Learned counsel for the applicant has filed rejoinder affidavit, which is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 490 of 2020, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station-Kasana, District-Gautam Budh Nagar during the pendency of trial.
As per the prosecution case, in brief, on 02.09.2020, two persons, namely Kafil and Naim were apprehended by the police and one country made pistol of 315 bore, two live cartridges as well as doda, ganja, bhang and charas were recovered from their possession. A separate F.I.R., regarding the said recovery of contrabands was registered as Case Crime No. 485 of 2020, under Section 8/20 of N.D.P.S. Act. On interrogation, they told that we have purchased the recovered material from Anoopshahar, Bulandshahar and stated that they can show the said place from where supply of contrabands are made. On the pointing out of the aforesaid accused persons, the police reached at the spot and found that there are three rooms at the first floor of house of Smt. Ramavati Giri, out of which two rooms were locked, whereas in third room four persons were found sitting there. The aforesaid accused persons informed that they are suppliers of the contrabands. On apprehending them, they have disclosed their names as Radha Kishan Pandey s/o Sua Lal r/o Nawada, P.S. Harpalpur, District Hardoi, on taking his search Rs. 1,000/- has been recovered from his possession; second person disclosed his name as Mool Chand @ Moola s/o Chhatrapal r/o Naya Gaon, P.S. Kotwali Nagar, District Bulandshahar, on taking his search Rs. 700/- has been recovered from his possession; third person disclosed his name as Shivam Sharma s/o late Alok Sharma r/o Mohalla Devipura first, House No. 616, P.S. Kotwali Dehat, District Bulandshahar, on taking search Rs. 800/- has been recovered from his possession and fourth person disclosed his name as Tarun Chaudhari (the applicant) s/o Chandrapal Singh r/o EWS 153, Awas Vikas Colony, D.M. Road, Kotwali Dehat, Bulandshahar, on taking search, from his possession one country made pistol of 315 bore and two live cartridges were recovered. On interrogation, they admitted that they are jointly living on taking the said premises on rent and they are indulge in illicit trafficking/supply of doda, ganja, bhang and charas, which are kept in other two rooms, which were locked. The keys of said rooms were with co-accused Radha Kishan Pandey, who unlocked the same, and thereafter all the four accused persons themselves taken out the aforesaid contrabands from the rooms regarding which, it is disclosed that 168.400 Kgs. Ganja kept in five bags are belonged to co-accused Radha Kishan Pandey, 41.900 Kgs. Doda kept in five bags belongs to co-accused Mool Chand @ Moola, 176.200 Kgs. Bhang kept in nine bags belongs to co-accused Shivam Sharma and 10.500 Kgs. Charas kept in one bag belongs to the present applicant Tarun Chaudhari. Samples were drawn from the recovered contrabands and the same were sealed at the spot and specimen seal was also prepared. It is also alleged that all the proceedings, recovery and arrest have been made before Assistant Commissioner of Police, Greater Noida-Ist, thereafter separate F.I.Rs. were lodged against all the accused persons. So far as present case against the applicant is concerned, 10.500 Kgs. Charas is stated to be recovered on the pointing out of the applicant.
It is argued by the learned counsel for the applicant that there is no compliance of Sections 42 and 50 of the N.D.P.S. Act. It is submitted that the applicant is neither a member of any gang nor he has been indulged in any anti-social criminal activities as a member of said gang. The applicant has been falsely implicated in the present case. It is next submitted that the alleged doda, ganja, bhang and charas in question were recovered from the house of Smt. Ramavati Giri and keys of the locked rooms were in possession of co-accused Radha Kishan Pandey, who had opened the lock of the rooms. Smt. Ramavati Giri is neither accused nor witness of this case. It is submitted that in fact it is a case of joint recovery from a room but police in order to falsely implicate the applicant shown the burden of recovered charas upon the applicant. It is also submitted that the co-accused Mool Chand @ Moola has already been granted bail vide order dated 18.12.2020 by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 47359 of 2020. The applicant has no criminal history and he is languishing in jail since 03.09.2020.
Per contra learned A.G.A. submitted that in this case from the conscious and constructive possession of the applicant 10.500 Kgs. Charas has been recovered. The applicant was apprehended at the spot and recovered 10.500 Kgs. Charas belongs to the applicant. The provisions of Section 42 of the N.D.P.S. Act has been complied with in this case as from the contents of F.I.R., it is very much clear that information about the said raid and discovery of contrabands was given to Shri Brijnandan Rai, Assistant Commissioner, Greater Noida, who is the Gazetted Officer and he was also present at the time of alleged recovery. So far as compliance of Section 50 of the N.D.P.S. Act is concerned, it is submitted that the same is not applicable under the facts of the present case, because in this case, recovery of contraband (charas) has not been made from the personal search of the accused applicant. It is next submitted that in chemical examination report, sample has been found as "charas". Copy of chemical examination report dated 09.12.2020 has been brought as annexure no.CA-2 to the counter affidavit. It is also pointed out that after investigation charge sheet has been submitted on 15.12.2020 in this case against the applicant. The innocence of the applicant cannot be considered at this pretrial stage in bail application, considering the huge quantity recovery of charas from the possession of the applicant, bail application is liable to be rejected.
After having heard learned counsel for the applicant and learned A.G.A., I find that the co-accused Mool Chand @ Moola has been granted bail considering the facts that recovery of 41.900 Kgs doda from the possession of co-accused Mool Chand @ Moola is below commercial quantity, whereas the case of the prosecution against the present applicant is that he is involved with regard to recovery of 10.500 Kgs. Charas, which is much more than the commercial quantity, therefore, the parity of bail granted to co-accused Mool Chand @ Moola is not made out in case of present applicant.
So far as non compliance of provisions of Section 42 is concerned as argued on behalf of the applicant. I find that the information regarding disclosure made by the accused Kafil and Naim of Case Crime No. 485 of 2020 was given by Shri Sujit Kumar Upadhya, Station House Officer, P.S. Beeta-2, District Gautam Budh Shahar to Shri Brijnandan Rai, Assistant Commissioner, Police Greater Noida prior to proceeding for conducting raid after recording the same in G.D. No.85 at 21.58 O'clock and he also interrogated the accused Kafil and Naim. Shri Brijnandan Rai was also present at the spot at the time of recovery of aforesaid contrabands F.I.R. contains a clear description of how the search was made and contraband was seized. As such this Court is of the view that there is no violation of Section 42 of the N.D.P.S. Act in the instant case.
So far as non-compliance of Section 50 of the N.D.P.S. Act as argued by learned counsel for the applicant is concerned, it is relevant to mention that in the present case recovery has been made from a room, therefore, there is no requirement of compliance of Section 50 of the N.D.P.S. Act.
The law is now settled that the conditions under Section 50 of the N.D.P.S. Act applies only where recovery is made from search of the "person". The word "person" has been defined by the Constitutional Bench of the Apex Court in case of State of H.P. Vs. Pawan Kumar (2005) 4 SCC 350 as well as in case of Jarnail Singh Vs. State of Punjab (2011) 3 SCC 521. In the facts and circumstances of the case, it cannot be held that there was non compliance with Section 50 of N.D.P.S. Act.
It is also relevant to mention that on account of recovery of commercial quantity of charas in the instant case, the provisions of Section 37 of the N.D.P.S. Act are attracted, which is in addition to Section 439 of Cr.P.C.
In view of Section 37 of the N.D.P.S. Act, before granting bail for the offence under N.D.P.S. Act twin conditions as provided under Section 37(1)(b) (i) and (ii) have to be satisfied. Section 37 of the N.D.P.S. Act is quoted herein below:
"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 (2 of 1974) or any other law for the time being in force, on granting of bail."
The expression 'reasonable grounds' has not been defined in the N.D.P.S. Act, but the Hon'ble Apex Court in the case of Union of India Vs. Rattan Mallik @ Habul, [2009 (1) SCC (Crl) 831] has settled the expression "reasonable grounds" in para 13 and 14, which are quoted herein below:
"13.It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression `reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv Shanker Kesari2] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
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."
Here it is also relevant to mention that to check the menace of dangerous drugs flooding the marked, strict conditions have been added in Section 37 of the N.D.P.S. Act. Apex Court considering the provisions of Section 37 of the N.D.P.S. Act, in case of Union of India Vs. Ram Samujh 1999 (9) SCC 429 has made following observations in para 7 of the said judgment, which are reproduced herein below:-
"[7] It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary. Union Territory of Gua. [1990] 1 SCC 95 as under:
"With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."
Considering the facts that applicant was apprehended at the spot along with other co-accused persons, no cogent reason for his false implication has been mentioned in the bail application, huge quantity of recovered contraband in this case cannot be planted by the police, all the accused persons are well known to each other, conscious and constructive possession of the applicant over the recovered 10.500 Kgs. Charas as well as the manner, in which the applicant was engaged in illicit trafficking of charas, I do not find any good ground to grant bail to the applicant at this stage in the light of provisions of Section 37 of the N.D.P.S. Act.
Accordingly, the bail application is rejected.
However, the trial court is directed to make an endeavour to conclude the trial within one year from the date of production of copy of this order without granting any unnecessary adjournment to either parties.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 19.2.2021 P.S.Parihar