Bombay High Court
Manjeet Singh Chilotra vs Intelligence Officer Directorate Of ... on 6 December, 2022
Author: M. S. Karnik
Bench: M. S. Karnik
46.BA 3062-21.doc
Darshan Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3062 OF 2021
RANJIT LAXMAN TANPURE ..APPLICANT
VS.
INTELLIGENCE OFFICER AND ANR. ..RESPONDENT
WITH
BAIL APPLICATION NO. 3917 OF 2021
MANJEET SINGH CHILOTRA ..APPLICANT
VS.
INTELLIGENCE OFFICER DIRECTORATE
OF REVENUE INTELLIGENCE MUMBAI
ZONAL UNIT AND ANR. ..RESPONDENT
------------
Mr. A.P. Mundargi, Senior Advocate i/b. Mr. Mandar Goswami
a/w Ms. Megha Bajoria for the applicant in BA 3917/2021.
Mr. Mandar Goswami a/w Ms. Megha Bajoria for the
applicant in BA 3062/2021
Mr. N.B. Patil, APP for State.
Ms. Rujuta Thakker a/w Mr. R. Mujumdar and Ms. Mansi
Naik for the respondent-DRI in both applications.
------------
CORAM : M. S. KARNIK, J.
RESERVED ON : DECEMBER 1, 2022
PRONOUNCED ON : DECEMBER 6, 2022
P.C. :
1. These are applications for bail filed by the applicant -
Ranjit Laxman Tanpure in Bail Application No. 3062 of 2021
and applicant - Manjeet Singh Chilotra in Bail Application
No. 3917 of 2021, in connection with DRI F. No.
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DRI/MZU/C/INT-117/2016, registered with DRI Mumbai, for
the offence punishable under sections 8(c), 22(C), 23(C),
27(A) and 29 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (hereafter 'NDPS Act', for short). The
applicants filed these bail applications on the ground of long
incarceration in custody and as the possibility of the trial
commencing any time soon and concluding in the near
future is remote. The applications are decided by a
common order.
2. The applicant - Ranjit Laxman Tanpure came to be
arrested on 07/04/2017 by the officers of the DRI and since
then he is in judicial custody. It is the case of the
prosecution that Ranjit was arrested pursuant to the
recording of the statement of the co-accused namely
Manjeet. In all 10 accused are implicated. Since the date
of registration of First Information Report, 7 accused have
been granted bail.
3. On the basis of the information/intelligence dated
21/11/2016 was conveyed by the officer of the Directorate
of Revenue Intelligence Ludhiana to DRI Mumbai that a
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huge quantity of the Psychotropic Substances viz.
Alprazolm, Zoldipam, Diazepam etc. in addition to Tramadol,
soma etc. covered under the provisions of NDPS Act, are
illegally exported by one of the applicant - Manjeet, a
resident of Mira Road, Mumbai. Based on the said
information, the residential and office cum godown
premises of applicant - Manjeet was searched from
21/11/2016 to 23/11/2016 and a total quantity of
16,72,238 tablets containing Psychotropic Substance was
seized. The value of the seized tablets was assessed at Rs.
55,55,567/-. The statements of the arrested accused came
to be recorded under section 67 of the NDPS Act. The
accused narrated their role and admitted their guilt. The
said statements were retracted later on. The statement of
applicant - Ranjit was recorded on 06/07/2017 and the
applicant was arrested on 07/04/2017. The charge-sheet
was filed before the Special Court, Thane on 18/05/2017.
4. Learned senior advocate Shri Mundargi submitted that
the present bail application is being pressed only on the
ground of long incarceration. According to him, assuming a
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huge quantity is found from the possession of the Manjeet,
it needs to be considered that he is in custody for more
than 5 years and 6 months and there is no possibility of the
trial commencing. The applicant - Manjeet deserves to be
released on bail on the touchstone of Article 21 of the
Constitution of India. So far as the applicant - Ranjit, i.e.
original accused no. 8, is concerned, nothing was found
from his possession and he is claiming parity with accused
no. 10 - Rajaram who has been released on bail. Mr.
Mundargi submitted that the applicant - Manjeet cannot be
incarcerated for an indefinite period. Although the charge
has been framed on 12/07/2019, there is no progress in the
trial, nor any of the witnesses examined. According to him,
the prosecution is relying upon several statements of the
witnesses and the list includes about 130 witnesses. The
trial is not delayed at the instance of the applicant.
According to him, prolonging the custody for an indefinite
period is violative of Article 21 of the Constitution of India.
Learned senior advocate Mr. Mundargi relied upon following
decisions in support of the submissions :-
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i) Supreme Court Legal Aid Committee
Representing Undertrial Prisoners Vs. Union of
India and Another.1
ii) Ugochukwu Duke Vs. State of Goa, thr. I.O.,
Anjuna Police Station and Another2
iii) Sajid Yusuf Electricwalla Vs. The State of
Maharashtra3
iv) Atul Aggarwal Vs. Directorate of Revenue
Intelligence4
v) Pravid Dilip Waghela Vs. State of
Maharashtra5
vi) Rohit Nejkar Vs. Intelligence Officer and
Anr.6
vii) Gopal Krishna Patra @ Gopal Rusma Vs.
Union of India7
viii) Anil Kumar Vs State8
1(1995) 4 SCC 695
22022 SCC OnLine Bom 370
3Bail Application No. 3076 of 2021 (Bombay High Court)
4Bail Application No. 2477 of 2021 (Delhi High Court)
5Bail Application No. 523 of 2022 (Bombay High Court)
6Bail Application No. 3823 of 2021 (Bombay High Court)
7Criminal Appeal No. 1169 of 2022 (Supreme Court of India)
82022 SCC OnLine Del 778
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ix) Baba Fakruddin Sheikh @ Fakru Vs. The
State (NCT of Delhi)9
x) Ejike Jonas Orji Vs. Narcotics Control
Bureau10
xi) Sachin Atmaram Vartak Vs. The State of
Maharashtra11
xii) Abdul Hannan Rizwani Vs. State of
Maharashtra12
5. Learned counsel for DRI, Ms. Rujuta Thakkar, opposed
the application. It is submitted that an unusually large
quantity of contraband was seized from the applicants. It is
submitted that in respect of the matters covered by the
provisions of NDPS Act, if a huge quantity of contraband is
seized, a balance has to be struck as even the interest of
the society has to be taken into consideration. The right of
the accused for speedy trial cannot outweigh the larger
public interest considering the serious nature of the offence.
Pointing out the materials on record, she submits that the
9Special Leave to Appeal (Crl.) No(s). 13 of 2022 (Supreme Court of India)
10Bail Application No. 997 of 2022 (Delhi High Court)
11Bail Application No. 430 of 2021 (Bombay High Court)
12Bail Application No. 877 of 2022 (Bombay High Court)
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applicant - Manjeet was a part of a well organized syndicate
who along with other accused was systematically exporting
the contraband of huge quantities. She submits that
propensity of the applicants' involvement in these nefarious
activities is writ large from the documents on record and
therefore, the mere ground of long incarceration is not
enough to seek bail. She submits that though the list of
witnesses indicated is around 130, however, on instructions
it is stated that not more than 30 to 40 witnesses will be
examined. She submits that in such case, the trial could be
expedited. She invited my attention to the provisions of
section 436A of the Code of Criminal Procedure, 1973
(hereafter 'Cr.P.C.', for short) to submit that even the law
mandates that the person who has undergone detention for
a period extending up to one-half of the maximum period of
imprisonment specified for that offence, he shall be released
by the Court on his personal bond; in her submission,
meaning thereby that as the maximum punishment
prescribed for the offence being 20 years under the NDPS
Act, the applicants can apply for bail on the ground of
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prolonged incarceration only after the applicants have
undergone minimum 10 years of imprisonment. It is
further submitted that even in respect of bail on the ground
of long incarceration, the applicants cannot avoid the rigors
of section 37 of the NDPS Act. In her submission, the
materials on record are adequate to demonstrate that the
applicants are guilty of such offence. Learned counsel relied
upon the following decisions in support of her
submissions :-
I) Sapan Mondal Vs. Narcotics Control Bureau13
ii) Anuj Kumar Upadhyay Vs. State NCT of
Delhi14
iii) Union of India (NCB) ETC. Vs. Khalil Uddin
ETC15
6. Heard. So far as the applicant - Ranjit in BA No. 3062
of 2021 is concerned, the materials on record indicate that
the search conducted by the officers of Ludhiana on
27/04/2017 revealed that the laptop containing images of
13C.R.M. No. 7715 of 2021 (Calcutta High Court)
14Bail Application No. 1150 of 2022 (Delhi High Court)
15Criminal Appeal No(s). 1841-1842/2022 (Supreme Court of India)
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Alprazolam tablets and other medicines, prepared by M/s
Kelwin Healthcare, Haridwar by its firm M/s Kelvin Pharma
was found. Ranjit was not found in conscious possession of
the tablets. According to DRI, there was enough material to
link the main accused Manjeet with Ranjit. So far the
applicant - Manjeet in BA No. 3917 of 2021 is concerned, a
large quantity of tablets was found in his possession.
7. Without multiplying the authorities relied by the
learned counsel, on which reliance is placed, at the outset I
may refer to the decision of this Court in Rohit Nejkar
(supra) who is a co-accused no. 10 in this C.R. Rohit has
since been released on bail on the ground of long
incarceration as he was in custody for the period of 5 years.
In paragraph no. 31, as regards the progress of the trial
this Court observed thus :-
"31. The charge has been framed in the
present case on 12th July, 2019. Thereafter, no
witnesses have been examined. This Court had
called for the report from the trial Court about
the status of the trial. The report dated 21st
April, 2022 submitted to this Court, wherein it
is stated that the charge was framed on 12th
July, 2019 vide Exhibit 134. On account of lock-
down, the applications filed by the accused etc.
the trial could not be proceeded. The learned
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counsel for Respondents submitted on
instructions that, although there is list of about
130 witnesses, the prosecution may examine
about 35 to 40 witnesses. Assuming that the
prosecution intends to examine such number of
witnesses, even there is not clear as to when
the trial would come to an end. There is
nothing on record to indicate that the applicant
had delayed the trial. He is in custody for a
period of about 5 years. There was no recovery
of Psychotropic Substance from Applicant,
hence, case for grant of bail is made out."
The position remains the same even today except for a brief
spell of 6 months when this Court had stayed further
proceedings in the trial at the instance of a co-accused.
There is nothing to indicate that the trial is protracted at the
instance of the applicants. In fact, the applicants have
nothing to gain by protracting the trial as they are in
custody. Even after the stay was vacated, there has been
no progress in the trial. As indicated earlier, though the
prosecution has relied upon a list of 130 witnesses, learned
counsel for the respondent submitted that the prosecution
intends to examine 30 to 40 witnesses. This by itself is a
large number. The resultant position is that the trial is not
likely to be concluded any time in the near future.
8. Having observed thus, let me examine the rival
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contentions, as regards the grant of bail on the ground of
long incarceration. It is not in dispute that the applicants
are in custody for more than 5 years and 6 months. So far
the contention of the learned counsel for DRI that the rigors
of section 37 of the NDPS Act will apply even if the bail is
sought on the ground of prolonged custody, this aspect has
been dealt with by this Court in Rohit Nejkar (supra) in
paragraph nos. 23 to 29. Paragraph nos. 23 to 29 which
has a bearing on the controversy read thus :-
"23. Although it is not necessary to go deep into the
restrictions like Section 37 of NDPS Act, Section
20(8) of TADA Act and Section21(4) of MCOC act,
since the right to speedy trial is supreme, it is
required to be noted that above provisions carrying
embargo for grant of bail under TADA Act, NDPS Act
and MCOC Act are pari materia. It is true there is
distinction qua UAPA act. However, that should not
be hurdle in granting bail on the ground of
infringement of Article 21 of Constitution of India. No
decision has been brought to notice of the Court
wherein bail has been refused by Supreme Court, in
spite of accused being in prolonged custody on the
basis of such restrictions. It is also pertinent to refer
to extent to which such rigours can be interpreted
while granting bail. In the case of Ranjitsingh
Sharma Vs. State of Maharashtra and another 2005-
ALL.MR (Cri)-1538-(SC), it is observed in quoted
paragraphs as follows :
"28.Section 21 provides for modified
application of certain provisions of the Code of
Criminal Procedure,sub-section (4) whereof is as
under :
(4)Notwithstanding anything contained in the
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Code, no person accused of an offence punishable
under this Act shall, if in custody, be released on bail
or on his own bond, unless -
(a)the Public Prosecutor has been given an
opportunity to oppose the application of such
release;and
(b)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."
45. The Act is deterrent in nature. It provides
fordeterrent punishment. It envisages three to ten
years of imprisonment and may extend to life
imprisonment. Death penalty can also be imposed if
somebody commits a murder. Similarly, fines ranging
between three to ten lakhs can be imposed.
46. Presumption of innocence is a human
right (SeeNarendra Singh and another Vs. State of
MP(2004)10-SCC-699:2004 ALL MR (Cri)2557
(SC).Para31). Article 21 in view of its expansive
meaning not only protects life and liberty but also
envisages a fair procedure. Liberty of a person
should not ordinarily be interfered with unless there
exist cogent grounds therefor. Sub-section (4) of
Section 21 must be interpreted keeping in view the
aforementioned salutary principles. Giving an
opportunity to the public prosecutor to oppose an
application for release of an accused appears to be
reasonable restriction but Clause (b) of sub-section
(4) of Section 21 must be given a proper meaning.
47. Does this statute require that before a
person is released on bail, the Court, albeit prima
facie, must come to the conclusion that he is not
guilty of such offence ? Is it necessary for the Court
to record such a finding ? Would there be any
machinery available to the Court to ascertain that
once the accused is enlarged on bail, he would not
commit any offence whatsoever ?
48. Such findings are required to be recorded
only for the purpose of arriving at an objective
finding on the basis of materials on records only for
grant of bail and for no other purpose.
49. We are furthermore of the opinion that
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the restrictions on the power of the Court to grant
bail should not be pushed too far. If the Court,
having regard to the materials brought on record, is
satisfied that in all probability he may not be
ultimately convicted, an order granting bail may be
passed. The satisfaction of the Court as regards his
likelihood of not committing an offence while on bail
must be construed to mean an offence under the Act
and not any offence whatsoever be it a minor or
major offence. If such an expansive meaning is
given, even likelihood of commission of an offence
under Section 279 of the Indian Penal Code may
debar the Court from releasing the accused on bail. A
statute, it is trite, should not be interpreted in such a
manner as would lead to absurdity. What would
further be necessary on the part of the Court is to
see the culpability of the accused and his
involvement in the commission of an organized crime
either directly or indirectly. The Court at the time of
considering the application for grant of bail shall
consider the question from the angle as to whether
he was possessed of the requisite mens rea. Every
little omission or commission, negligence or
dereliction may not lead to a possibility of his having
culpability in the matter which is not the sine qua
non for attracting the provisions of MCOCA. A person
in a given situation may not do that which he ought
to have done. The Court may in a situation of this
nature keep in mind broad principles of law that
some acts of omission and commission on the part of
a public servant may attract disciplinary proceedings
but may not attract a penal provision.
55. The wording of Section 21(4), in our
opinion,does not lead to the conclusion that the
Court must arrive at a positive finding that the
applicant for bail has not committed an offence under
the Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding that
the applicant has not committed such an offence. In
such an event, it will be impossible for the
prosecution to obtain a judgment of conviction of the
applicant. Such cannot be the intention of the
Legislature. Section 21(4) of MCOCA, therefore, must
be construed reasonably. It must be so construed
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that the Court is able to maintain a delicate balance
between a judgment of acquittal and conviction and
an order granting bail much before commencement
of trial. Similarly, the Court will be required to record
a finding as to the possibility of his committing a
crime after grant of bail. However, such an offence in
future must be an offence under the Act and not any
other offence. Since it is difficult to predict the future
conduct of an accused, the court must necessarily
consider this aspect of the matter having regard to
the antecedents of the accused, his propensities and
the nature and manner in which he is alleged to have
committed the offence."
24. Thus, embargo under the provisions of Special
Acts shall not be an impediment in grant of bail by
this Court on the ground of incarceration of accused
in custody for a long time, more particularly in the
light of various decisions of Supreme Court.
25. The Division Bench in a recent decision
delivered in Criminal Appeal No.389 of 2020 in the
case of NIA Vs. Areeb Ejaz Majeed(supra) has dealt
with a similar issue. The respondent therein was
prosecuted by NIA under the provisions of UAPA Act.
He was arrested on 29th November 2014. He had
preferred applications for bail which were rejected.
Subsequently he was granted bail by NIA Court.
While passing the order granting bail the Special
Court proceeded on two aspects, firstly that the pace
of the trial was slow and there was likelihood that
there was long time for examining the remaining
witnesses. The NIA Court concluded that since law
laid down by Hon'ble Supreme Court in Shaheen
Welfare Association (supra) apply in favour of
accused, the bail application should be granted on
the aspect of the matter. The other aspect which was
considered by the NIA Court was that the witnesses
were examined before the said Court and prima facie
case is not made out. The Court, therefore, held that
even taking recourse to Section 43-D(5) of NIA Act,
the accused is entitled to be released on bail. Other
decisions of the Supreme Court were placed for
consideration before the Court. The accused was in
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custody for a period of six years. About 107
witnesses were remained to be examined. The NIA
Court considered the decisions in the case of Union
of India Vs. K.A.Najeeb (supra) and Shaheen Welfare
Association (supra). Bail was granted on the ground
that accused is in jail for six years and also on the
basis of evidence adduced before Trial Court.
Previous applications were rejected on merits and
only on the basis of evidence which was recorded
subsequently the NIA Court came to the conclusion
with regards to the prima facie case against accused
when the accusations had rendered twice by
rejecting previous applications for bail. The Division
Bench accepted the contention of appellant that in
view of previous rejection of bail application, on the
basis of evidence recorded by the Court, the Court
could not have granted bail on merits. The Division
Bench also observed that case of the accused on
second aspect of the matter appears to be on firm
footing. In paragraph 29 it is observed as follows :
"29. There is no dispute about the fact that
right to fair and speedy trial is a right recognized
under Article 21 of the Constitution of India. The
Hon'ble Supreme Court and various High Courts
including this High Court have consistently held that
under trials cannot be allowed to languish for years
together in jail while the trial proceeds at the snail's
pace. If ultimately the accused are found to be not
guilty, the number of years, months and days spent
by such accused as under trials in jail, can never be
given back to them and this is certainly a violation of
their valuable right under Article 21 of the
Constitution of India. Therefore, right to speedy trial
has been recognized and reaffirmed consistently by
the judgments of the superior courts."
In paragraph 31 the Division Bench has
observed that :
"In cases where the accused are facing charges
under special Acts like UAPA Act, parameters for
grant of bail are more stringent as a consequence of
which the under trials in such cases remain in
custody while the trials are pending. This is because
they are accused in serious and heinous offences and
their rights are required to be balanced with the
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rights of the society and citizens at large. The Courts
then are required to perform a balancing act, so as
to ensure that a golden mean is reached between the
rights of the individual and those of the society at
large."
In paragraph 32 the Court then referred to the
decision of Supreme Court in the case of Shaheen
Welfare Association(supra) wherein it was held that
long time taken by courts in disposal of the cases
would justify invoking Article 21 of Constitution of
India to issue directions to release the undertrials on
bail. By analyzing the facts of the case and
considering the fact that accused was in custody for
a substantial period of time, it was held that it
cannot be said that the NIA Court committed an
error in granting bail to the accused. The Court did
not distinguish the order granting bail on the basis
that the effect of rigours under Section 43-D(5) of
UAPA Act is lesser than other Special Laws.
26. In the case of Union of India Vs. K.A.Najeeb
(supra), the Supreme Court has considered the
stringent conditions for grant of bail under Section
43-D(5) of UAPA Act. In the said case the accused
was in custody for the offences under UAPA Act. In
the case of The NIA Vs. Areeb Ejaz Majeed (supra),
the accused was tried for the offences under UAPA
Act. In both the cases, the accused was granted bail
by High Court and NIA Court on the ground that
accused was in custody without trial for long period
of time, which affected his right under Article 21 of
Constitution of India. Both the orders were confirmed
by the Appellate Courts.
27. In the case of Supreme Court Legal Aid
Committee (supra),the Court had directed proviso for
grant of bail that benefit of direction in clause (ii) and
(iii) shall not be available to those persons who are
in the opinion of the Trial Court for the reasons to be
stated in writing likely to tamper with evidence or
influence the prosecution witnesses. In the case of
Shaheen Welfare Association(supra), it was
cautioned that bail can be granted unless Court
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comes to conclusion that their antecedents are such
that releasing them may be harmful to the lives of
complainant, family members of complainant or
witnesses. In the case of Hussainara Khatoon, it was
observed that sympathy for undertrials who are in
jail for long terms on account of pendency of cases,
has to be balanced having regard to impact of crime.
The Division Bench of this Court, in the case of NIA
Vs. Areeb Majeed has observed that in cases under
Special Acts, parameters for grant of bail are more
stringent and they remain in custody. The courts are
required to perform balancing act, so as to reach a
golden mean in between the rights of an individual
and those of society at large. The court has to look
into those aspects while granting bail even on the
ground that the undertrial is in prolonged custody.
28. This Court in the case of Sachin Vartak V/s.
State of Maharashtra considered various decisions
and granted bail on the ground that the Applicant
was in custody for about five years. He was
prosecuted for offence under NDPS Act. In another
order passed by this Court in the case of Sajid
Electricwalla (supra) bail was granted to accused,
facing prosecution under NDPS Act on the ground
that he was in custody for about seven years.
29.The Supreme Court in the case of Tapan Das V/s.
Union of India decided on 7th October, 2021 [SLP
(CRI) No.5617/2021]granted bail to accused
considering the fact that accused was in custody
around 4 years and there is no likelihood of
completion of trial in the near future. In the case of
Dadu alias Tulsidas V/s. State of Maharashtra (2000)
5 SCC 437. The apex Court was considering the
constitutional validity of Section 32-A of NDPS Act.
The Court held that said provision is unconstitutional
to the extent that it takes away right of the Court to
suspend sentence of a person, who are convicted.
The apex Court however held that, the rigors of
Section 37 would be required to be considered while
suspending sentence and grant of bail. In the case of
Man SinghV/s. Union of India 2009 Cr. LJ 3042, the
Apex Court referred to discussion in the case of Dadu
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Alias Tulsidas (supra) and considering the fact that
appellant therein had undergone sentence of about
Seven years, suspended sentence and granted bail.
Although these decisions are relating to suspension
of sentence and grant of bail, reference is made
since inspite of rigor of Section 37of NDPS Act, apex
Court granted relief. In the case of Union of India
V/s. Rattan Mallik (supra) the apex Court had
observed that,while granting bail, restriction under
Section 37 of the NDPS Act cannot be ignored. The
bail granted by High Court was sought to be
cancelled. The impugned order of bail was not
granted by High Court on the ground that accused
was in prolonged custody but on merits."
9. In paragraph no. 30 of the decision in Rohit Nejkar
(supra), His Lordship observed that this Court has to
perform a balancing act. The sympathy for undertrials who
are in custody has to be balanced with gravity/magnitude of
crime, likelihood of threat to witnesses. The analysis may
be based on facts of each case. Taking a cue from these
observations, learned counsel for the DRI submitted that an
unusually large quantity of contraband seized from the
applicant is a good ground to deny bail to the applicant,
even if the bail is applied for on the ground of prolonged
custody, having regard to the gravity/magnitude of the
crime. Once this Court has discussed in detail the
parameters for grant of bail in the context of prolonged
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custody after referring to the decisions of the Hon'ble
Supreme Court, there is really no reason for me to dilate
any further on this issue.
10. However, a brief reference to some of the decisions
relied upon would be useful. In the case of Ugochukwu
Duke (supra) the learned Single Judge of this Court granted
bail to the accused who was found to have dealt in
commercial quantity for which minimum sentence that
could be imposed is imprisonment for the period of 10
years. Relying on the law laid down in the case of
Supreme Court Legal Aid Committee Representing
Undertrial Prisoners Vs. Union of India and Another
(supra), this Court granted bail after taking into
consideration that the applicant therein was behind bars for
the period which was more than the minimum sentence
which can be imposed upon him. It is pertinent to note that
in Ugochukwu Duke (supra) this Court in paragraph no. 8
has observed thus :-
"8. Even if proceedings in the trial, according to
the learned Public prosecutor, are towards the fag
end, there cannot be any dispute about the fact that
the applicant has remained behind bars for more
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than six and half years and the minimum sentence
that can be imposed even upon his conviction is 10
years. Hence, applying the directions in the aforesaid
judgment of the Supreme Court, the applicant has
made out a case for grant of bail, subject to
conditions."
11. In the case of Sajid Yusuf Electricwalla (supra) the
applicant was involved in manufacturing the drug (MD), 100
Kilograms of of drug (MD) which was in the process of
manufacturing was seized. The applicant was in custody for
over 7 years and 6 months. It was observed that as the
minimum sentence of imprisonment for the offence
punishable is 10 years, on this ground alone (custody of 7
years and 6 months) the applicant was granted bail.
12. In Atul Aggarwal Vs. Directorate of Revenue
Intelligence (supra) the Delhi High Court was concerned
with a case where the contraband recovered was to the
tune of 151.980 Kilograms of Ketamine which is commercial
quantity. In paragraph nos. 11 and 12 it is observed thus :-
"11. In the instant case, the quantity of contraband
recovered is 151.980 kgs of ketamine, which is a
commercial quantity. In Gurdev Singh v. State of
Punjab, (2021) 6 SCC 558, the Supreme Court had
discussed the deleterious impact of narcotic drugs on
society, and how the menace of drug
addiction did not only have the ability of destroying
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the life of just one individual, but how it could
destroy the lives of generations to come. Therefore,
the consequences of dealing of drugs and drug abuse
can be experienced across the board, from causing
economic issues to societal disintegration. The
purpose of enacting the NDPS Act was to curb this
menace, and this purpose must be borne in mind
while considering the grant of bail pertaining to the
NDPS Act.
12. However, it is also pertinent to note that the
Petitioner herein was arrested on 20.07.2012. It has
been nine years since he has been in custody. While
remaining conscious of the fact that the gambit of
drug trafficking must be deterred with stringent
punishments, and that those who indulge in
such nefarious activities do not deserve any
sympathy, Courts must also not ignore the plight of
the undertrials who remain languishing in jails as
their trials are delayed with no end in sight.
Deprivation of personal liberty without the assurance
of speedy trial contravenes the principles enshrined
in our Constitution under Article 21, and is,
therefore, unconstitutional to its very core. In such
cases, in absence of the pronouncement of
conviction, the process itself becomes the
punishment. Nine years cannot be said to be a short
period of time."
13. The Delhi High Court in Baba Fakruddin Sheikh @
Fakru Vs. The State vide its order dated 25/03/2021 in
Bail Application No. 334 of 2021, denied the bail to the
applicant on finding that the commercial quantity of the
contraband has been recovered and section 37 of the NDPS
Act would be attracted. The Supreme Court, however, by
its order dated 16/02/2022 in Baba Fakruddin Sheikh @
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Fakru Vs. The State (NCT of Delhi) (supra) granted bail
obsereving thus :-
"Taking into consideration the fact that the
petitioner has suffered incarceration for a period
of 7 years and 6 months and more particularly
the fact there is no possibility of the trial
concluding in the near future, we deem it to be a
fit case to grant him bail".
14. In the light of the law laid down, prolonged
incarceration with no possibility of the trial concluding would
entitle the applicants herein for bail. I also do not find any
substance in the contention of the learned counsel for the
respondent that the applicant has to undergo a minimum 10
years of detention to claim benefit of bail on the ground of
long incarceration, which in my opinion proceeds on an
incorrect reading of section 436A of Cr.P.C. Section 436A
deals with the situation where a maximum period of
imprisonment is specified for the offence. In any case
section 436A has been inserted in the Cr.P.C. by the Act of
25 of 2005 with effect from 23/06/2006 providing for a
maximum period for which an undertrial prisoner can be
detained.
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15. I may usefully refer to the observations of Their
Lordships in Sanawar Ali vs. Union of India 16 that the
directives of the Apex Court relating to bail and section
436A of Cr.P.C. operate in the same field and are
supplementary to one another. To read one in derogative of
the other would amount to restricting the right of
undertrials to bail in case of inordinate delay in trial and
would frustrate the very spirit of the aforesaid law. Having
gone through the records, I do not find any special feature
relating to the contributory role of the applicants in the
inordinate delay in trial. The Apex Court in Thana Singh
Vs. Central Bureau of Narcotics17 issued various
directions to ensure speedy trials. Thana Singh (supra)
quoted with approval the directives in Supreme Court
legal Aid Commiittee (supra).
16. As observed earlier there is hardly any progress in the
trial. The continued incarceration of the applicants cannot
be by way of a punishment. In my opinion, by imposing
stringent conditions, the applicants deserve to be released
16 C.R.M 9314 of 2020 (Calcutta High Court)
17 (2013) 2 SCC 590
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on bail. Hence the following order.
ORDER
i) The applicants - Ranjit Laxman Tanpure and Manjeet Singh Chilotra are directed to be released on bail, in connection with DRI F. No. DRI/MZU/C/INT-117/2016, registered with DRI Mumbai on executing P.R. Bond in the sum of Rs.1,00,000/- each with one or more sureties in the like amount.
ii) The applicant - Ranjit Laxman Tanpure shall report to the DRI Mumbai, once in a month on first Monday of the every month between 11.00 am to 1.00 pm till further orders.
iii) The applicant - Manjeet Singh Chilotra shall report to the DRI Mumbai twice in a month on the first and fifteenth day of every month between 11.00 a.m. to 1.00 p.m. till further orders.
iv) The applicants shall attend trial Court regularly on the date of hearing of the case unless exempted by the Court for some reason.
v) The applicant - Manjeet Singh Chilotra shall not leave Mumbai without prior permission of the Trial Court.
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vi) The applicant - Ranjit Laxman Tanpure shall not leave India without prior permission of the Trial Court.
vii) The applicants shall deposit their passports with the trial Court. In the event they do not have passport, they shall file an affidavit before the trial Court while executing bail bond stating that they do not have passport/s.
viii) The applicants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.
ix) On being released on bail, the applicants shall furnish their contact number and current residential address to the DRI Mumbai and shall keep them updated, if there is any change.
17. Bail applications are disposed of in the above terms. \ (M. S. KARNIK, J.) 25/25 ::: Uploaded on - 06/12/2022 ::: Downloaded on - 07/12/2022 18:17:19 :::