punishable under NDPS Act has been stored. Section 42 (2) of the Act empowers an officer of the Gazetted rank of the Department mentioned therein who are specially empowered by general or special order by the Central Government to authorize any officer subordinate to such officer but superior in rank to the officer mentioned therein, to search a building, conveyance or place by day or by night where any narcotic drugs etc is suspected to be stored.
Section 42 of the NDPS Act empowers the officers mentioned in the said provision, to enter into and search any such building, conveyance or place between sunrise and sunset. It follows that an officer mentioned in section 42 in the event he has reason to believe that the narcotic drug or psychotropic substances or controlled substances is stored in a building or conveyance, may obtain a warrant from Chief Metropolitan for search under section 41 of the Act and in exercise of the authority given to him under warrant, enter into and search any building, conveyance or place between sunrise and sunset in which he has reason to believe the narcotic drugs and psychotropic substance or controlled substance is stored. Section 42 of the Act thus does not empower the officer to enter into and search any such building, conveyance etc after the sunset. Proviso to section 42 (1). However, carves out an exception in respect of cases, where the officer has reason to believe that search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of an offender. In such cases the search officer may enter and search such building conveyance or enclosed place at any time between sunset and sunrise. The officer nonetheless, is required to record the reason of his belief that a search warrant or authorization otherwise cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of an offender.
In the present case the search of the residential house of applicant/accused has been admittedly made between sunset and sunrise. The officer concerned has not obtained a search warrant in terms of Section 41 from the Metropolitan or a Magistrate of Ist. Class or any Magistrate of 2nd Class, specially empowered by the State Government in this behalf. The officer (SHO D.H.Pora) is not an officer of a Gazetted rank authorized by a general or special order by the Central Government etc in terms of section 41 (2) to authorize search nor is himself an officer who has been so authorized by an officer of the Gazetted rank duly authorized under section 41(2) of the Act, to conduct the search.
The officer (SHO, D.H.Pora) has not recorded the grounds of his belief that a search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of the offender. In the circumstances, SHO P/S D.H.Pora has violated mandate of section 41 and 42 of the Act while conducting search in question. The requirements laid down in the proviso to section 42 are mandatory in character and non compliance with the said provisions may vitiate the trial.
In Dadan Singh v/s State of U.P 1993 CRI.L.J 1785 it has been held that requirements of section 42 NDPS are mandatory and violation thereof raises presumption of prejudice and that mere alleged recovery of large quantity of narcotic drugs and psychotropic substances may not be considered to be sufficient to deny bail.
In Chunna alias Mehtab v/s State of M.P and Mohammad Sharief v/s State of M.P 2003 SCC (Cri) 1194, the Supreme Court has held that in the event of non compliance with the provisions of proviso to section 42 results in trial getting vitiated. In the reported cases it was not in dispute that entry in search of the premises took place between sunset and sunrise at 3.00 A.M and that proviso to section 42 of the NDPS Act was applicable and it was further admitted position that before the entry for effecting search of a building neither any search warrant was obtained nor were grounds where possible belief that if opportunity for obtaining search warrant or authorization is accorded the evidence will yet conceal or the offender escape, communicated. It was in the said background that non compliance with the aforementioned provision was held to vitiate the trial.
The grounds urged in the present application, for the reasons discussed, sound convincing and the arguments advanced, find support from law laid down on the subject.
For the reasons discussed, there are reasonable grounds for believing that the applicant/ accused is not guilty of offence punishable under section 15/18 NDPS Act and that the applicant/accused is not likely to commit any offence while on bail. So viewed, the applicant/accused has made out a case for grant of bail in his favour. Resultantly, the application is allowed and the applicant/accused enlarged on bail on his furnishing surety bond in the amount of Rs.100,000/- and personal bond in the identical amount to the satisfaction of Registrar Judicial, High Court wing Srinagar. Needless to mention, that the Trial Court shall proceed with the trial unmindful of observations made herein and may having regard to the offence brought on the file, conclude that no prejudice was caused to the applicant / accused by non compliance with the provisions of section 41 and 42 of NDPS Act.
Disposed of (Hasnain Massodi) Judge Srinagar 13.05.2010 G.Nabi