Madhya Pradesh High Court
Bagdaram vs Union Of India Central Bureau Of ... on 9 February, 2017
Author: R.K.Dubey
Bench: R.K.Dubey
Cr.A.No.825/2016 9.2.2017 Per R.K.Dubey,J.
Shri Ajay Bagadia, learned counsel with Shri Gajendra Singh Chouhan, learned counsel for the appellant Bagdaram.
Shri Manoj Soni, learned counsel for the respondent/CBN. Heard on I.A.No.733/2017, which is an application filed under Section 389(1) of Cr.P.C. for suspension of custodial sentence of appellant Bagadaram.
1. This appeal has been preferred against the judgment dated 13.4.2016 passed by Special Judge (NDPS Act), Neemuch in Special S.T.No.85/1995, whereby learned Judge convicted appellant for the offence under Section 8 read with 18(B) of NDPS Act (hereinafter referred to as the Act of 1985) and sentenced to undergo 20 years RI with fine of Rs.2,00,000/- and in default of payment of fine further two years RI.
2. As per the prosecution story on 15.6.1994, Dy.Commissioner, Narcotics Department, Neemuch received an information from informant that appellant Bagdaram would carry opium from Javad area. After getting the information, Anand Singh Negi along with Vijay Singh and other members of Narcotics Department reached Sukhan to Saroda Road, and waited there. At about 11.30 PM they saw one Jeep and signalled it to stop but the accused persons did not stop their Jeep and started firing at the raiding party. In order to defend themselves the members of raiding also started firing. The incident occurred during night, therefore, taking advantage of the circumstances the accused (appellants Bagadaram, Phusaram and Balwant ) flew away leaving the Jeep behind. While running Cr.A.No.825/2016 two out of the three accused shouted "Bhaag Bagada Bhaag Bagada, hum bhi bhaag rahe hain", which led the raiding team believe that one of the accused was called Bagadaram. On inspection of Jeep, it was found that the Jeep did not have a number plate and it contained 172 Kgs. 700 gms. of opium in 11 bags. The Officers seized that opium and on report Crime No.10/1994 was registered and during investigation it was found that Jeep belonged to one co-accused Phusaram and appellant alongwith other co-accused Phusaram and Balwant Singh were involved in transportation of the said contraband. On this Phusaram and Balwant were arrested. After investigation prosecution filed a complaint before the learned trial Court against Phusaram and Balwant, whereas the present appellant was declared absconding. On the complaint Special Case No.85/1995 was registered. On 21.10.2005 the present appellant was arrested and produced before the Court. The prosecution filed supplementary challan against the present appellant under Section 8 read with Section 18(Kha) and 29 of NDPS Act. The trial Court after framing charge against the appellant tried the matter and vide judgment dated 13.4.2016 found the appellant guilty and convicted him as aforesaid.
3. Learned counsel for the appellant submitted that learned trial Court wrongly found the appellant guilty without considering the fact that at the time of incident three accused persons were present in the Jeep and the learned trial Court vide judgment dated 28.12.1999 acquitted co-accused Phusaram and Balwant. On the allegation that accused persons fired on raiding party another offence under Section 307 IPC was also registered Cr.A.No.825/2016 against all three accused persons but in that case, the learned trial Court acquitted all the three persons from the said offence. The appellant was not arrested from spot. The incident occurred in the night, there is no evidence against the appellant showing that he was present in the Jeep at the time of incident. The trial Court found appellant guilty only on the basis that raiding party heard the voice of co-accused "Bhaag Bagada Bhaag Bagada, hum bhi bhaag rahe hain", and Vijay Singh Meena identified the appellant in Court and confessional statement of accused was recorded by Narcotics Department after sixteen years of the incident, which is against the law. The final hearing of appeal will take time, hence prayed for bail.
4. Learned counsel for the respondent/ Narcotics Department opposed the prayer and submitted that the information of carrying opium was received by the Narcotics Department, which clearly mentioned that appellant was carrying opium and also at the time of incident raiding party heard voice of co-accused "Bhaag Bagada Bhaag Bagada, hum bhi bhaag rahe hain", and during trial I.O., Vijay Singh identified the accused Bagdaram in the Court. Accused also confessed his guilt before the Narcotics Inspector Appellant remained absconded for long time. So there is ample evidence against appellant to connect him with the crime.
5. He further submitted that since the matter falls within commercial quantity, provisions of Section 37 of NDPS Act should be considered and in this regard. He placed reliance on the Apex Court judgment in the case of Ratan Kumar Vishwas Cr.A.No.825/2016 Vs. State of U.P.and another, reported in (2009) 1 SCC (Cri) 546, and Union of India Vs. Ismile in SLP No.1408/2015.
6. Apex Court in the case of Dadu @ Tulsidas V/s State of Maharashtra, reported in AIR 2000 SC 3203 -also held that a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act. Namely (i) there is reasonable ground that the accused is not guilty of the offence for which he was convicted. (ii) he is not likely to committed any offence during the period of suspension of sentence are satisfied . The Hon'ble apex Court in the matter of Union of India vs. Rattan Mallik @ Habul, reported in (2009) 2 SCC 624 held that The limitations on granting of bail specified in clause (b) of subsection (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." It is plain from a bare reading of the non obstante clause in the Section and subsection (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of subsection (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 twin 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. It is manifest that the conditions are Cr.A.No.825/2016 cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. Thus, it is clear that for suspension of sentence in the case of NDPS Act the provisions of S.37 of NDPS Act should be considered.
7. We have gone through the record and argument put forth by the parties. Although other co accused Phusaram and Balwant were acquitted by the trial court but case of applicant is not similar to them. The Information received by Narcotics Department from informant mentioned that appellant Bagda Ram would carry opium from Javad area. Appellant's name along with address is mentioned In the seizure memo prepared by Vijay Singh Meena Inspector Narcotics Department on the spot and it is also mentioned that While running two out of the three accused persons shouted "Bhaag Bagada Bhaag Bagada, hum bhi bhaag rahe hain",. Vijay singh Meena Inspector Narcotics Department member of raiding party identified the applicant in the court. Appellant confessed his guilt in front of Sushil Kumar (PW4). Apart from that appellant remained absconded for a long time. It appears from the record that members of Narcotics Cr.A.No.825/2016 Department went to Appellant's house but he did not find him there while he filled application for anticipatory bail Which shows that appellant knowingly absconded as criminal case was registered against him. First time appellant appeared before Court on 21/10/05, ten years after the incident. He again absconded during trial at the date of judgment on 28/10/13. It also appears from the record that other criminal cases were also registered against him.
8. So in the facts and circumstances of the case, we are not inclined to grant suspension of sentence. Accordingly, I.A.No.733/2017 stands dismissed.
(S.C.Sharma) (Rajeev Kumar Dubey)
Judge Judge
Patil