Bombay High Court
Department Of C. Ex. (H. Q.) vs Rajesh Tulsidas Vedant on 1 January, 1800
Equivalent citations: 1990(45)ELT529(BOM), 1989MHLJ304
JUDGMENT
1. This is suo motu proceeding initiated by this Court, in exercise of its inherent powers under Section 482 of the Criminal Procedure Code, 1973 and the supervisory writ jurisdiction vested on it under Article 227 of the Constitution of India, for cancellation of bail order passed in favour of the respondents by the learned Chief Metropolitan Magistrate, Bombay.
2. The tale - telling facts giving rise to the suo motu action are as under:
On 10th August, 1988, the Officers of the Central Excise, on a secret information, kept a secret vigil over the entrance No. 2-B of the departure hall of the New International Passengers Terminus, Sahar. At about 21.45 hrs., they accosted respondent Nos. 1 to 3 (hereinafter referred to as `Rajesh, Atul and Pradeep' respectively). The trail of investigation that commenced thereafter led to starting discoveries. It was revealed that Rajesh was a passenger leaving India for Brussels. He had an air-ticket for a journey between Bombay - Brussels - Bombay. He admitted being a possession of brown sugar. Atul and Pradeep admitted that they had accompained Rajesh to see him off `safely'. Rajesh, Atul and Pradeep, along with the baggage of Rajesh, were taken to the office of the Central Excise Department at Piramal Chambers, Lalbaug, Parel, Bombay - 400012, duly accompanied by panch- witnesses. There, brown sugar weighing 1110 gms. valued at Rs. 2,20,000/- concealed under cashewnuts in tins was recovered from Rajesh's baggage. In the follow up action, respondent No. 4 (hereinafter referred to as Kirti) who is brother of Atul was traced at Glamour Guest House, kandivali, Bombay. Kirti led the officers to his rented premises in Parwana building at Borivali, Bombay. A search of the said flat resulted into recovery of brown sugar weighing 1450 gms. valued at Rs. 2,90,000/-. The same was seized. Packing materials, weighiong machine and electrically operated press for sealing tins etc. were also found in the flat and seized.
3. Rajesh, Atul, Pradeep and Kirti were put under arrest at about 10.30 hrs. on 12th August, 1988 for commission of alleged offences punishable under the Customs Act, 1962 and the Narcotic Drugs and Psychotropic Substances Act, 1985. They were produced before the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay on the same day at about 13.40 hrs. along with a remand application bearing No. 685 of 1988 and their custody was asked for. They were remanded to judicial custody till 26th August, 1988.
4. On 26th August, 1988, the same Additional Chief Metropolitan Magistrate extended the remand period upto 9th September, 1988 on the report and at the request of the Central Excise Department.
5. In the meanwhile, on 31st August, 1988 when the concerned Additional Chief Metropolitan Magistrate was on leave, an interim application for bail was made on behalf of Atul, Pradeep and Kirti in the Court of the learned Chief Metropolitan Magistrate who issued notice to the Central Excise Department, returnable on 2nd September, 1988. It appears that the bail application was opposed on behalf of Central Excise Department be the Magistrate released Atul, Pradeep and Kirti on bail in sum of rupees two lakhs each with one surety in the like amount or cash deposit of the same amount.
6. Rajesh was produced before the Chief Metropolitan Magistrate on 9th September, 1988, the usual day of remand, when he was also released on bail in sum of Rs. 1,50,000/- with one surety in the like amount or a cash deposit of Rs. 1,25,000/-.
7. On 5th September, 1988 one Mukesh Chhotalal Shah made an application in the Court of the Chief Metropolitan Magistrate that he accepted as surety in sum of rupees six lakhs for Atul, Pradeep and Kirti. The Magistrate accepted him as surety for Atul and Kirti only, by his order dated 21st September, 1988.
8. Feeling aggrieved that the Chief Metropolitan Magistrate did not accept him as surety for Pradeep, Mukesh Shah filed criminal application No. 1917 of 1988 in this Court on 22nd September, 1988 and prayed that he be accepted as surety for Pradeep also.
9. On hearing Miss Safari, appearing on behalf of Mukesh Shah, Mr. M. K. Patwardhan on behalf of the Central Excise Department and Mr. K. H. Chopda, Addition at Public Prospector on behalf of the State, I strongly felt that this was not a fit case for released of the accused persons on bail. Therefore, without passing any orders on criminal application No. 1917 of 1988, on 26th September, 1988, by a reasoned order, I directed the registry of this Court to issue notices to Rajesh, Pradeep, Atul and Kirti to show cause why the bail orders passed in their favour should not be cancelled. Record and proceedings of the lower court were also called for with a view to examine them.
10. In support of the said notices, Mr. Patwardhan submits that the bail applications on behalf of the four accused persons were opposed by and on behalf of the Central Excise Department pointing out to the learned Magistrate that this is a case of narcotic drugs involving international gang and the department required more time to investigate and further that there were no changed circumstances after the learned Additional Chief Metropolitan Magistrate had remanded the accused persons to custody from 26th August, 1988 to 9th September, 1988 and also that Rajesh was a repeater in the same offence which submissions were not considered by the Chief Metropolitan Magistrate who by his cryptic orders released the accused persons on bail. Mr. Patwardhan further submits that the bail orders passed in favour of the accused persons here were in violation of the statutory and mandatory obligation cast upon the magistrate under Section 437(4) of the Criminal Procedure Code of recording reasons in writing as has been held by this Court (Ashok Agarwal, J.) in case of Prashant Kumar v. Mancharlal Bhagatram Bhatia and others (AIR 1988 Cri. L. J. 1463) and further that on the facts and in the circumstances of this case where the accused were concerned in a serious offence of drug trafficking they should not have been released on bail with the haste in which it was done. Mr. Patwardhan, therefore, urges that looking at the gravity of the offence, the punishment provided for, the possibility of the accused persons repeating the same offence and the temptation to jump bail because of the heavy punishment, I should exercise the inherent powers of the High Court under Section 482 of the Criminal Procedure Code and the Supervisory writ jurisdiction under Article 227 of the Constitution and cancel the bail granted to all the four accused.
11. Mr. Gupte, appearing on behalf of Rajesh, submits that his client is still in custody and that nothing incriminating was found from his house and no more investigation is required to be done and there are no chances for Rajesh to abscond because his passport is with the Customs office and he is also not likely to repeat the offence. Lastly, Mr. Gupte submits that Rajesh has a house in Bombay where he resides with his parents and there is no reason why his bail should be cancelled.
12. On behalf of Atul, Pradeep and Kirti, it is submitted by Miss. Safari that her clients are not charged with offences punishable with death or imprisonment for life. They were in custody for 20 days before the bail orders made and Atul and Kirti were able to avail of the bail order only after 43 days. She further submits that condition of daily attendance at the office of the Central Excise is imposed on them and they are faithfully complying with that condition. She also submits that these persons are from ordinary families and are not hardened criminals. Atul and Kirti have not and will not abuse the freedom granted to them. In the submission of Miss Safari, bail granted to accused persons may be cancelled only if they are likely to indulge in similar offences or tamper with the evidence or threaten the witnesses or likely to abscond or misuse the liberty granted to them and none of these circumstances exists in this case warranting cancellation of bail of Atul, Pradeep and Kirti. In support of her contentions, Miss Safari relied upon the judgments of the Supreme Court and Guwahati and Sikkim High Courts in the cases of (1) The State through the Delhi Administration v. Sanjay Gandhi (1978 Cri. L. J. 952), (2) Bhagirathsingh Judeja v. State of Gujarat (1984 Cri L. J. 160), (3) Khagendra Nath Bayan and another v. The State of Assam (1982 Cri. L. J. 2109) and (4) Sambhunath Bhattacharjee v. State of Sikkim (1980 Cri L. J. 785).
13. Before I embark upon discussing the merit of the matter, let me first narrate the legislative history leading to the passing of the Narcotic Drugs and Psychotropic Substances Act, 1985 which may enlighten us to be more alive to our pious duty of discharging judicial functions to serve and do justice to the people for whom the courts are meant and not look to the individual liberty of a few who are a nuisance to the society. Thus, the statutory control over narcotic drugs was exercised in India through a number of Central and State enactments. The principal Central Acts, namely, the Opium Act 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a long time ago. With the passage of time and the developments in the field of illicit drug traffic and drug abuse at national and international level, many deficiencies in these laws were noticed. Some of them are as under :
(a) The scheme of penalties under those Acts was not sufficiently deterrent to meet the challenge of well-organised gangs of smugglers. The Dangerous Drugs Act, 1930 provided for a maximum term of imprisonment of three years with or without fine and four years imprisonment with or without fine for the repeated offences. Further, no minimum punishment was prescribed in the said laws as a result of which drug traffickers were some time let off by the Courts with nominal punishment. The country has for the last few years been increasingly facing the problem of transit traffic of drugs coming mainly from some of our neighboring countries and destined mainly to western countries.
(b) The earlier central laws did not provide for investing the officers of a number of important central enforcement agencies like narcotics, customs, Central excise etc. with the power of investigation of offences under the said laws.
(c) Since the enactment of the aforesaid three Central Acts, a vast body of international law in the field of narcotics control has evolved through various international treaties and protocols. The Government of India has been a party to these treaties and conventions which entail several obligations which are not covered or are partly covered by the aforesaid three Acts.
(d) During recent years, new drugs of addition which have come to be known as Psychotropic substances have appeared on the scene and posed serious problems to national governments. These was no comprehensive law to enable exercise of control over psychotropic substances in India in the manner as envisaged in the Convention of Psychotropic Substances, 1971 to which also India has acceded.
Thus, urgent need for the enactment of a comprehensive legislation on narcotic drugs and Psychotropic substances which, inter alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drugs of abuse, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over Psychotropic substances and make provisions for the implementation of international conventions relating to narcotic drugs and Psychotropic substances to which India has been a party, was felt and as a result the present Act was enacted in the year 1985. The only deficiency which I notice in this enactment is the absence of death penalty for an accused person found guilty of some of the offences enumerated in it.
14. Now, on careful consideration of the record and proceedings of the case and the submissions made at the Bar, I am unable to persuade myself to agree with any of the contentions raised on behalf of the accused by Mr. Gupte and Miss Safari. The record shows that these four accused persons have international links in the racket of disposal of narcotic drugs and their nefarious activities of dealing in brown sugar are well- schemed, well-planned and well-designed as a result of deep-rooted conspiracy. They made attempts to smuggle large quantity of brown sugar in polythene bags wrapped in carbon papers and concealed in the cavities between the inner and outer plastic bodies of a thermos called "Hot- pot". They were also found in possession of packing material, a sensitive weighing machine and electrically operated press for sealing tins. Their statements recorded under Section 108 of the Customs Act show that in the morning of 10th August, 1988 Rajesh visited the residence of Kirti and at the instance of Kirti, Rajesh and Kirti's brother Atul went to Opera House and collected from a traveling agent the air-ticket and U. S. Dollars numbering 500, the charges of which were paid by Atul at the instance of Kirti. Thereafter Rajesh went home and left it at about 6.00 p. m. falsely telling his parents that he was proceeding to Calcutta. Then Rajesh went to the residence of Kirti where Atul and Pradeep were present. Atul and Pradeep took Rajesh to a flat in parwana building at Borivali where Kirti handed over four tins containing brown sugar to Rajesh and gave him instructions to go to Brussels and Rotterdam for delivering brown sugar after receiving instructions on phone from him. Rajesh received to and fro air-ticket and U. S. Dollars. He was to get Rs. 20,000/- if he did a successful trip. Atul and Pradeep accompanied him to Sahar Airport for his `safe' departure. The record further reveals that Rajesh had earlier on 29th April, 1988 gone to Brussels and Antwarp and had handed over narcotics to a person at the instance of Kirti who had paid all his expenses and Rs. 20,000/- for the said trip. The record also shows that Kirti had taken a flat in parwana building on a monthly rent of Rs. 1,000/- and had purchased a sealing machine for Rs. 6,000/- which he had installed in the said flat and he used to store drugs there in packages and tins. Kirti also disclosed the source from which he got narcotic drugs. Atul had in fact packed and concealed the brown sugar under the cashew nuts in the four tins on 9th August, 1988 in the Parwana flat at the instance of Kirti. All of them knew that Rajesh was smuggling out brown sugar on 10th August, 1988.
15. Regard being had to these facts and circumstance and in view of the contention of the prosecution that Rajesh had in the past indulged in a similar activity, the Chief Metropolitan Magistrate should have been more circumspect in releasing the accused persons on bail. A case of conspiracy, he should have realised, is difficult to investigate and unearth. The investigating agency is entitled to adequate time for that. Moreover, one should not be oblivious of the menace of drug trafficking. Its disastrous consequences are difficult to be described in words. In a grave offence like this, a Magistrate should think twice before granting bail. One should bear in mind that these offences are of very grave type where the minimum punishment is 10 years with a fine of a lakh of rupees and the maximum may extend to 20 years with a fine of rupees two lakhs and for the special reasons even more than two lakhs. Although the accused persons for this sort of an offence cannot be visited with a penalty of death sentence or imprisonment of life, i am of the opinion that such offences are not less serious than those punishable with death or imprisonment for life. Left to myself. I would recommend the legislature to make provision of death sentence for such offences because in the commission of these offences not murder but mass murders are involved. While dealing with a case of economic offences, the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Portal and another (1987 Cri. L. J. 1061), was pleased to Observe :
"Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy any National Interest."
The instant case does not merely involve an economic offence but worse than that being an offence against humanity. Such offences adversely affect the national and international health. Apart from unfortunate victims of drug addition, innocent children in thousands and perhaps in lakhs in the world may ruin their lives by consuming drug like brown sugar and, therefore, anyone who indulges in such heinous crime has to be dealt with a very heavy hand if humanity is to be served. In this case, in my opinion, there is a well founded apprehension that if out on bail, the present accused persons may indulge in similar offences or may abscond and may not be available for trial.
16. Miss Safari relied upon two Supreme Court rulings and one of the Guwahati High Court and one of the Sikkim high Court, as stated above, in support of her argument that grant of bail is one thing and cancellation of the same is another and that bail once granted should not be easily concelled and be sparingly done. There is no dispute about the law enunciated in the said judgments but it is pertinent to note that those observations were made on the facts and in the circumstances of the particular cases and the same are not applicable to the facts and circumstances obtaining in this case where a well organised gang is dealing in a dangerous drug like brown sugar with impunity. I may mention here that the of - quoted slogan `bail and no jail was also shouted in this Court by Miss Safari, forgetting a vital aspect of the matter that cancellation of bail in a case like this is the need of the hour.
17. In this view of the matter, the suo motu action, which I am told by Miss Safari is unprecedented, succeeds and the bail orders passed in favour of the four accused persons by the learned Chief Metropolitan Magistrate are cancelled in accordance with the provisions of sub- section 2 of Section 439 of the Criminal Procedure Code, in the interest of justice and for the greater good of the larger number of people.
18. In view of the cancellation of bail, the criminal application No. 1917 of 1988 does not survive and stands disposed of. But before I part with the matter, let me say how I feel about the propriety of the learned Chief Metropolitan Magistrate in accepting Mukesh Chhotalal Shah as a surety for two accused persons for large sum of rupees four lakhs. He is a person from Baroda and thus not domiciled in the State of Maharashtra and, therefore, ordinarily he should not have been accepted surety as was done here. I do not suggest for a moment that a person who has no territorial roots in the State of Maharashtra in never to be accepted as a surety. But one has to be very careful before doing so because in the event of the accused persons jumping bail, it is rather difficult to recover large amount of money as arrears of land revenue from a person whose wealth lies outside the State of Maharashtra. Therefore, technically speaking, there is nothing wrong or illegal in accepting a person from outside the State of Maharashtra as a surety for an accused person in Bombay but prudence, propriety and the reality of judicial life do indicate that it is rather unsafe, risky and unwise to do so. Therefore, I do not think that the order of the Chief Metropolitan Magistrate accepting Mukesh Chhotalal Shah as a surety for the two accused persons in sum of rupees four lakhs was proper, although it may be legal.
19. Atul and Kirti are already out on bail. I am told that they are present in this Court. They are ordered to be taken in custody.