Andhra HC (Pre-Telangana)
G.Sandeep Reddy vs The Intelligence Officer Narcotic ... on 27 August, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
THE HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.9498 of 2014
27-08-2014.
G.SANDEEP REDDY..PETITIONER/ACCUSED No.3
THE INTELLIGENCE OFFICER NARCOTIC CONTROL BUREAU (NCB) SUB-ZONE,
HYDERABAD..RESPONDENT/COMPLAINANT
Counsel for the petitioner: Sri N. Narasimha Rao
Counsel.
Counsel for the respondent: Sri V. Gopala Krishna Gokhale
(for NCB)
<Gist:
>Head Note:
? Cases referred
1. 2009 (12) SCC 161
2. 2001 Crl J 3183
3. 2013 Law Suit (SC) 941
4. 1966 (3) SCC 698
5. 1964 (2) SCR 752
6. 1962 (3) SCR 338
7. 2008 (9) scale 681
8. 1990 (2) SCC 409
9. 2008 (4) SCC 668
10. 2007 (7) SCC 798
11. 1989 (1) SCR 180
12. 2000 Crl 619
13. 2009 (2) SCC 624
14. 2007 (7) SCC 798
15. 2009(1) SCC 482
THE HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.9498 of 2014
ORDER:
The Criminal Petition is filed under Sections 437 and 439 Cr.P.C by the petitioner/A-3 (among other accused, it appears involved in NCB File No.VIII/48/1/1/2014-NCB Subzone, Hyderabad. The nature of the offence referred is Section 8 (c) read with Sections 22, 23, 25-A, 28, 29 and 30 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act). It is on apprehension of the accused and seizure of some contraband, which it appears the controlled substance allegedly meant for manufacturing a psychotropic substance by name methamphetamine.
2. The contention of the learned counsel for the petitioner is that he is innocent and falsely implicated and the alleged seized substance is not a narcotic drug or psychotropic substance to make him liable for any accusation, hence to grant bail. The Learned Special Public Prosecutor opposed the bail. Heard both sides and perused the material on record.
3. The learned Sessions Judge/designated Court in Crl.M.P.No.1469 of 2014 dismissed the bail application of the petitioner/A3 on 08.07.2014, observing at para-7 that there is a conspiracy among all the accused including the petitioner/A3 to prepare methamphetamine, a psychotropic substance, which attracts Section 29 of the NDPS Act and the statement of A1 to A3 recorded under Section 67 of NDPS Act goes to show that the accused were contemplating to manufacture methamphetamine psychotropic substance. It is further observing at para-10 with reference to para-6 that even if Section 37 of NDPS Act is not applicable, the petitioner cannot be enlarged on bail from the nature of offence and role played by him including in financing Rs.10 lakhs in manufacturing methamphetamine psychotropic substance, hence, dismissed.
4. Now the points that arise for consideration are:
1. Whether the statement under Section 67 of NDPS Act or otherwise disclosure in the panchanama to the revenue intelligence officials in the crime detection are hit by Section 25 of the Indian Evidence Act or otherwise from the discrepancies stated by the learned counsel for the petitioner/A3 in alleged disclousre statement and manner of recording and the time metnioned and from the academics of the accused from nothing to show of the contents in Engligh to his understanding of the Langugae, not admissiable and cannot be considered, whether to be given credence and if so, whether the petitioner/A3 is entitled to the bail sought for and whether bar under Section 37 of NDPS Act has no application ?
2. To what result?
5. Point No.1:
In answering the point No.1 from panchanama facts what contained and the statement under Section 67 of the Act facts what contained, not in dispute, it is apt to refer the relevant provisions of the NDPS Act, Evidence Act and IPC also. As per Section 2 sub section (vii-d) of Narcotic Drugs and Psychotropic Substances Act, 1985- controlled substance means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provisions of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;
6. Here the prosecution case is that it is to use in manufacturing of a Psychotropic substance of commercial quantity as detailed in the panchanama and other record;
7. As per panchanama, there are facts disclosing privy by virtue of common concert to the possession of the said controlled substance for the manufacturing of a psychotropic substance undisputedly without license. Now the accused disputes the very possession, much less conscious possession.
8. The panchanama, prima facieshow for the limited purpose of bail application that there is conscious possession as stated under Section 54 of NDPS Act. There is burden on the accused, once the Court may presume from the conscious possession of illicit articles from such conscious possession for the commission of offence. Section 35 of NDPS Act speaks on mensrea that Court shall presume mensrea on the part of the accused and it is for the accused to explain and rebut no guilty state of mind. Nothing more is required for the purpose of bail application, but for what is meant by preparation and what is meant by conspiracy.
9. NDPS Act not defined conspiracy any where and thus it can be taken note of the punishment provided under Section 120-B IPC from its definition under Section 120-A IPC.
10. So far as the preparation is concerned as per Section 2 (20) of the Act even for preparing of psychotropic substance, it may be a combination of controlled substance as well as non- controlled substance. Even what is the combination required is as per the description contained in the alleged disclosure statement of accused. Psychotropic substance defined by Section 2 sub-section 23 means any substance, natural or synthetic or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. So the preparation with combination of controlled substance and non controlled substance may include psychotropic substance from the above definitions.
11. Section 9 Sub-section 1(a) of NDPS Act speaks the power of Central Government to permit, control and regulate the controlled substance which says, where the Central Government is of the opinion that having regard to the use of non controlled substance in the production or manufacturing of any narcotic drug or psychotropic substance, it is necessary or expedient to do for the public interest, it may by order provide in regulating, prohibiting, production, manufacture, supply and distribution thereto and trade and commerce therein.
12. As per Section 25-A of the Act which co-relates to Section 9 (1) (a) of the Act; the punishment provided for such contravention by Section 9(1) (a) supra is upto 10 years a maximum and also liable to fine which may extend to Rs.1,00,000/-.
13. Preparation is an offence as per Section 30 of the Act and conspiracy and abatement are also the offences as per Section 29 and attempt is an offence as per Section 28 of NDPS Act. These three sections not only defined but also speak the consequences of the acts being punishable. As per Section 28 of the Act whether there is any attempt to manufacture the controlled substances or not from the so called disclosure statements of the accused is concerned; but for to consider primary as to there is conspiracy, if not even there is any preparation without even conspiracy, as Section 30 of the Act speaks preparation is an offence and not a preparation outcome of conspiracy and thereby, the punishment provided for preparation is up to half of the maximum punishment provided; whereas, for the conspiracy which is independent, the punishment provided is that of a substantive offence. The Psychotropic substance is concerned for reading Section 29 we have to read Section 28 read with schedule for a, b and c provisos of Section 22.
14. From this background coming to Section 30, preparation to mean if any person makes preparation to do or omits to do anything which constitutes an offence punishable under any of the provisions of [Section 19, 24 and 27-A and for the offences involving commercial quantity of any narcotic drug or psychotropic substance and from the circumstances of the case, it may be reasonably inferred that he was determined to carry out his intention to commit the offence, but had been prevented by circumstances independent of his will, he shall be punishable with rigorous imprisonment for a term which shall not be less than one-half of the minimum term (if any), but which may extend to one half of the maximum term, of imprisonment with which he would have been punishable in the event of his having committed such offence, and also with fine which shall not be less than one-half of the minimum amount (if any), of fine with which he would have been punishable but, which may extend to one-half of the maximum amount of fine with which he would have ordinarily (that is to say in the absence of special reasons) been punishable. Here the definition of preparation for the above speaks that preparation to do or omit to do anything, which constitutes an offence punishable supra and from the circumstances of the case which may reasonably inferred with he is determined to carry out the intention to do, but had been prevented by circumstances independent of his will.
15. Here it is to be seen what was the intention in determining to carry out commission of offence to say there is a preparation. Leave it as it is, the scope of Section 30 of the Act is clear there from, in seeing of Section 29 of the Act which speaks about abatement and criminal conspiracy or either of the same. As per sub section 1 with which we are concerned, who ever abates or is party to criminal conspiracy to commit an offence punishable under this chapter, where such offence to commit or commit any consequences of such abatement or in pursuance of such criminal conspiracy, and not withstanding anything contained under Section 116 IPC, be punishable with a punishment provided for the offence.
16. Here we are not concerned with abatement is there or not, but for there is conspiracy or not. Section 120-A IPC defined criminal conspiracy that mean when two or more persons agree to do, or cause to be done:
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy;
provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
17. From this, even the agreement is not an illegal act by itself to some act which is not even illegal; if done by illegal means, it is a conspiracy. Further, the agreement to commit an offence shall not amount to conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. From the sum and substance of the sections supra, so far as any conspiracy is there or not concerned; a reading of panchanama discloses a prima facie accusation in this regard and any discussion by dwelling into the matter will prejudice the rights of the parties in trial and thereby, it is not proper for this Court in considering the merits of the matter for the limited purpose of the bail. The expression of the Apex Court placed reliance of the Union of India vs. Bal Mukund - Section 30 has no application because a reading of Section 30 by giving a close thought speaks two aspects and the Court it appears dealt with regarding the second part where the accused persons are not parties to the joint trial. Here there is a common crime against five or more persons under investigation and covered by one final report/ charge sheet. However, the Apex Court categorically observed that Section 30 attracts even to the narcotic drugs and psychotropic substances offences, even there is information by disclosure from so called offender secured within the scope of Section 67 of NDPS Act.
18. Coming to the other proposition concerned, no doubt a single judge expression of our High Court earlier in Shahid Khan vs. Director of Revenue Intelligence observation at para No.48 referring to Section 67 of NDPS Act and Section 108 of Customs Act is that wording of Section 67 of NDPS act is different than the wording used in Section 108 of Customs Act. In Section 67 of NDPS Act, it empowers to call for information from any persons whereas Section 108 of the Customs Act empowers a Gazette officer to summon any persons when considers necessary either to give evidence or to produce document or anything in the enquiry. It appears that, the legislature has given quasi judicial powers to the gazetted officers as referred under Section 42 of the said Act. Therefore, this Court is of the considered view that the statements of the accused cannot be used as evidence for prosecution in the form of confession. In fact referring to this expression, the Apex Court in Tofan Singh vs. State of Tamilnadu in Criminal Appeal No.152 of 2013, dated 08.10.013 observed also by referring to the constitutional bench expression in Batku Jyoti Sawat Vs. State of Mysore which accepted the view in Rajaram Jaiswal vs State of Bihar and State of Punjab Vs. Barkat Ram on the scope of the statements by accused persons made to Department of Revenue Intelligence are not prohibited under Section 25 of Evidence Act or that it comes within the purview of Section 24 of Evidence Act (referred to and also other expressions and the co-relation between Customs Act and NDPS provisions and particularly at para Nos.40 and 41 of the judgment that the AP High Court distinction has some substance and also of the Apex Court in Noor Aga vs. State of Punjab and thereby the matter referred on the correctness of the expressions in Rajkumar Karwal vs. Union of India followed in Kanhaiyalal vs. Union of India (which relied on Batku Jyoti Sawat (supra) to a larger bench to be constituted. The reference merely shows pending is no way constitute any observations in the reference as a precedent against the enforceability of the existing and undisturbed expression of the Supreme Court in Rajkumar Karwal (supra) and Kanhailal (supra). Having regard to the above nothing is shown even from such contentions raised by referring to the above expressions of the Apex Court by learned counsel for petitioner that the constitutional bench judgment which rules the land under Article 141 of the constitution of India, is no longer in subsistence by virtue of stay or suspension of its operation pending the reference made.
19. Now coming to the query raised by the learned counsel for the petitioner/A3 of nothing to show that the material is controlled substance within the meaning of Section 2 sub section (vii-d) of NDPS Act. The notification of the Central Government published in the Gazette of India No.726 (S.O.834(E)) of the Ministry of Finance (Department of Revenue), dated 26.03.2013 in the table given as item8 i.e., 1-phenyl-2 propanone is a controlled substance.
20. Coming to the other contention that the petitioner/A3 studied only 10th class failed and he does not understand English. In fact, the disclosure statement, dated 23.03.2014 was shown as at 5.00 p.m., (17.00 hrs), there is nothing shown that he retracted the disclosure statement because he does not know English. Now, as alleged or otherwise of it is outcome of involuntariness and by use of force or pressure, leave about even such event after its seizing, or otherwise admissibility under Sections 28 to 30 of Evidence Act. No more discussion is required in this regard, as any discussion may prejudice the rights of either prosecution or the accused in defence, but for to say, whether there is a prima facie accusation or not for the purpose of bail application. Apart from it in the event of application of the bar under Section 37 of NDPS Act from the wording of Section 37 (2)(b), as to there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commmit any offence while on bail.
21. Coming to the other contention raised by referring the so-called apprehension or interception and the disclosure statements by A1 to A3, including the petitioner/A3, at 5.00 p.m., on the fateful day and the so-called disclosure further lead to discovery of some more facts of the other component of the manufacturing of the other controlled substance for the contraband to prepare the narcoting substance. There are two so-called panchanamas also mentioned as at 5.00 p.m., it is shown a typed material not even manuscript or handwriting much less by the accused on his own hand and much argument is raised by the learned counsel for the accused by noticing the discrepancies in this regard in saying no credence can be attached to the so-called disclousre statement said to have been made by the accused much less voluntarily either under Section 67 of NDPS Act or udner Section 27 or 24 much less 28 to 30 of the Evidence Act. Fundamentally, this Court is not conducting a trial and not suppose to conduct a roaming enquiry, more particualrly, so far as the bail applciaiton is concerned, the Court cannot even ignore besides presumptions under Section 54 and 35 of NDPS Act, the general presumption under Section 114 of the Evience Act, of all official acts or judicial acts are duly performed in the absence of showing the prima facie material to disbelieve the so-called disclosure and in fact the material on record from one panchanama to the other shows that the first panchanama disclosure contends that lead to the discovery of the second discovery panchanama discloses to say that there is a little credence in saying that there is prima facie accusation which giving to the suggestion of the reasonable grounds for believing is not guilty of such offence and that he is not likely to commit any offence while on bail concerned. No doubt, in the two Judge Bench expression of the Apex Court reported in Union of India vs. Shri Shiv Shankar Kesari which expression is referring to some expressions of the Apex Court and other High Courts from para-7 to 11 observed that word reasonable ground expressed in Section 37(1)(b)(ii) means somthing more than prima facie grounds and it connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that accused is not guilty of the offence charged and it would be unreasonable to expect an exact definition of the word reasonable, as reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances, in which the reasoning, which built up the old scholastic logic sounds now like the jingling of a Childs toy as held in Municipal Corporation of Delhi V. Jagan Nath Ashok Kumar and another and thus the word reasonable is the trying to count what is not number and measure what is not space. It is only the relative term and the facts of the particular controversy must be considered before the question as to what constitute reasonable can be determined. It is not meant to be expedient or convenient but certainly something more than that. It describes in accordance with reason, and a particular act is reasonable or not depends on the circumstances in a given situation. Section 37 of NDPS Act is not called upon to record the finding of not guilty; it is only for a 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 record its satisfaction about the existence of such grounds.
22. Even from this, what are the discrepancies pointed out whether sufficient to say that there are reasonable grounds for believing that accused is not guilty, leave about the second component also required to be satisfied of that he is not likely to commit any other offence. There is nothing shown as requirements of the mandatory compliance like Section 50 or 42 of NDPS Act. Apart from that, no personal search involved for application of Section 50 of NDPS Act having shown of the person who seized or recorded the statement of disclosure under Section 67 or elicited the information as that under Section 67 of NDPS Act or under Section 27 of Evidence Act or who heard the disclosure so called voluntarily made under Section 24 of Evidence Act much less if otherwise is not within fold of 24, if admitted, if at all, under Sections 28 to 30 of Evidence Act, that such required information disclosed or elicited not contemplated by any law to be reduced into writing immediately thereby to say any time gap or irregularity in mention in the absence of considering for the bail application, caused prejudice of the substantie rights of the accused or his defence; cannot be held as reaosnable gorunds for believing that acused is ultimately not being found guilty of the offence. When such is the case as concluded supra from Section 37 of NDPS Act applies there are no grounds for the Court to consider for entitlement of bail. Needless to say these observations are confined to the limited purpose of consideration of the bail application within the scope of Section 37(1)(b) of NDPS Act and no way influence the court so far as the merits of the factual matrix of the matter concerned in particular during trial.
23. Once that is the case, the disclosure statement made by accused including under Section 67 of NDPS Act to the revenue intelligence department, the prosecuting agency is not shown at par with statement to regular police and thus admissible within the purview of Section 24 of Evidence Act and neither hit by Section 25 of Evidence Act totally or even to the extent other than the discovery of the facts admissible under Section 27 of Evidence Act being exception to Section 25 of Evidence Act vide Rajkumar Karwal followed in Kanhailal (supra). When such is the case and the same is admissible and relevant, it is not just for this Court in the bail application to ignore the same or to answer the contentions raised of the so called statements or part of the same, as disclosures tantamounts to confession by accused persons, rule of prudence requires corroboration to it to rely within the prerogative in appreciation of evidence during trial as some expressions say confession can be a sole basis and some expression say rule of prudence require corroboration to it. Further, the observation of the learned Sessions Judge of Section 37 has no application is not correct, when it speaks the bar for the commercial quantity offences, leave about other specified sections referred therein and when conspiracy, preparation and attempt are the offences provided for punishment, when these offences shown involved for commercial quantity, the bar applies, but for if at all to say other than for conspiracy provided with punishment at par with substantive offence in the sentencing policy, from lesser sentence to preparation and attempt not outcome of conspiracy, to give such interpretation beneficial to the accused from the two views possible as per the cordial principle in the criminal jurisprudence. This conclusion can be taken support from the expression of the Apex Court in Dadu Alias Tulsidas Vs. State of Maharashtra while holding Section 32-A NDPS Act imposing bar against Section 389 Cr.P.C for bail and suspension of sentence pending appeal is even unconstitutional; (which is also pending in reference from conflicting expressions in this regard) so far as parameters for bail pending appeal concerned, the norms of Section 37 NDPS Act must be followed for no other procedure of the twin requirements of the satisfaction of the Court mandatory being sina qua non of 1) there are reasonable grounds for holding that the accused is not guilty of such offence and 2) that he is not likely to commit any offence while on bail vide Union of India vs. Rattan Malik ; Union of India vs. Shri Shiv Shankar Kesari and Ratan Kumar Viswas vs. State of UP .
Accordingly, point No.1 is answered.
24. Point No.2:
Having regard to the above and in the result this Court is not inclined to grant bail sought for by the petitioner-A3, from the propensity of crime and in the larger interest of society and hence the bail application is dismissed.
__________________________ Dr. B.SIVA SANKARA RAO J, Date: 27.08.2014