HIGH COURT OF JUDICATURE AT ALLAHABAD COURT NO. 22 CR. MISC. BAIL APPLICATION NO. 34720 OF 2013 Sushant Gupta s/o Rajesh Chandra Gupta, r/o Ram Vihar Colony, Delapeer, P. S. Izzatnagar District Bareilly Versus Union of India Counsel for the applicant : Amit Kumar Srivastava Counsel for the opposite party : Sanjay Kumar Singh CORAM:
HON'BLE ANIL KUMAR SHARMA Applicant-Sushant Gupta seeks bail in Case Crime no. 57 of 2013 u/s 8/20/25/29 of N.D.P.S. Act, P. S. Custom Department, District Bareilly.
2. After exchange of affidavits arguments of parties' counsel have been heard at length and the record had been perused.
3. It has been argued by the learned counsel for applicant that the whole prosecution story is false, the applicant has not committed any offence and has been illegally implicated in the case; that the applicant had recently completed BCA course and was preparing for competitive examinations, has never indulged in any illegal or criminal activities and has been booked in the case only because he is son of co-accused Rajesh Chandra Gupta. It has been contended that even if the prosecution story is taken as true then also it cannot be said that the applicant was having any knowledge of the charas being carried in the Bolero vehicle UK-50M/5586 and this fact is corroborated by their statements u/s 67 of the NDPS Act and in absence of any knowledge that narcotic substance is being transported in the vehicle, the applicant cannot be prosecuted. It has been further submitted that there is no independent witness of the locality and recovery has not been made at the spot; that the charge-sheet has been submitted without any report of chemical analysis, so it cannot be said that the recovered contraband is charas and thus the charge-sheet is incomplete and defective, therefore, the applicant is entitled for bail u/s 167 Cr. P. C. Mandatory provisions of sections 42, 50, 52, 55 and 57 have not been followed, which entitles the applicant to be released on bail, argued the learned counsel. It has been further contended that the alleged recovery of contraband was made on 19.2.2013 at about 8 p.m., but its memo had been prepared on 20.2.2013 and the applicant was produced before the Court on 21.2.2013 i. e. 48-hours after his detention, which is patently illegal so the applicant deserves bail. The case of the applicant is that the officials of the Customs Department found the alleged Bolero car in abandoned condition and on suspicion his father was called by the officials. The applicant accompanied his father and thereafter both of them were illegally challaned by the department. Lastly it has been submitted that the applicant is a young man having clean record preparing for competitive examinations and is in judicial custody since 21.2.2013, so he may be released on bail.
4. Opposing the bail application learned Special Public Prosecutor of Customs & Central Excise has argued that on the basis of secret information, the Bolero vehicle UK-04M/5586 was intercepted by the officers of the Customs Department on 19.2.2013, which was being driven by co-accused Rajesh Chandra Gupta, father of the applicant and applicant was also travelling therein. The applicant was detained, searched, and 50.300 kgs charas was recovered which was kept in the hidden cavity of the aforesaid vehicle and thereafter he was arrested in accordance with the mandatory provisions of the NDPS Act by the officials of the Customs department and all documents in this regard were properly drawn up. The accused was arrested on 20.2.2013 at 8.00 p.m. and was thereafter produced in the Court on 21.2.2013 and since then he is in judicial custody. It has been further submitted that being the son of main accused Rajesh Chandra Gupta, the applicant was also in conscious possession of the contraband in view of the provisions of section 35 and 54 of the Act and both of them were indulged in illegal trafficking of the narcotic drugs from Nepal. It has been further submitted that the applicant and his father both have voluntarily confessed their guilt and the new bolero vehicle was purchased about a year before in the name of the father of the applicant which had been released vide order dated 06.06.2013 by the Court; that the statements of the accused are admissible u/s 67 of NDPS Act and are not hit by section 25 of the Evidence Act. It is contended that the samples of the Charas were sent for examination to Central Revenues Control Laboratory, New Delhi and their report dated 4.3.2013 clearly indicates that the samples were received by them in sealed and intact condition and after thorough examination they have opined that the samples in question answers positive test for Charas. Lastly it has been submitted that the recovered Charas is much more than the commercial quantity, therefore, in view of provisions of section 37(1)(b)(ii) of the Act, the applicant is not entitled for bail.
5. This application for bail has been filed under Section 439 Cr. P. C., however, section 37 of the Act being a special enactment, general provisions of S. 439 of the Code will be required to be read subject to the limitations provided in S. 37 in view of Section 4 of Code of Criminal Procedure and sub-section (2) of Section 37 of the Act.
6. Section 37 of the NDPS Act, as substituted by Act 2 of 1989 with effect from 29th May, 1989 with further amendment by Act 9 of 2001 reads as follows:
"37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) 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.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (12 of 1974), or any other law for the time being in force on granting of bail."
7. Under section 437 or 439 of the Code of Criminal Procedure it is for the prosecution to show the existence of reasonable grounds to support the belief in the guilt of the accused to attract the restriction on the power to grant bail. However, as the definition of section 37 noted above indicate, it is the accused who must show the existence of grounds for the belief that he is not guilty, to satisfy the condition precedent and lift the embargo on the power to grant bail. This is the distinction between the two provisions which makes section 37 of NDPS Act, more stringent. The twin conditions under section 37(1)(b)(ii) of the Act required to be satisfied are cumulative and not alternative as held by the Apex Court in the case of Collector of Customs Vs. Ahmadalieva Nodira (2004) 3 SCC 549.
8. The Apex Court in para-14 of the report in the case of Union of India Versus Rattan Mallik @ Habul (2009) 1 SCC (Cri) 831, has highlighted the considerations for bail under NDPS Act with reference to section 37 thereof, which reads thus:
"14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of `not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."
9. Although at this stage it cannot be said that the mandatory provisions with regard to the detention, arrest, search and seizure etc. in respect of the applicant have not been followed, simply because it is premature to give any verdict on the argument of the learned counsel for the applicant and it would be decided after appreciation of the evidence led by the parties in the case. Further this issue had been illuminatingly answered by the Apex Court in the case of Narcotics Control Bureau Vs. R. Paulsamy (2000)9 SCC 549 and it has been observed in para-6 as under:
"In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which the learned Single Judge should have been taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with formalities mentioned in Sections 52 and 57."
10. Further in view of the provisions of sections 35 and 54 of the Act, it is the burden of the applicant to prove that he was not in conscious possession of the contraband, if it is proved that he was in possession thereof and that he had no such mental state with respect to the act charged as an offence. The consistent case of the prosecution is that the applicant was found travelling in the car owned by the family along with his father and they were found in possession of 50.300 kgs of Charas hidden in the secret cavity (specially made for the purpose) of the Bolero vehicle. The defence taken by the applicant in para-17 of the affidavit appears to have been taken for the first time in the bail application as it does not find place in the bail rejection order of the applicant passed by the Court below on 3.10.2013. The statement of the applicant recorded by the department under section 67 of the Act falsifies the plea taken by the applicant to explain the recovery of the contraband in their vehicle. In the case of Dehal Singh Vs. State of Himachal Pradesh 2011 (72) ACC 611 (Supreme Court) both the appellants were travelling in the car from which the Charas was recovered and therefore, they were found in possession thereof. The Apex Court had observed in para-19 of the report as under:
"Both the appellants have been found travelling in the car from which charas was recovered and, therefore, they were in possession thereof. They were knowing each other. They were not travelling in a public transport vehicle. Distinction has to be made between accused travelling by public transport vehicle and private vehicle. It needs no emphasis that to bring the offence within the mischief of section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognizes that once possession is established the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Further the person who claims that he was not in conscious possession has to establish it. Presumption of conscious possession is further available u/s 54 of the Act, which provides that accused may be presumed to have committed the offence unless he accounts for satisfactorily the possession of contraband. The view which we have taken finds support from a judgment of this Court in the case of Madan Lal and another V. State of H. P. 2003 (7) SCC 465, wherein it has been held as follows:
"21. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of section 54 where also presumption is available to be drawn from possession of illicit articles.
In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of section 35 and 54 of the Act."
11. The facts of the above are quite similar to the instant case, where both the accused are father and son; the vehicle is owned by the family i. e. registered in the name of the father of the applicant and both of them were found travelling in the car which had a concealed cavity from where 50.300 kgs. Charas was found. The case of Bhola Singh Vs. State of Punjab 2011 (2) JIC 28 (SC) relied upon by the learned counsel for the applicant does not help him at all because of distinguished facts. In this case the accused was although owner of the truck involved in trafficking of contraband (poppy husk), but was not found present at the spot. He merely gave his wrong address while purchasing the truck and so it was not found sufficient to raise presumption u/s 35 of the Act.
12. Similarly the case of Sorabkhan Gandhkhan Pathan and another Vs. State of Gujarat (2204) 13 SCC 608 referred by the learned counsel for the applicant has no application in the instant case because the 2nd appellant was found to be travelling in the auto-rickshaw (a public transport vehicle) along with three other persons and no material was produced to establish that either the appellant had the knowledge that appellant no. 1 was carrying the contraband or was, in any manner, conniving with the said accused in carrying the same. We have already found that both the accused here are father and son and were found travelling in the family car and there was no other person therein, so the ratio of the case would not apply to the instant case.
13. The counsel for the accused-applicant has valiantly tried to show that the applicant is pursuing studies to appear in competitive examinations after clearing the course of BCA in 2008 and is not at all indulged in any criminal activity. Suffice it to say that the incident had taken place about five years after the applicant did BCA and he could not demonstrate as to where he is taking up such studies to viz - name of any Coaching Institute or Centre and whether he had ever appeared in any competitive examination before the incident or not?
14. It has been vehemently argued by the learned counsel for the applicant that the accused appellant was produced before the Court 48-hours after his arrest by the department and as such his custody was illegal and it entitles him to be released on bail. Even if we accept this contention for the sake of argument only I am afraid whether this can be a ground for bail, after the accused is being granted successive legal judicial remands. The department has seriously objected to this plea on the premise that the accused was taken in to custody at 8.00 p.m. on 20.2.2013 and the following day he was produced before the Court. The accused was detained for enquiry by the department along with his father on 19.2.2013 at about 8.00 p.m. on Richcha Road and on the request of his father they were taken for search etc. to the office of Customs Department in Bareilly, where they reached at about 11.30 p.m and thereafter further proceedings regarding search, seizure, arrest etc. were undertaken.
15. It is not disputed that the search and seizure was not made by the arresting officer of the department at the spot, but at a quite distant place in the office of the department is wholly illegal, argued the counsel for the applicant and it entitles him to be released on bail has been seriously objected to by the special counsel for the department and he has placed reliance on the case of Khet Singh vs. Union of India 2002 (45) ACC 41. In this case search and seizure was made at crossing where truck was intercepted but neither mahazar was drawn up at the spot nor the sample was taken, but they were prepared at the office of Customs where appellant was also present. The Hon'ble Court did not interfere in the conviction of the appellant on the premise that there was no allegation or suggestion that contraband article was meddled with by the officers.
16. As regards the last argument about the applicant being a young man having no criminal antecedent and is in judicial custody for more than a year, we can usefully refer to the case of State Vs. Syed Amir Hasnain (2002) 10 SCC 88, where the Apex deprecated the release of an accused under NDPS Act charged for recovery of 2.7 kg of opium for the reasons that he was a practising lawyer, a young man and there was no past criminal history against him. Fact that the accused had been in custody for a period of six months was not found valid reason to release the accused on bail for the offence punishable under NDPS Act by the Apex Court in the case of Narcotic Control Bureau Vs. Raju (2006)9 SCC 712.
17. Indisputably complaint against the applicant had been filed by the department on 17.8.2013 and the trial has begun. The applicant has filed the copy of the statement of PW-1 recorded in the trial Court and his learned counsel has tried to show certain pieces of evidence to demonstrate non-compliance of mandatory provisions of the Act. However, in my opinion, it would not be expedient in the interest of justice to appreciate the evidence of PW-1in these misc. proceedings of summary nature, as any finding of this Court, may be for consideration of the bail application of the applicant, is likely to prejudice any of the parties.
18, In view of all the aforestated reasons, in the opinion of the Court, the twin conditions as enumerated in section 37 (1)(b)(ii) of the Act, for grant of bail to the applicant for the offences under NDPS Act are not satisfied, therefore, he cannot be released on bail and the bail application is accordingly dismissed.
(Anil Kumar Sharma, J) July 21, 2014 Imroz/-