Gauhati High Court
Arjun Sharma vs The Union Of India on 2 August, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/18
GAHC010191452021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3237/2021
ARJUN SHARMA
S/OLT. RAMAYODHYA SHARMA
R/O CHANDIASTHAN, P.O. CHANDIASTHAN, UNDER GOVIND GANJ
POLICE STATION, EAST CHAMPARAN BIHAR, PIN-845411
VERSUS
THE UNION OF INDIA
REP. BY S.C. N.C.B.
Advocate for the Petitioner : MR P KATAKI
Advocate for the Respondent : SC, NCB
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 02-08-2022 This application under Section 439, Code of Criminal Procedure, 1973 ['the Code' and/or 'the CrPC', for short] has been preferred by the accused-petitioner viz. Sri Arjun Sharma seeking his release on bail in connection with NDPS Case Page No.# 2/18 no. 39/2021, presently pending before the Court of learned Special Judge, Kamrup [Metro] at Guwahati ['the trial court', for short]. The case has arisen out of NCB Crime Case no. 01/2021, registered under Section 8[c], Narcotic Drugs and Psychotropic Substances Act, 1985 ['NDPS Act', for short] and punishable under Section 22[c] and Section 29 of the NDPS Act.
2. The NCB Crime Case no. 01/2021 came to be registered in the following fact situation :-
2.1. At about 09-55 hours on 02.01.2021, Intelligence Officer, NCB, Guwahati received an information from a reliable source that one person, Md. Salam would be coming to a restaurant named Naga Kitchen, 3rd Floor, opposite Pantaloon Mall located at G.S. Road, Guwahati to deliver a huge quantity of Methamphetamine tablets to another person named Sri Arjun Sharma i.e. the accused-petitioner. The source further informed that Md. Salam would be coming to Naga Kitchen along with his accomplice named Sri K. Basanta Singh.
The information further revealed that those persons had kept more Methamphetamine tablets at their places of residence also.
2.2. The said information was reduced into writing and submitted before the Superintendent, NCB, Guwahati at 10-00 hours on 02.01.2020 and the matter was also informed to the Zonal Director, NCB. On being directed, a team was constituted with one of them as Investigating Officer [I.O.] authorized to search, seize and arrest. It is stated that at around 12-00 hours, the team so constituted, proceeded to Naga Kitchen and reached there at about 12-30 hours. After reaching there, they sought the assistance of two independent Page No.# 3/18 witnesses in order to carry out the process of search and seizure in their presence.
2.3. Inside the restaurant, Naga Kitchen, the NCB team found two persons sitting around a table in front of each other. The team along with the independent witnesses approached the said two persons showing their identities and asked about the drugs. The two persons disclosed their identities as Sri Arjun Sharma i.e. the accused-petitioner and Md. Salam. Md. Salam had a bag in his lap. On being asked, he opened the bag and took out one transparent polythene packet containing tablets marked as 'R' and 'WY'. Some tablets from the packet were taken out and crushed into powder form. When checked with the help of the drug detection kit carried by the NCB team it indicated Methamphetamine. When the accused-petitioner was confronted by the NCB team, he informed that he had come there to receive about 6 KGs of Methamphetamine tablets.
2.4. The packet was weighed and on weighment, it was found to be 5.800 KGs. The packet was then sealed and marked using the seal of NCB.
2.5. It was informed by Md. Salam that his accomplice, Sri K. Basanta Singh was waiting outside the restaurant. By pointing towards him through the window glass pane, Md. Salam had identified him. Accordingly, the personnel from NCB team intercepted the other accused person, Sri K. Basanta Singh.
2.6. Apart from the Methamphetamine tablets weighing 5.800 KGs, some other materials/articles like Adhaar cards, wallets, currency notes, ATM cards, Page No.# 4/18 PAN cards, etc. were seized from the possessions of the persons so apprehended in presence of the independent witnesses. After such seizure of the materials/articles, those were sealed with the signatures of the seizing officer of the NCB team, independent witnesses and the accused persons. Search and seizure lists and a panchnama were prepared on the spot. Thereafter, all the three persons were taken to the office of the NCB and the seized contraband substances were deposited to the NCB Malkhana.
2.7. On the basis of the information revealed by the accused persons, 1.860 KGs of Methamphetamine tablets were seized from the possession of Sri K. Basanta Singh at Sadananda Lodge, near Downtown Hospital, Guwahati.
2.8. The statements of all the three apprehended accused persons were recorded under Section 67 of the NDPS Act and thereafter, they were arrested. After arrest, all the three accused persons were produced before the Court of learned Chief Judicial Magistrate, Kamrup [Metro] Guwahati on 04.01.2021. The seized samples were also produced before the Court and samples for chemical examination were drawn in the presence of the learned Magistrate.
2.9. The procedure prescribed in Section 67 of the NDPS Act has been stated to be complied with.
3. During the course of investigation, the accused-petitioner preferred a bail application, B.A. no. 60/2021. The said bail application, B.A. no. 60/2021 was rejected by the learned trial court on 26.03.2021. A subsequent bail application, B.A. no. 73/2021 was again rejected by the learned trial court by an order dated Page No.# 5/18 28.04.2021.
4. The case of the respondent NCB, in brief, is that 7.660 [=5.800+1.860] KGs of Methamphetamine tablets had been seized from the accused persons. As per Entry no. 159 of the Table appended to the NDPS Act, issued in exercise of powers conferred by Clauses [viia] and [xxiia] of Section 2 of the NDPS Act, and as per the Notification vide no. 1893 of the Ministry of Finance [DoR], Government of India published in the Gazette of India on 18.11.2009, a quantity of Methamphetamine up to 2 gms is termed as small quantity and a quantity of Methamphetamine above 50 gms is termed as commercial quantity. The report dated 25.03.2021 of the Forensic Science Laboratory [FSL], Assam, Guwahati has reflected that the sample gave positive test for Methamphetamine. Viewed in relation to the total quantity of Methamphetamine tablets seized in connection with NCB Crime Case no. 01/2021, the quantity of contraband substances i.e. Methamphetamine tablets seized is evidently commercial quantity.
5. After completion of investigation of NCB Crime Case no. 01/2021, the NCB submitted the Offence Report under Section 36A[1][d], NDPS Act against 3 [three] accused persons viz. [1] Md. Salam; [2] Sri Arjun Sharma i.e. the accused-petitioner and [3] Konthoujam Basanta Singh, on 28.06.2021 before the learned Special Judge, Kamrup [Metro] at Guwahati. In the said Offence Report, one Md. Ayub Ali has been shown as an accused in abscondance and a prayer was made to issue non-bailable warrant of arrest [NBWA] as per law against him. On the basis of the said offence report, NDPS Case no. 39/2021 has been registered.
Page No.# 6/18 5.1. After submission of the Offence Report under 36A, NDPS Act, the accused-petitioner preferred another bail application, B.A. no. 170/2021 before the learned trial court but the same was also dismissed by the learned trial court by its order dated 13.07.2021.
5.2. It needs mention that after arrest of the accused-petitioner on 04.01.2021, he also preferred an application for bail during the course of investigation, before this Court, which was registered and numbered as B.A. no. 1085/2021. After consideration of the materials placed before the Court and after hearing the learned counsel for the parties, the said application, B.A. no. 1085/2021 was disposed of by an order dated 11.06.2021, thereby, rejecting the prayer for bail for the reasons assigned therein.
6. Heard Mr. P. Kataki, learned counsel for the accused-petitioner and Mr. S.C. Keyal, learned Standing Counsel representing the respondent Narcotics Control Bureau [NCB].
7. Mr. Kataki, learned counsel for the accused-petitioner has, at first, submitted that as the investigation of the case is complete, there is no requirement for further incarceration of the accused-petitioner in custody. The accused-petitioner is in prolonged detention since 04.01.2021. The accused- petitioner though originally hails from Bihar, carries on garage business in Imphal, Manipur and since 1986-1987, he has been residing in Manipur. It is his contention that the only material on which the respondent NCB has based its case to implicate the accused-petitioner is the statement recorded under Section Page No.# 7/18 67 of the NDPS Act. By referring to the decision in Tofan Singh vs. State of Tamil Nadu, reported in [2021] 4 SCC 1, he has submitted that such statement recorded under Section 67, NDPS Act is hit by Section 25, Evidence Act, 1872 and, thus, is not admissible. He has, thus, submitted that, if such statement under Section 67, NDPS Act is kept aside then there is no other incriminating material against the accused-petitioner to keep him in custody. The only other material is seizure of contraband substance from the possession of the co- accused, Md. Abdul Salam, admittedly made in presence of the accused- petitioner who was sitting around the same table in the restaurant, Naga Kitchen. Thus, it is clear that the contraband substances were not in conscious possession of the accused-petitioner. Mr. Kataki has further contended that the investigating authority has sought to press home the case against the accused- petitioner on the concept of joint possession. It is his submission that in the given facts and circumstances, it cannot be a case of joint possession. In support of his submissions, he has referred to the decision in Mohan Lal vs. State of Rajasthan, reported in [2015] 6 SCC 222. It is his further contention that the call record details [CDRs] do not go to indicate that the accused- petitioner had conspired with the other accused persons. That apart, the Certificate given under Section 65B[4][c] of the Evidence Act, 1872 which has been produced to establish link of the accused-petitioner with the other co- accused do not fulfil the conditions of Section 65B of the Evidence Act, 1872. He has, thus, contended that considering the prolonged detention of the accused- petitioner since 04.01.2021; the fact that there is no incriminating material available against the accused-petitioner; and that the trial of the case has not progressed satisfactorily till date, the accused-petitioner is entitled to be released on bail. On the aspect of CDRs, Mr. Kataki has referred to the decision Page No.# 8/18 in State of [NCB] Bengaluru vs. Pallulabid Ahmad Arimutta and another, reported in 2022 SCC OnLine SC 47.
8. Mr. Keyal, learned counsel for the respondent NCB has referred to the materials, which are part of the case records of NDPS Case no. 39/2021, to submit that there are sufficient incriminating materials against the accused- petitioner which do not go to show that the accused-petitioner is not guilty of the offences with which he has been charged. With regard to the CDRs, he has submitted that the accused-petitioner was found to be in constant touch with the other accused persons. On the aspect of the validity of the certificate issued under Section 65B[4][c] of the Evidence Act, 1872, it is submitted by him that the same was issued by the services provider and the question of its admissibility or otherwise is not a matter to be gone into in an application for bail as the same will be gone into during the course of the trial. On the concept of possession, he has submitted that it is the conscious possession which is material, not physical possession. Absence of physical possession of the contraband substance does not go to mean that the accused person was not in conscious possession. He has submitted that one of the elements is knowledge of possession of contraband, which the accused-petitioner had at the time of seizure. The accused-petitioner was an accomplice and the entire transactions of contraband substances were jointly operated by the accused persons including accused-petitioner. In order to bring home his points, Mr. Keyal has relied on the decisions of the Hon'ble Supreme Court of India in Union of India vs. Md. Nawaz Khan, reported in [2021] 10 SCC 100 and Criminal Appeal Nos. 1001-1002 of 2022 [Narcotics Control Bureau vs. Mohit Aggarwal ] decided on 19.07.2022.
Page No.# 9/18
9. I have duly considered the submissions of the learned counsel for the parties and have also perused the materials brought on record including that of NDPS Case no. 39/2021, the scanned copies of which were called for by Order dated 29.11.2021. I have also gone through the decisions cited at the bar by the learned counsel for the parties.
10. It is settled law that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of granting bail.
11. For ready reference, Section 37 of the NDPS Act is quoted hereunder :-
"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 1[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.
Page No.# 10/18 [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."
12. Section 37 of the NDPS Act starts with a non-obstante clause. Keeping the non-obstante clause in mind, a reading of sub-section [2] of Section 37 of the NDPS Act makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section 24 or Section 27A and also offences involving commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section 439, CrPC, it is also subject to the restrictions placed by sub-clause [b] of sub-section [1] of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. [i] the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and [ii] that he is not likely to commit any offence while on bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the Code or any other law in force on the grant of bail. The operative part of Section 37, NDPS Act is in the negative form. Such stringent restrictions have been put on the discretion of the Court for considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the offences. The conditions mentioned in Section 37 of the NDPS Act are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on 'reasonable grounds'.
13. In Satpal Singh vs. State of Punjab, reported in [2018] 13 SCC 813, the Page No.# 11/18 restrictions placed on the discretion to be exercised by the Court while considering an application for bail, in the context of Section 37, NDPS Act have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the Code or any other law in force on the grant of bail.
14. 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 [Collector of Customs, New Delhi vs. Ahmadalieva Nodira, [[2004] 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., [2020] 12 SCC 122 ]. The Court while considering the application for bail with reference to Section 37 of the NDPS Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, quoted above, is sine qua non for granting of bail under the NDPS Act.
15. The Hon'ble Supreme Court of India in Mohit Aggarwal [supra] after Page No.# 12/18 considering the decisions in Ahmadalieva Nodira [supra] and Rajesh [supra], has summed up the legal position regarding the expression 'reasonable grounds' in the following words :-
"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."
16. The Hon'ble Supreme Court in Mohit Aggarwal [supra] has also clarified about the manner of consideration of an application for bail. In the context of Section 37 of the NDPS Act, it has been clarified therein to the effect that at the stage of examining an application for bail involving commercial quantity of a contraband, the Court is not required to record a finding that the accused person is not guilty. At the time of such consideration, 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 the stage is for the limited purpose of releasing the accused-petitioner on bail. Thus, the focus is on the 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 NDPS Act while on bail.
Page No.# 13/18
17. Reverting back to the facts of the case in hand, it is noticed from the materials on record that the team from the NCB after entering into the restaurant Naga Kitchen, found two persons sitting in the corner seats at wall side at the western part of the restaurant. They were identified as Md. Salam and Sri Arjun Sharma i.e. the accused-petitioner and they were found sitting in front of each other. On being asked, Md. Salam opened the black-red bag marked Tycoon kept in his lap and took out one transparent polythene packet containing pinkish colour tablets which were marked either as 'R' or as 'WY'. Those pinkish colour tablets when crushed into powder form and checked through the truck detection kit, gave positive results for Methamphetamine. The quantity, seized from inside the bag, weighed 5.800 KG, which is evidently commercial quantity under the NDPS Act.
18. The concepts of possession and conscious possession have come to be deliberated in Mohan Lal [supra]. It has been observed therein that whether there was conscious possession has to be determined with reference to the factual backdrop. The expression 'possession' is a polymorphous term which assumes different colors in different contexts and it may carry different meanings in contextually different backgrounds. It is, therefore, impossible to work out a completely logical and precise definition of 'possession' uniformly applicable to all situations in the context of all statutes. Ordinarily, the word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the possession to whom physical possession is given holds it subject to that power or control. 'Possession' is meant to be the legal Page No.# 14/18 right to possess. Thus, the decision has observed that the term 'possession' would 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.
18.1. The decision in Md. Nawaz Khan [supra] has referred to the decision in Mohan Lal [supra] and has gone on to observe that a finding of the absence of possession of the contraband on the person of the accused does not absolve one from the scrutiny required under Section 37[1][b][ii] of the NDPS Act.
19. The accused-petitioner in his voluntary statement had disclosed two mobile numbers. According to the respondent NCB, after analysis of the CDRs of the said two mobile numbers, it was found that while one of them was registered in his name the other mobile number [88373 95833] was registered in the name of one Md. Taj Khan. After detailed analysis and investigation in relation to the mobile numbers, the accused-petitioner was found to have provided a wrong mobile number [88373 95833], instead of another mobile number [88373 92833], which was registered in his name. The investigating authority has claimed to have analysed the call details of the accused-petitioner and the other accused persons/suspects. The accused person, Md. Salam was found to have made 13 nos. of calls to the accused-petitioner; 232 nos. of calls to the other accused person, K. Basanta Singh; and 21 nos. of calls to the absconding accused, Md. Ayub Ali. The accused-petitioner was found to have made 23 nos. of calls through his two mobile numbers to the absconding accused, Md. Ayub Ali and 13 nos. of calls to the accused, Md. Salam. The Page No.# 15/18 aforesaid CDRs go to show that there were frequent mobile calls amongst the arrested accused persons/absconding accused person. The frequent mobile calls are clearly suggestive of existence of relationships amongst them.
20. It has been urged on behalf of the accused-petitioner that the Certificate given under Section 65B[4][c] of the Evidence Act, 1872 is not to be relied upon and the CDRs of the accused persons should not be considered, in view of the observations made in Pallulabid Ahmad Arimutta [supra]. But, this Court is not persuaded to accept such submissions. The Certificate under Section 65B[4][c] of the Evidence Act, 1872 is found to have been given by the Service Provider by getting it generated from the Service Provider's computer system with the further certification that the contents conform to the records and are true to knowledge. The Certificate has further stated that the conditions laid down in Section 65B regarding the admissibility of computer output in relation to the information and the computer in question are fully satisfied in all aspects. The issue regarding validity or admissibility or otherwise of the said Certificate is not required to be gone into at the time of consideration of the bail application. It has not been argued that there were no mobile calls amongst the accused persons/absconding accused or that the accused persons were unknown to one another. At the stage of consideration of a bail application qua the parameters laid down in Section 37 of the NDPS Act, this Court is not required to evaluate the evidence in the manner sought for on behalf of the accused-petitioner. It is for the accused-petitioner to establish in the course of the trial that he was not in conversation or contact with the other arrested accused persons/absconding accused through the mobile phones registered in his name which the respondent NCB has relied upon to claim nexus/conspiracy between the accused Page No.# 16/18 person and the other charge-sheeted accused persons/absconding accused person or they were not known to him.
21. From the materials available on record, it has emerged that 7.660 KGs of Methamphetamine tablets, admittedly commercial quantity, were recovered from the possession of the two arrested co-accused persons - Md. Salam and Sri K. Basanta Singh. At the time of search, recovery and seizure of 5.800 KGs of Methamphetamine tablets from the possession of Md. Salam, the accused- petitioner was found in his company and was sitting in front of him around the same table inside a restaurant, Naga Kitchen. The CDRs of the accused persons, as discussed hereinabove, are clearly suggestive of frequent contacts amongst them. Though there was no physical possession of the contraband substances on the person of the accused-petitioner at the time of search, recovery and seizure but by considering the facts and circumstances obtaining in the case in its entirety, this Court is not in a position to hold, at this stage, that the element of conscious possession of the contraband substances on the part of the accused-petitioner was completely absent and is, therefore, not convinced that the accused-petitioner is not guilty of the offence for which he has been charge- sheeted by the Offence Report under reference, even if the statements of the accused persons including that of the accused-petitioner, under Section 67 of the NDPS Act are kept aside from consideration.
22. The previous application of the accused-petitioner for bail, B.A. no. 1085/2021 was considered by this Court on 11.06.2021 on the basis of the materials made available including the case diary, before the Court on that day. Finding presence of incriminating materials including the positive results in the Page No.# 17/18 FSL report, found available in the case diary against the accused-petitioner and considering the rigours of Section 37, NDPS Act, the Court rejected the said application by order dated 11.06.2021. As the present application has been filed after submission of the Offence Report under Section 36A[1][d], NDPS Act by the NCB before the jurisdictional court on 28.06.2021 the Court has considered the same on the basis of the materials placed before it and the case records of NDPS Case no. 39/2021 and having gone through the materials, this Court has not found any good and sufficient ground to depart from the view which was taken earlier, wherein it has been held to the effect that the Court was not persuaded to hold that there are reasonable grounds to reach a finding that the accused petitioner is not guilty of the offences for which he has been implicated. In an application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, it is not the period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act which are required to be considered. It has also been held in Mohit Aggarwal [supra] that the length of the period of custody of the accused person or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to an accused person under Section 37 of the NDPS Act.
23. In view of the above discussion, this Court finds that the application is bereft of merits. Consequently, the same is dismissed.
24. It is, however, made clear that the observations made above are only in respect of consideration of the present petitioner's prayer for bail and none of Page No.# 18/18 the observations made in this order shall have any bearing on the trial of the accused-petitioner.
JUDGE Comparing Assistant