Allahabad High Court
Rajan Alias Kalibux Singh vs Union Of India on 15 November, 2019
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2083 of 2019 Applicant :- Rajan Alias Kalibux Singh Opposite Party :- Union of India Counsel for Applicant :- Rajan Upadhyay,Ramesh Upadhyaya Counsel for Opposite Party :- Ashish Pandey Hon'ble Siddharth,J.
Counter affidavit, Rejoinder affidavit and Supplementary affidavit filed today are taken on record.
Heard Sri Ramesh Upadhyay, learned Senior Counsel assisted by Sri Rajan Upadhyay, Advocate for the applicant and Sri Ashish Pandey, learned counsel appearing on behalf of Narcotic Control Bureau, Lucknow.
This bail application has been preferred by the accused-applicant,Rajan Alias Kalibux Singh, who is involved in N.C.B. No. 17 of 2018, under Sections- 8/20/27-A/29 N.D.P.S. Act, Police Station- N.C.B., Lucknow, District-Lucknow.
The allegation against the applicant in brief are that the recovery of a truck allegedly loaded with 681.40 kg of ganja was made from Basti by the team of N.C.B., Lucknow. On 28.07.2018 that truck was intercepted by team of N.C.B. at Basti on the information that contraband is being carried in the aforesaid truck. The driver of the truck did not stopped the truck on being signalled and tried to crush Manish Kumar Singh, the Assistant of the team of N.C.B. and leaving the vehicle the driver, Sudhakar Mishra, eloped from the spot. From the truck recovery of 681.40 kg ofganjawas made. First information report under Section 307 I.P.C. was lodged against the driver of the vehicle, Sudhakar Mishra. Subsequently, the applicant was arrested from Amausi Airport, Lucknow on 28.09.2018 while he was preparing to board a flight for Hyderabad. The applicant has been connected with this case on account of his confessional statement under Section 67 of N.D.P.S Act wherein he has admitted his complicity in the crime and has admitted that contraband in the alleged truck seized belonged to him. Theapplicant has been implicated on the basis of the call recordings from two mobile phones allegedly recovered from his possession. From the aforesaid mobile phones the applicant is stated to have made calls to the driver of the vehicle named, Arun Kumar Dixit.
Learned Senior Counsel for the applicant has submitted that the applicant was arrested on 29.08.2018 and recovery memo was prepared. In theaforesaid recovery memo two mobile phones are shown to have been recovered from the possession ofthe applicant. The aforesaid mobile phones do not belong to the applicant and there is no evidence collected as yet to prove that the aforesaid mobile phones were issued in the name of the applicant.
He has further submitted that the statement recorded under Section 67 of the N.D.P.S. Act was not voluntary and the burden of proof that the statement was recorded voluntarily is on the prosecution and not on the applicant. He has reliedupon the judgment of theApex Court in the case ofUnion of India vs.Bal Mukund and others, 2009 (12) SCC 161,paragraphs 24 and 25 of the aforesaid judgment which are quoted hereinbelow :-
"24. The situation in which such purported statements have been made cannot also be lost sight of. The purported raid was conducted early in the morning. A large number of police officers including high ranking officers were present. Search and seizure had been effected. According to the prosecution, each of the respondent Nos. 1 and 2 were found to be in possession of 10 Kg. of narcotics. No information was sought for from them. It is doubtful whether they had made such statements on the road itself. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down underSection 67of the Act.
25. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken."
He has further submitted that the ApexCourt in the case ofMohammed Fasrin vs. State represented by the Intelligence Officer (2019) 8 SCC 811,has held that merely on the basis of confessional statement and there are being no corroborative evidence the accused-applicant cannot be punished for the offence under the N.D.P.S. Act.The relevant extracts cited are, "We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rightsbefore recording the confession. No such material has been brought on the record of this case. It is also well settledthat a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborativeevidence."
Further reliance in this regard has been made by the judgment Surinder Kumar Khanna vs. Intelligence Officer, Directorate Revenue Intelligence has relied upon in the judgment in paragraph nos. 10, 11 and 14 which are quoted below:-
"10. Even if we are to proceed on the premise that such statement underSection 67of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 1987 6 which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in theNDPS Actmaking such confession admissible against a co-accused.
Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999 accused. The matter therefore has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co- accused as against other accused."
11. In Kashmira Singh v. State of Madhya Pradesh, this Court relied upon the decision of the Privy Council inBhuboni Sahu v. The Kingand laid down as under:
"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King. "Itdoes not indeed come within the definition of" 'evidence' contained in section 3of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."
They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?
(1952) SCR 526 (1949) 76 Indian Appeal 147 at 155 In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttywhere he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan10 "the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30may be thrown into the scale as an additional reason for believing that evidence."
Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentenceFor example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.
Finally, reliance has been placed onthe judgment of Apex Court in the case ofTufan Singh vs. State of Tamil Nadu,paragraph nos. 32 and 33 quotedherein below:-
"32. No doubt, Abdul Rashid & Noor Aga were the cases under theCustoms Act. But the reasons for holding custom officer as police officer would have significant bearing even when we consider the issue in the context ofNDPS Actas well. It would be more so when the schemes & purport of the two enactments are kept in mind.NDPS Actis purely penal in nature. In contradistinction, as far as theCustoms Actand theCentral Excise Actare concerned, their dominant object is to protect revenue of the State and penal provisions to punish the person found offending those laws are secondary in nature.
33. Further, theNDPS Actis a complete code relating to Narcotic Substances, and dealing with the offences and the procedure to be followed for the detection of the offences as well as for the prosecution and the punishment of the accused. The provisions are penal provisions which can, in certain cases, deprive a person of his liberty for a minimum period of 10 years and can also result in sentences which can extend upto 20 years or even death sentence under certain circumstances. The provisions therefore have to be strictly construed and the safeguards provided therein have to be scrupulously and honestly followed. [See Baldev Singh (1997) 1 SCC 416 Para 28;Union of India vs. Bal Mukund(2009) 12 SCC 161 Para 26, 27 & 28;Balbir Singh vs. State of Haryana(1987) 1 SCC 533]."
He has further pointed out that the Apex Court has referred the issue to larger Bench for decision whether the Investigating Officer under N.D.P.S. Act would qualify as Police Officer or not. The related issue whether the statement recorded by the Investigating Officer under Section 67 of the N.D.P.S. Act can be treated as confessional statement or not, even if the officer is not treated as Police Officer.
Counsel for the applicant has stressed that in the aforesaid case the accused was granted bail by the Apex Court even after his conviction by trial court as well as High Court.
Learned counsel for the N.C.B. has submitted that the applicant had not approached this courtwith clear hands. He did notdisclosed his criminalhistory while filing bail application. He has filed detailed counteraffidavit wherein it has been stated in paragraph 16that the applicant has criminalhistory of two cases apart from present case. One case is Case Crime No. 14 of 2018, under Section 8/20/27(A), 29, 60(3) of N.D.P.S. Act in which 591.2 kg of ganja was recovered.There is another case ,beingCase Crime No. 283 of 2016,under Sections 452, 504 and 506 IPC, Police Station- Maharajganj, District- Raibareilly.
He has further submitted that the applicant has been implicated in this case not only on the ground of his confessional statement under Section 67 of N.D.P.S rather there is corroborative evidence in the form of call details regarding the calls made by the applicant to the co-accused from two mobile phones which were recovered from his possession on 29.09.2018. There is no reason on record to implicate the applicant falsely in this case and merely an allegation that the applicant has been falsely implicated will not absolve the applicant of the crime wherein he has been found to be involved. He has further submitted that the brother of the applicant, Shiv PratapSingh, is involved in NCB Case No. 1 of 2018 wherein he was implicated forrecovery of ganja from his possession. The judgments placed before this court were also placedbefore the court below and after considering them the court below has rejected the bail application of the applicant. He hasfurthersubmitted that the argument that statement ofthe applicant was recorded underduress under Section 67 of the NDPS Act has not been agitated before the court below or before any Officer of NCB and therefore the argumentbefore this court is without any substance. The law is that if an accused is subjected to coercive recording of statement under Section 67 of NDPS Act he has required to raised hisobjection at the earliestopportunitybefore the competent authority or court and in the present casethere is no such evidence and therefore the reliance on the case laws inthis regard is not well-founded and not based on any factual foundation.
Learned counsel for the N.C.B. has opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at pre-trial stage who is involved in supplying contraband, therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will again indulge in similar activity. The "reasonable grounds" mentioned in Section 37(1)(b)(ii) of NDPS Act mean something more thanprima facieground. It implies substantial probable causes for believing that accused is not guilty of the offence charged and points to existence of such facts and circumstances which are sufficient to hold that accused is not guilty.
Counsel for the applicant has rejoined the arguments and has submitted that the driver of the truck was earlier implicated inthis case was Sudhakar Mishra. FIR was lodged under Section 307 IPC against him. Now inthe complaint thedriver, who has been named is Arun Kumar Dixit. He has further submitted that before the trial court only one prosecution witness has appeared and for the last ten dates he has not turned up to complete his statement. A supplementary affidavit tothis effect has been filed today annexing therewith the letter of the counsel of the applicant in court below who has informed this fact by a letter. It hasfurther been submittedthat the applicant is languishing in jail since 28.09.2018 and regarding the other case under the N.D.P.S. Act in the criminal history of the applicant he received notice of the case only when he was incarcerated in jail in this case. He had no prior information of the implication in the othercase being Case No. 14 of 2014. He was never arrested inthis case prior to the implication in this case. The notice was sent to the applicant on 31.07.2018 when his truck was recovered on 28.07.2018 and it appears that only after the present implication that the applicant has been implicated in the other case.
After considering the rival submission this court is of the view that regarding the confessional statement under Section 67 of NDPS Act at this stage itcannot be said whether the corroborativeevidence against the applicant is reliable or not. The statement has been recorded and even if the argument of the counsel for the NCB is accepted that no objection whatsoever was raised by the applicant at any stage that the statement was recorded underduress, it will not make any difference. It would be for the trial court to examine whether the confessional statement stands corroborated or not. The applicant is in jail since 28.09.2018 as per applicant's counsel or 29.09.2018 as per the case of NCB and as yet not a single witness has been examined. P.W-1, is not appearing before trial court for last ten dates and therefore it cannot be expected that the trial would be concluded in near future.
However the Apex Court in the Case ofUnion of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798has held that the court while considering the application for bail with reference to Section 37 of the 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 records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Considering the facts of the case and keeping in mind the arguments advanced on behalf of the parties, the ratio of the Apex Court's judgment in the case ofUnion of India vs. Shiv Shankar Keshari, (2007) 7 SCC 798,larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, 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/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let applicant,Rajan Alias Kalibux Singh,be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(ii) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
Trial court will make alleffortsto conclude the trial against the applicant within a period of one year.
Order Date :- 15.11.2019/ Rohit