Counter affidavit filed on behalf of the State today is taken on record.
This application has been filed seeking the release of the applicant on bail in Case Crime No. 405 of 2013, u/s 8/20 N.D.P.S. Act (hereinafter referred as 'the Act'), Police Station- Kachwa, District- Mirzapur.
Heard learned counsel for the applicant and learned A.G.A.
Perused the record.
Submission of counsel for the applicant is that there is some background of unhappy relationship in between the police and the applicant and therefore, the applicant has been falsely implicated in the case. Another submission is that the chemical examiner's report shows that there is mixture of Ganja and Bhang in the contraband and does not suggest percentage of Ganja therein and therefore, it cannot be said that the whole recovered contraband was Ganja. Further submission of the counsel is that co-accused Shiv Shankar Jaiswal and Kailash Pal have already been granted bail by another Benches of this Court on 29.1.2015 and 21.8.2014 and therefore, the applicant should also be released on bail.
Learned A.G.A. has opposed the prayer for bail and has submitted that the total amount recovered from the applicant's possession is 5 quintals and one kilogram and that the hugeness of recovery of contraband by itself is sufficient to indicate the genuineness of the same and it cannot be said that for the purposes of false implication such huge amount of contraband has been planted by the police as no such material to substantiate the motive of false implication has been brought on record by the applicant as has been suggested by the counsel. So far as the submission with regard to bail granted to the co-accused Shiv Shankar Jaiswal and Kailash Pal is concerned, it has been pointed out that those two persons were never arrested on the spot and it was placed before the Court that their complicity in the crime has surfaced on the basis of confessional statement of co-accused while the applicant is the person, who was arrested on the spot along with the enormous contraband material and therefore, there is absolutely no parity in between the applicant and the co-accused, who have been released on bail. It has been further submitted that there is no requirement in law to fix the percentage of contraband in the sample in view of the notification of Central Government (Notification No. S.O. 2941 (E), dated 18.11.2009) whereby the Central Government has declared that in case of mixture or preparation with or without any neutral substance, the entire quantity of mixture/preparation shall be decisive to constitute the offence under Narcotic Drugs/Psychotropic Substances Act. Learned A.G.A. has also pointed out the definition of Section 2 (iii)(b) and (c) of the Act, 1985 in order to show that Ganja and any mixture thereof falls within the definition of cannabis (hemp).
Considering the rival submissions made by the parties at the Bar, it may be seen that the Ganja is one of species of cannabis (hemp) and has been defined in Section 2 (iii) (b) of the Act as given in the definition clause of the Act. A mixture of any of the forms of cannabis (hemp), with or without any neutral material, also finds place within the said definition under sub-section (c) of Section 2 (iii) of the Act. The Act also defines " Narcotic Drug" in sub-section (xiv) of Section 2 which provides that Narcotic Drugs means coca leaf, cannabis (hemp), opium poppy straw and includes all manufactured drugs. It may also be seen that Section 8 of the Act prohibits the possession and selling of any Narcotic Drug or Psychotropic Substance along with prohibition to other operations like production, manufacturing, purchase, transport, warehousing, use etc. except for medical and scientific purposes and manner or the rules or the order made thereunder. Likewise, it may be also seen that the percentage of any Narcotic Drug or Psychotropic Substance in any mixture or any solution has become immaterial in view of the Notification No. S.O. 2941 (E), dated 18.11.2009, which is quoted herein below:-
MINISTRY OF FINANCE (Department of Revenue) NOTIFICATION New Delhi, the 18th November, 2009 S.O. 2941 (E). In exercise of the powers conferred by clause (vii a) and (xxiii a) of Section 2 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notification S.O. 1055 (E), dated 19th October, 2001, namely :-
In the Table at the end after Note 3, the following Note shall be inserted namely:-
"(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply in the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form of isomers, esters, ethers and salts of these drugs including salts of esters, ethers and isomers, wherever existence of such substances is possible and not just its pure drug content.
[F.No. 662/33/2008-nc-1] Vimla Bakshi, Under Secy."
Reverting back to the facts of the case in hand, it is not disputed that the total quantity of the contraband recovered is 5 quintal and 01 kg. contained in total 18 bags which is a huge quantity indeed. It is also not in dispute on the basis of record that the chemical examiner's report mentions the result of chemical examination of 18 different samples collected by the investigating officer from those bags as a mixture of Ganja and Bhang. It is also clear from the record that as per prosecution version, the co-accused Shiv Shankar Jaiswal and Kailash Pal were not arrested on the spot but the applicant was arrested on the spot along with contraband and hence, in view of the above noted statutory provisions and looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case and the enormity of the recovered contraband, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 15.2.2016 Naresh