Gujarat High Court
Habibkhan Usmankhan Pathan vs State Of Gujarat on 4 May, 2004
Equivalent citations: (2005)1GLR398
Author: H.K. Rathod
Bench: H.K. Rathod
JUDGMENT H.K. Rathod, J.
1. Heard the learned advocate Mr. A.Y. Pathan on behalf of petitioner. Learned APP Mr. Kodekar appearing on behalf of respondent and learned advocate Mr. Anant Dave appearing on behalf of Narcotics Control Bureau. Against the present petitioner offence registered under Section 8-C, 20-B and 29 of NDPS Act, 1985. Charge sheet filed against the present petitioner on 20/11/2002. After filing the charge sheet on 20/11/2002 the first application for bail filed by the petitioner on 22/3/2004 in NDPS Case No. 1/2003 by Criminal Misc. Application NO. 53/04. The said application rejected by Special Judge, Navsari on 1/4/2004 against which present application is filed by petitioner.
2. Learned advocate Mr. Pathan raised contention before this Court that nothing recovered from the present petitioner. Only statement of accused no. 1 Mohd. Ramzan Kalyari @ Ramzanbhaibhai involved the present petitioner and on that basis the complaint is filed against the petitioner. He submitted that the statement of accused no. 1 Mohd. Ramzan not admissible in evidence and relying on that statement complaint was filed against the petitioner. He disputed that phone no. 431671 at Baroda is not a telephone number of residence of the petitioner. He produced the bill of the said telephone number wherein the name of Abdul Kadar G. Mansuri is mentioned. Therefore, his submission is that prima-facie petitioner was not involved at all in the said transaction and allegations made against the petitioner are false. He also submitted that in past transaction of 27 Kilo Charas delivered at Bharuch to the petitioner is also false because from 26/4/2002 to 30/4/2002 the entire Baroda city was in disturbance and it was not possible for the petitioner to go out of the city as heavy police force was controlling the city. Therefore, that allegation was also false and prima-facie involvement of petitioner is not proved on the face of it that he received delivery at Bharuch of 27 kilogram Charas. He also submitted that long medical history suffering with heart trouble and engyography and for that petitioner was released on temporary bail for a period of one month by the Court. During this one month period he was in good behavior and not jumped the jail. He further emphasized that in present incident petitioner was not at all involved. These are the prima-facie submission with a prayer to grant regular bail in favour of the petitioner. He also submitted that trial is still not commenced on the contrary the matter is transferred to the other Judge. Except that no other submission made by Mr. Pathan and no decision is relied by Mr. Pathan.
3. Learned APP Mr. Kodekar appearing on behalf of the respondent has submitted that offence registered against the petitioner under the provisions of NDPS Act, 1985 and Section 37 which is mandatory is applicable to the facts of this case. He has submitted that in such cases to grant bail is a exception otherwise bail should not be granted to the accused against whom the offence registered under the provisions of NDPS Act, 1985.
4. Learned APP Mr. Kodekar submitted that accused himself has given statement in his own hand writing u/s.67 of NDPS Act, 1985 which is as good a statement u/s. 108 of Custom Act. He also submitted that this statement is admissible in evidence and that statement is produced at page 16 and completed at page 19. Mr. Kodekar also emphasized that in entire statement present petitioner admitted clear involvement in the present transaction and that itself is sufficient at the stage of deciding the bail application to prove prima-facie case against the petitioner. The relevant portion of the statement given by petitioner voluntarily in involving in the present transaction is as under:
"On being asked he further stated that Ramzanbhai called him some 5-6 days back from Kashmir; at that time he was not present at his residence; that when he returned back on 23.5.2002 his wife told him that Ramzanbhai had called; that in the evening of 24.5.2002 Ramzanbhai called him from Bombay and told him that he had brought 9 Kgs of Charas for Habib Khan; that he would deliver the same within 2-3 days; that Ramzanbhai again called him at his residence in the morning of 27th May 2002 and told him that he (Ramzanbhai) had arrived at Navsari and had brought 9 Kgs of Charas for him; Ramzanbhai was talking from Ketan Patel's residence (Navsari); that Ramzanbhai had called him on my residential phone No. 431671 and told me that he was calling with mobile phone of Ketan Patel; that he knew that Ramzanbhai used to keep Charas in the residence of Ketan Patel at Navsari; that Kana's mobile number is 98254-58701, earlier his no. was 9825204482 and his residential phone no. was 46325 that Ketan Patel @ Kana brought Charas to my residence for twice or thrice; that Ketan was taking that Charas from Ramzanbhai; that Ketan used to deliver Charas to me and took money against Charas for Ramzanbhai. He had categorically stated that in the month of Feb' 2002 Ketan gave him 10 Kgs of Charas, which was sent for him by Ramzanbhai; that Ketan brought 8 Kgs of Charas in the month of March 2002; that in the same month Ketan took Rs, 50,000/- from him for Ramzanbhai against Charas supplied to him by Ramzanbhai; that Ramzanbhai had told him on phone that he should pay Charas related money to Ketan. He also stated that also Ramzanbhai himself used to take Charas related money; that recently on 28th April he called Ramzanbhai for Charas and on 29th April 2002 it was decided to take delivery of Charas at Bharuch; that he went Bharuch with his son Fareed in Tata Sierra Car; that after receiving Charas they returned back to Vadodara; that part money for this Charas was sent to Ramzanbhai at Bombay through Angadia Soma bhai Kanchan bhai; that the money was sent on 8th May; that the remaining Rs. 2.5 lakh were given by him to Ramzanbhai on 11.4.2002 at Vadodara Railway Station when Ramzanbhai was going back to Kashmir."
5. He also submitted that at the time when the statement was made by the petitioner u/s.67 no force or any coercive measure adopted by the authority. Therefore, he submitted that unless the requirement of section 37 is strictly established and for satisfying the bail should not be granted.
6. I have considered the submissions made by both the learned advocates. I have perused the orders passed by Special Court at Navsari on 1/4/2004. This petitioner had earlier filed the bail application before this Court being Misc. Criminal Application No. 7611/02 which was ultimately withdrawn by the petitioner on 29/1/2003 before that bail application was submitted to the Special Court being Misc. Criminal Application No. 296/02 which was rejected by the Special Court on merits. Therefore, before the Special Court this two facts are clear. In such circumstances it is the duty of the petitioner to point out to the Court that what are the new circumstances which required to grant bail in comparison to earlier order passed by the Special Court on merits. Successive bail application are not maintainable unless new reasons or grounds canvassed before the Court. In light of this background the Special Court has considered the observations made in earlier bail application No. 296/02 rejected on 19/9/2002 at page 41 paragraph 1, 2 and 3. These three paragraphs are total observation made by the Special Court in earlier occasion when the bail application of the petitioner was rejected on merits. Thereafter in paragraph 4 the Special Court has discussed the only one aspect that charge sheet was filed on 20/11/2002 thereafter any new circumstances is not pointed out by the petitioner before the Special Court and, therefore, considering the only that aspect Special Court has rejected the bail application while, observing the important aspect that the case of petitioner is transferred to Fast Track Court No. 1, charge has been framed against the petitioner and matter is kept for evidence of the prosecution. These are also relevant factor taken into account by Special Court. Therefore, according to my opinion Special Court has not committed any error in rejecting the bail application by order dated 1/4/2004.
7. The petitioner has produced the copy of the NDPS Sessions Case No. 1/02. Paragraph 7 the following statement made by accused no. 1 Ramzanbhai is relevant.
"During the course of search on being asked Ramzanbhai and Ketan Patel reveals that out of that 13 kilogram of Charas, 9 kilogram was supposed to be delivered to Habibbhai and his son Fareedbhai at Vadodara and 4 kilogram was to be given to Salimbhai, the 3rd occupant at the time of search. Salimbhai confirmed the same."
8. This statement of accused no. 1 obtained by the investigation agency strictly may not be admissible in evidence but at the time of considering the bail application it is really a relevant evidence prima-facie proved the involvement of the petitioner while deciding the bail application this Court can go into that statement of facts and to decide the bail application relying upon such statement.
9. The statement of the petitioner Shri Habib Khan was recorded u/s.67 of NDPS Act, 1985 on 28th May, 2002 and another statement was also recorded u/s.67 of the Act after serving another summons upon him. In his statement he stated that his name was Habib Khan Usmankhan Pathan, he was residing at Hatthikhana Khatriwad, Aashiyana Manzil that he had studied upto 5th Standard that he has wife and four children in his family that his family details were given. In entire statement which has been gone through by this Court clearly establish the involvement of the present petitioner in the present incident. Under the NDPS Act, 1985 the authority authorised to call for information during the course of inquiry in connection with contravention of any provisions by this Act. The relevant section 67 is quoted as under:
"Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act-
(a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;
(b) require any person to produce or deliver any document or thing useful or relevant to the enquiry;
(c) examine any person acquainted with the facts and circumstances of the case.
10. The statement of petitioner was recorded under this section while calling the information from the petitioner by the officer which has been authorised to do so. Similarly section 37 is also relevant wherein it is provided that no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose the application for such release and were the public prosecutor opposed 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. The limitation on granting the bail satisfied in Clause (b) Sub Section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973. The relevant Section 37 is quoted as under:
(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 a term of imprisonment of five years or more under this Act 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 oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 ( 2 of 1974), or any other law for the time being in force on granting of bail)
11. The Apex Court has considered spirit of Section 37 of NDPS Act 1985 in case of Union of India v. Ram Samujh & Anr. reported in 1999 (2) GLH 792. The relevant observations made by Apex Court in paragraph 6,7 and 8 are quoted as under:
6. The aforesaid Section is incorporated to achieve the object as mentioned in the Statements of objects and reasons for introducing the Bill No. 125/1988 thus:
"Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it has been felt."
7. It is to be borne in mind that the aforesaid legislative mandate is required to be heard and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable; it causes deleterious effect and deadly impact on the society; they are hazard to the society, even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secretary, Union Territory of Goa JT 1989 (3) SC 507 as under:
"With deep concern, we may point out that the organized activities of the under world and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."
8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,
(i) There are reasonable grounds for believing that accused is not guilty of such offence; and
(ii) that he is not likely to commit while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation, has amended.
12. The Apex Court has considered this aspect in number of cases. This Court has also examined the same question in case of Sohil S. Vohra v. State of Gujarat reported in 2002 (1) GLR page 667. In the said decision this Court has also considered the various decision on the subject. The relevant observations made in paragraph 7 is quoted as under:
7. In light of the above observations made by the Apex Court and considering the facts of the present case, according to my opinion, there is prima facie evidence as discussed by the Additional Sessions Judge, Nadiad in para 3 against the present petitioner, and therefore, at this juncture, contention which has been raised by the learned Advocate Mr. Pande cannot be considered because the same can be considered by the trial Court at the time of trial. However, at the last, Mr. Pande, learned Advocate has relied upon one order passed by the Additional Sessions Judge, Nadiad in favour of Hayatkhan Sardarkhan Pathan passed in Misc. Criminal Application No. 143 of 2001. Considering the order relied by the learned Advocate Mr. Pande, this Court is of the opinion that the order relied is passed by the Sessions Judge and the same cannot be considered to be binding to the High Court and even the same cannot be considered for the purpose of parity. If the order is passed by the concerned Sessions Judge ignoring the mandate of Sec. 37 of the NDPS Act, this Court cannot pass such orders on the ground of parity because prima facie, such order is contrary to the mandate of Sec. 37 of the NDPS Act, and therefor, even this contention as to claiming parity for identical situation in case with said Hayatkhan Sardarkhan Pathan cannot is of no assistance to the present case. Moreover, considering the seriousness of the offence committed by the present petitioner of selling contraband articles to the main accused and especially when this fact has been found from the record, prima facie against the present petitioner and it is necessary to note that if the accused released by the Court and his presence in the Society adversely affect or having adverse impact in the mind of Society and in my opinion, in such peculiar set of facts and circumstances, the present petitioner cannot be enlarged on bail, otherwise lethal activities to the Society carried out by the petitioner will be repeated which ultimately adversely affects the Society as a whole. Moreover, it is also observed that the present application is preferred under Sec. 439 of CrPC 1973 which in fact discretionary powers and while granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or State and similar other considerations. Moreover, this Court has to keep in mind that for the purposes of granting the bail the Legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. However, it is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
13. In background of the present case keeping in mind the statement given by the petitioner u/s.67 and read with relevant provision section 37 the recently Apex Court has examined this issue in case of Customs New Delhi v. Ahmadalieva Nodira reported in 2004 AIR Supreme Court weekly page 1640. The Apex Court has observed that to grant the bail in NDPS matter contemplated in the provision of Section 37 regarding accused being not guilty has to be based on reasonable grounds. Respondent accused found carrying large quantity of Diazepam admitted by the respondent in his confessional statement u/s.67 report of Central Revenue Control Laboratory was brushed aside by High Court without any justifiable reason. Evidentiary value of confessionable statement as well as Laboratory report was totally overlooked by High Court. It is not a case were it could be reasonably believed that respondent was not guilty of alleged offence. The bail which was granted by the High Court is cancelled by the Apex Court. The relevant discussion made by Apex Court in paragraph 6 and 7 are quoted as under:
6. As observed by this Court in Union of India v. Thamisharasi & Ors (JT 1995 (4) Sc 253) clause (b) of sub-section (1) of Section 37 impose limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) and opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. 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. In the case at hand the High Court seems to have completely overlooked the underlying object of the Section 37. It did not take note of the confessionable statement recorded under Section 67 of the Act. Description Serial No. 43 of the Schedule which reads as follows has not been kept in view. In addition, the report of the Central Revenue Control Laboratory was brought to the notice of the High Court. The same was lightly brushed aside without any justifiable reason.
14. Recently in case of Narcotics Control Bureau v. Dilip Pralhad Namade reported in 2004 AIR Supreme Court Weekly page 1757 the same aspect has been examined by Apex Court. In that case also section 37 has been considered and grant of bail the condition and limitations which has been statutorily imposed are cumulative and not alternative. Mere noncompliance of order of Special Judge directing prosecution to furnish copies of documents purported to have been recovered from house of accused applicant. It is not a ground of grant a bail. The expression reasonable ground means something more than prima-facie grounds. This is a clear observation made by the Apex Court in paragraph 9, 10 and 11 are quoted as under:
"9. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. 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 and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessiates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessionable statement recorded under Section 67 of the Act.
10. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere noncompliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.
11. The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied.
15. In view of the above observations made by Apex Court in above referred cases and offence which has been registered against the petitioner wherein the imprisonment is minimum 10 years and therefore, Section 37 squarely applied and it is not the case of the petitioner that Section 37 is not applicable. Therefore, considering this fact and while keeping in mind the statement of the petitioner and statement of accused no. 1 more than prima-facie established the involvement of present petitioner in present and past transactions. Therefore, considering the limitation u.s., 37 of NDPS Act, 1985 and considering the another facts that after the rejection of the bail application on merits by the Special Court no new circumstances, ground or any reasons have been canvassed by the petitioner and established by the petitioner before Special Court as well as this Court and, therefore, according to my opinion the order which has been passed by Special Court, Navsari on 1/4/2004 is quite legal and valid and, therefore, petitioner is not entitled the regular bail and, therefore, this application is rejected.