The present bail application has been filed by the applicant in F.I.R. No. 1 of 2018, under Sections 8/20 of Narcotic Drugs and Psychotropic Substances Act, Police Station D.R.I., District Lucknow, with the prayer to enlarge him on bail.
As per prosecution case, on 10th January, 2018, at 10:30 a.m., an information was received to Sunil Kumar Mathur, Intelligence Officer, D.R.I., Lucknow that one Truck bearing No. HR 38 P 0938, loaded with cannabis (ganja), coming from Orissa, is going to Orai via Jhansi. On this information, a team of officials of D.R.I. moved towards Orai at 12:30 p.m. Near Hussariya Chauraha, Lucknow, the team interacted with two persons, namely, Pavnesh Kumar and Sanjay Kumar and requested them for witnessing the incident, on which, they conceded and sat in the vehicle of the team. The team of D.R.I. reached Orai at 6:15 p.m. and as per the strategy, they reached at Ait Toll Plaza and started keeping vigil on the vehicles. At 8:40 p.m., one containerised truck having Registration No. HR 38 P 0938, was seen coming from Jhansi, which was intercepted by the team and the driver of the truck was directed to stop the vehicle. On being interrogated, the person, who was on the driving seat, told his name as Shahid s/o Anwar r/o Naiyovali Milak, Tehsil Bilari, P.S. Mainather, District Moradabad. Another person, who was sitting on the adjoining seat of the truck, introduced himself as Deepak Rana s/o Amber Lal Rana r/o village Savangi, Tehsil Varsivanee, District Balaghat, M.P. Though both the persons, initially, denied about any contraband, but later on, they accepted that cannabis is loaded in the truck for being transported to Orai from Jaipur, Orissa. The D.R.I. team informed them about the provisions of Section 50 of the NDPS Act, on which they requested that due to life threat from the owner of the contraband, the search may be conducted at some safe place. Considering their request, the vehicle along with both the accused, was brought to the regional office at Lucknow on 11th January, 2018 at 10:00 a.m., where the search was conducted.
Thereafter, recovery memo was prepared by the officials, according to which, Rs.730/- in cash along with the Samsung mobile and driving licence was recovered from the possession of truck driver-Shahid. From the possession of Deepak Rana, his voter ID, one SBI debit card bearing no. 6070940442437280 in the name of Rukmani Singh, two PNB debit cards bearing nos. 6070930014633671 and 6070930014633945, payment receipt of Rs.8,000/- dated 18th October, 2017 in the account of Sakun Bai Rana (Account No. 614400NC00000528), one mobile and Rs.666/- cash were recovered. During the course of search of the vehicle, the documents recovered were the registration certificate, fitness certificate, permit of goods and insurance of the vehicle along with check report of vehicle of Government of Andhra, Authorisation certificate of National Permit, Pollution Control Certificate, Pan Card of Harswaroop (owner of the vehicle), receipt of deposit dated 28.03.2016 of Rs.20,500/- in the account of Harswaroop in Federal Bank, Moradabad Branch, carbon copy of Bill No. 0092, G.R.No. 815 dated 18th November, 2017 of Road Lines Pvt. Ltd., Om Vihar, Delhi as well as slips of the vehicle in question of Toll Plazas upto Ait Toll Plaza dated 10.01.2018 at 20:41:24 p.m. In the vehicle, 210 crates were also found and behind the said crates, 18 plastic bags were found, in all of which, cannabis was filled. The net weight of recovered contraband was found to be 237.340 kg. Thereafter, sample was taken in the presence of the witnesses, officials of the D.R.I. as well as the accused persons, namely, Shahid and Deepak Rana.
As per prosecution case, on being interrogated, Shahid informed that the contraband was loaded in the vehicle at Jaipur, Orissa in the presence of three persons, namely, Dileep Kumar Yadav @ Dinesh r/o village Kukargaon, District Jashpur, Chhatisgarh, Tokeshwar Banjara r/o village Lakhra Mod, r/o village Kukargaon, District Jashpur, Chhatisgarh and Harswaroop s/o Lakhan Singh r/o village Mainather, District Moradabad (owner of the vehicle). Thereafter, Harswaroop also came with Shahid in the vehicle upto Balaghat, where he left the vehicle and told Shahid to deliver the contraband along with Deepak Rana to Birjoo (Mobile no. 7355966160) and Rahul @ Sonal (Mobile no. 7007162941) at Orai, Jalaun, who after making a call, will take the delivery. Shahid also stated that he was told that after delivery, he would be paid Rs.10,000/-. Deepak Rana, during interrogation, stated that Dileep Kumar having Mobile no. 9516120030 told him that the contraband would be delivered at Orai and after delivery, Rs.20,000/- would be paid to him. He further stated that owner-Harswaroop and driver-Shahid met him at Balaghat where Harswaroop left the truck and he accompanied the driver. He also stated that the contraband was to be supplied at Orai to Birjoo, Mobile no. 7355966160 and Rahul @ Sonal, Mobile no. 7007162941 and he was informed that they would pay Rs.20,000/- to him.
Heard learned counsel for the applicant and Shri Dipak Seth, learned Senior Counsel assisted by Shri Digvijay Nath Dubey for the respondent-D.R.I.
The submissions of learned counsel for the applicant are that the applicant, who is the owner of the truck and is innocent person, has been falsely implicated in the case without any evidence, except the confessional statements. Applicant has no previous criminal history and is in jail since 24.01.2018.
Learned counsel for the applicant submitted that the involvement of applicant is alleged merely on the basis of confessional statement of Shahid and Deepak Rana. He further submitted that thereafter, a notice was given by the D.R.I. to the applicant, whereby, he was called on 24th January, 2018 for his statement and as per the content of the said notice, applicant appeared in the office of D.R.I. on the date fixed and his statement was recorded. Thereafter, applicant was taken into custody and since then he is in jail. He also submitted that on the basis of statement of Shahid and Deepak Rana, investigation in Case Crime No. 1 of 2018 (supra) was conducted and thereafter complaint was filed on 6th July, 2018 in the court of Special Judge, NDPS Act, Lucknow by Directorate of Revenue Intelligence, Lucknow, which was registered as Criminal Case No. 1190 of 2018 and the applicant has been arrayed as accused therein as respondent no. 3.
Learned counsel for the applicant next submitted that in the confessional statement of Deepak Rana, he admitted that applicant deposited Rs.10,000/- in his account for taking fuel for truck, but Investigating Officer had not made any effort to search the location of the Bank, where the aforesaid amount was deposited.
Learned counsel for the applicant submitted that the applicant, who does not have any criminal antecedent, after receiving the notice, himself appeared before the officers of the D.R.I. He further submitted that no alleged offence of NDPS Act can be said to be made out against the applicant, as after going through the entire contents of complaint, supplementary complaint and the evidences enclosed, no involvement of the applicant, directly or indirectly, can be said to be found, except the confessional statements. Learned counsel for the applicant also submitted that statement recorded under Section 67 of the NDPS Act cannot be treated as evidence. Relying on the larger Bench judgment of the Hon'ble Apex Court in the case of Toofan Singh Vs. State of Tamilnadu, 2020 SCC Online SC 882, he submitted that officers, who are vested with the powers under Section 53 of the NDPS Act, are the police officers within the meaning of Section 25 of the Evidence Act, as a result of which, any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act and cannot be taken into account in order to convict the accused under the provisions of NDPS Act. Learned counsel for the applicant also submitted that the larger Bench has also held that statement under Section 67 of the NDPS Act cannot be used as an evidence in the trial of an offence under the NDPS Act.
Learned counsel for the applicant also submitted that the Agency had deliberately not placed the call detail report to establish the location of the applicant. Learned counsel for the applicant also submitted that it is admitted in para 79 and 80 of the complaint that the alleged witnesses of the recovery, namely, Sanjay Kumar And Pavnesh Kumar are not traceable, however, they are the witnesses of respondent-authorities. It is lastly submitted that even till today, charge has not been framed by the trial court and the case is being adjourned. In such circumstances, applicant is entitled for bail.
Learned counsel for the D.R.I., on the other hand, submitted that the aforesaid truck was intercepted by the D.R.I. Thereafter, Shahid (driver) and Deepak Rana (companion) were interrogated and in their statement, the details of the mobile number as well as involvement of other accused came into the notice of the officers. Thereafter, investigation was conducted and on the basis of statement of other co-accused persons and call detail reports, applicant was also found involved in the crime. Learned counsel for the D.R.I. further submitted that the contraband was loaded in the vehicle on 7th January, 2018 and the aforesaid truck was taken into custody at Orai and thereafter it was brought to Lucknow. He further submitted that the judgment of Toofan Singh (supra) is of no help to the applicant, as the minority view of the aforesaid judgment also dealt that in Constitution Bench judgment of Hon'ble Apex Court in the case of Badku Joti Savant Vs State of Mysore, (1966) 3 SCR 698, the officers of Central Excise are not the police officers within the meaning of Section 25 of the Evidence Act. Same view has also been taken in the case of Romesh Chandra Mehta Vs. State of West Bengal, AIR 1970 SC 940 and Illias Vs. Collector of Customs, Madras, AIR 1970 SC 1065. He further submitted that in the aforesaid judgment, it was not dealt that how exactly the powers of Investigating Officer conducting an investigation of an offence under the NDPS Act are different from those under the Central Excise Officers, Custom Officers and Railway Protection Officers, conducting an inquiry under the provisions of those Act. It is, thus, submitted that therefore, the statements recorded under Section 67 of the NDPS Act are not barred with the provisions of Section 25 of the Evidence Act. He vehemently submitted that there is no pleading in the bail application in relation to Section 37 of the NDPS Act. Learned counsel for the respondent further relying on the decisions of Hon'ble Apex Court in the cases of Union of India Vs. Ram Samujh, (1999) 9 SCC 429, Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798 and Narcotics Control Bureau Vs. Dilip Pralhad Namade, (2004) 3 SCC 619 submitted that there is no reasonable ground for bail.
Considering the arguments of the learned counsel for the parties and going through the record, it is evident that as per prosecution case, alleged vehicle was taken into custody on 10th January, 2018 at 8:40 p.m. at Orai and two persons present in the vehicle were Shahid and Deepak Rana, whose statement was also recorded. In the statement of Shahid, he stated that the contraband was loaded and at the time of loading of the contraband, Tokeshwar Banjara, Harswaroop and Dileep Kumar Yadav were present at Jaipur, Orissa. Thereafter, Harswaroop left the vehicle at Balaghat and at the time of leaving the vehicle, Harswaroop told to Shahid and Deepak Rana that delivery of the contraband has to be given to Birjoo and Rahul @ Sonal r/o Jalaun and after delivery, payment will be made to them.
It is also evident that notice was issued by the Agency requiring the presence of the applicant on 24th January, 2018. When the applicant responded in pursuance of the said notice, after recording his alleged statement under Section 67 of the Act, he was taken into custody. From a perusal of record, it is evident that the complaint was filed on 6th July, 2018 arraying the applicant as an accused.
The argument advanced by the learned counsel for the respondent that the minority view of the decision of the Hon'ble Apex Court in the case of Toofan Singh (supra) has to be considered, has no force as the majority view of the said decision has categorically held that the statement recorded under Section 67 of the NDPS Act would not be treated as evidence as provided under Section 25 of the Evidence Act. Learned counsel for the respondent-D.R.I. also could not place any evidence to rebut the argument advanced by the learned counsel for the applicant in regard to the fact that the alleged independent witnesses of the arrest/recovery, namely, Sanjay Kumar and Pawnesh Kumar are not traceable, as is admitted in paras 79 and 80 of the complaint itself. He also could not dispute the fact that the applicant appeared in the office of D.R.I. in compliance of notice and he was taken into custody. It is also admitted that applicant does not have any criminal antecedent.
Thus, the twin conditions contained under Section 37 (1)(b) of the NDPS Act stand satisfied. This Court is of the view that if there is reasonable ground, the applicant is entitled to be released on bail.
In view of the above facts and circumstances and also the fact that applicant does not have any criminal antecedent and is in jail since 24th January, 2018 and till date the charge has not been framed, I am of the view that the applicant is entitled to be released on bail.
Let applicant - Har Swaroop be released on bail in F.I.R. No. 1 of 2018, under Sections 8/20/23/25/27/28/29 of Narcotic Drugs and Psychotropic Substances Act, Police Station D.R.I., District Lucknow, on his furnishing personal bond of Rs. 1 lac and two reliable sureties of equal amount, subject to following conditions :-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) Applicant shall not leave the vicinity of the district without permission of the trial court.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
However, the trial court is directed to conclude the trial expeditiously, preferably within a period of one year from today.
Dated : January 21, 2021 VKS