HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30001 of 2013 Applicant :- Sheo Lochan Tiwari Opposite Party :- State Of U.P. Counsel for Applicant :- Lav Srivastava,M.A. Mishra,Rajeev Misra,V.P. Srivastava Counsel for Opposite Party :- Govt. Advocate Hon'ble Naheed Ara Moonis,J.
The instant bail application has been moved on behalf of the applicant Sheo Lochan Tiwari S/o Sri Hira Mani Tiwari, resident of Bhabhauri, P.S. Koirauna, District Sant Ravi Das Nagar (Bhadohi) to release him on bail during the pendency of trial before the court below in Case Crime No.28 of 2013, under Sections 8/18 and 20/22 of N.D.P.S. Act, P.S. Koirauna, District Sant Ravi Das Nagar (Bhadohi).
Heard Sri Rajeev Misra, learned counsel for the applicant as well as learned AGA for the State and perused the material placed on record.
Shorn of necessary details, the prosecution case in nutshell is that an FIR was lodged by Vijay Narain Mishra, S.H.O., Koirana, District Sant Ravidas Nagar (Bhadohi) on 31.5.2013 at 5.45 pm in respect of the incident occurred on the same day at about 4.20 pm alleging therein that from the house of the applicant 30 bags of poppy straw weighing 438 kg, three bags of Ganja weighing 38 Kg, one plastic bag of opium weighing 825 gm, and three small bags of poppy hush weighing 59 Kg. have been recovered and also Rs.52,25,000/- in a bag.
The crux of the argument of the learned counsel for the applicant is that the applicant is absolutely innocent and has been implicated by the police showing false recovery of narcotic substances from his house. No compliance of the mandatory provisions of the said Act has been done at the time of alleged search and seizure. There is no public witness named in the First Information Report who was present at the time of alleged raid conducted at the house of the applicant. The recovered samples were sent for examination to chemical analyst at Ram Nagar Varanasi Laboratory. There is difference in the weight of each contraband drawn for chemical examination sent to the Laboratory which makes the recovery doubtful. It creates doubt as to whether the sample sent to chemical examiner was the same which was taken on the spot. According to the chemical analyst from the sample of Opium 3.1% of Morphine was found and in respect of other contraband no percentage has been mentioned in the report. On raking, the percentage of the Opium comes to very small quantity. It is not the total weight of the substance recovered that is material, but the total percentage content of narcotic drug translated into weight that is relevant for ascertaining the quantity recovered from the accused. Out of total substance 103.50 gm sent for analysis, the quantity of opium comes to only 3.1% which is less than the commercial quantity.
The learned counsel for the applicant has relied upon the decision of Hon'ble Apex Court reported in 2008 (5) SCC 161 E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau in which it has been held that as per the Notification dated 19.10.2001 issued by the Central Government which deals with heroin, small quantity has been mentioned as 5 gm. and commercial quantity has been mentioned as 250 gm. So, the basic question for decision is whether the contraband involved in this case is of small, intermediate or commercial quantity under Section 21 of the NDPS Act, and whether the total weight of the substance is relevant or percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused. It has been held that percentage of heroin content translated into weight is relevant for ascertaining the quantity recovered from the accused. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. Thus the case of E. Micheal Raj (Supra) squarely applies with full force in the present case of the applicant.
Learned counsel for the applicant has further contended that the applicant is a man of status and the money alleged to have been recovered from his house is neither earned from selling any illegal contraband nor he was arrested from his house. In fact on the date of incident at 9 am he was on the way from his house to Gyanpur and when he reached Gopiganj at about 10 am, he was detained by the police and recovered Rs.52,25000/- from his bag which belongs to him. The applicant is 'A' class registered contractor in Irrigation Department and also he is 'C' class registered contractor in RAC Department and also registered in the name of M/s Tiwari Construction. On 6.6.2013 tender was invited in the office of Superintendent Engineer Nawam Mandal, Irrigation Work, Moradabad District and another tender was also invited from the office of Bahraich District on 10.6.2013. The applicant had to participate in the tender of the aforesaid contract and was required to deposit security money by way of F.D.R./N.S.C. of Rs.29,65000/- and for that purpose he was going to Gyanpur for getting the draft prepared from the bank out of the aforesaid amount of cash amount. The applicant had also to purchase TATA Hitachi J.C.B. for which he was required to deposit advance of a draft of Rs.15 lacs. On the date of incident he was going to make a draft of Rs.15 lacs in favour of TATA Agency for booking the vehicle. The remaining amount of Rs.7 lacs was to be deposited in his bank account as his saving. He has regular transaction of money in his two accounts maintained in the State Bank of India and has sufficient deposit in both the accounts. Besides this he is having immovable property and 15 acres agricultural land which yields good income.
Learned counsel for the applicant further stated that it has falsely been alleged in the FIR that the applicant is involved in buying and selling contraband and the money which has been recovered has been earned out of the sale and purchase thereof. He has pointed out that even if this fact is taken to be true no compliance of Section 42(2) of N.D.P.S. Act has been made by the raiding party prior to search and seizure. It is further submitted that while preparing the recovery memo, the ground of belief has to be communicated to the immediate superior official within seventy two hours. But in the present case there is nothing on record to establish that the raiding officer had recorded the ground of his belief hence the procedure is not followed as required Section 42(2) of N.D.P.S. Act. which vitiates the entire proceeding in law as held by Apex Court in 2014 SCCL. COM 300 State of Rajasthan Vs. Chhagan Lal. He contended that on account of non-compliance of Section 42(2) of N.D.P.S. Act the Apex Court has affirmed the judgment of the High Court setting aside the conviction of the accused-respondent in the said case and the appeal preferred by the State of Rajasthan was disposed of. Even from perusal of the entire case diary there is no iota of any evidence to show that there is any compliance of Section 42(2) of N.D.P.S. Act.
By filing a supplementary affidavit along with the order sheet of the trial court learned counsel for the applicant has contended that the applicant is languishing in jail since 31.5.2013. The charge sheet was submitted on 17.8.2013 but the charge was framed against the applicant on 3.7.2014 and the court below is fixing date successively for examination of the prosecution witnesses. The applicant is attending the court on each and every date. On 28.1.2015 the court below has passed the order issuing bailable warrant/notice under Section 350 Cr.P.C. against Vijay Narain Mishra, who is the complainant. Despite issuance of bailable warrant the complainant has not appeared till date and the date has been fixed for evidence, thus the trial is being delayed at the behest of the prosecution which is curtailing the life and liberty of the applicant. The applicant has no criminal history and there is no chance of absconding, if the applicant is released on bail. Therefore, the applicant who is in jail since 31.5.2013, deserves to be enlarged on bail.
Per contra, learned A.G.A. has vehemently opposed the prayer for bail of the applicant and contended that huge recovery of 38 Kg of Ganja, 825 gm of opium, 438 Kg poppy straw and 59 Kg of poppy hush cannot be implanted by the police for implicating the applicant. Not only this a sum of Rs. 52,25,000/- has also been recovered and the recovery has been made from the house of the applicant. The First Information Report itself was lodged after receiving information from the Superintendent of Police by the complainant who was posted as Station House Officer, Koirauna, District Sant Ravi Das Nagar (Bhadohi) that the applicant who is involved in business of selling contraband of ganja, opium, poppy straw and poppy hush which are lying in his house. A team was constituted who raided the house of the applicant and recovered the contraband and at the time of search and recovery the applicant was given option to exercise his right to be searched either before Magistrate or Gazetted Officer which was refused by him. The search has been conducted in the presence of the applicant. Thus, it is wrong to say that while he was going away from his house he was arrested by the complainant. On one hand the applicant is trying to justify the recovery of money and on the other hand he has totally denied that no contraband was recovered from his house. On the basis of a confidential letter by NCB a case was registered against one Ram Bahadur on account of seizure of 33.6 Kg ganja who was arrested and in his voluntary statement under Section 67 N.D.P.S. Act he admitted that he is purchasing ganja from the applicant Shiv Lochan Tiwari for past 8 years. It is further contended that whole weight of material shall be taken into account for determining the commercial quantity or other quantity and, therefore, the whole quantity of the recovered substance will have to be taken into account for the purposes of determining the quantity of contraband. The explanation with regard to the recovery of money is not satisfactory at all as the currency notes which have been recovered are of denomination of Rs. 10, 20, 50, 10, 500 and 1000 which on being counted were Rs.52,25,000/- in total. The different denomination of notes itself shows that these are the sale proceeds of the alleged contraband. There is also sufficient compliance of mandatory provision of Section 42(2) of the N.D.P.S. Act and the cases cited by the learned counsel for the applicant will not apply under the facts and circumstances. Compliance of Section 42(2) of the N.D.P.S. Act about writing and sending a copy thereof to the official superior is a question of urgency and expediency. The question will be determined during trial if there is total non-compliance of Section 42(2) of the N.D.P.S. Act. In Chhagan Lal's case (Supra) against the acquittal of accused by the High Court the appeal was preferred before the Apex Court, whereas the instant case is yet to be adjudged on the basis of the evidence whether there is any non-compliance of mandatory provision of the Act but under the circumstances where huge recovery of doda powder & capsules, ganja and opium along with cash from his house the applicant does not deserve to be released on bail as there is every likelihood that the applicant will misuse the liberty of bail by indulging in similar activies.
I have considered the rival submission of the learned counsel at the bar and have gone through the record as well as the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985.
The contention of the learned counsel for the applicant is that E. Micheal Raj's case (Supra) will apply under the facts and circumstances of the case with regard to the quantity of Narcotic Drugs and Psychotropic Substances Act, 1985. The provisions of the NDPS Act were amended by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f 2.10.2001), which rationalized the punishment structure under the NDPS Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances carried. It appears from the statement of Objects and Reasons of the Amendment Act that the intention of the legislature by the introduction of the amendment is to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. A notification dated 18.11.2009 issued by the Government of India in this respect (much after the decision of E. Micheal Raj's case (Supra) which is as follows:
S.O. 2941 (E)- In exercise of the powers conferred by Clauses (viia) and (xxiiia) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Central Government hereby makes the following amendment in the Notification S.O. 1055(E) dated 19.10.2001 namely:
In the table at the end after Note 3 the following note shall be inserted namely:
(4) The quantities shown in the column 5 and column 6 of the Table relating to the respective drugs shown in the column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers, salts, and salts of isomers, wherever existence of such substance is possible and not just its pure drug content." Thus by way of aforesaid amendment entire mixture or any solution or any one or more drug of that particular drug and not just its drug content shall be taken into account.
Though the commercial quantity of contraband opium is 2.5 Kg as per the schedule and 825 gm has been found which is less than the commercial quantity but other contraband have also been found in huge quantity which is also affirmed by the public analyst report that the recovered articles are opium, ganja and Doda Powder & Capsules, therefore, the case cited by the learned counsel for the applicant relating to the percentage of Narcotic Drugs and Psychotropic Substances will not apply in the present facts and circumstances . So far as the compliance of Section 42(2) of N.D.P.S. Act is concerned which deals with the power of entry, search and arrest without warrant or authorization, from the material so far collected by the investigating officer is a question of fact to be decided in each case as the question is one of urgency and expediency if there is delay in compliance of which satisfactory explanation to be put forth during trial. After investigation the charge sheet has also been submitted against the applicant and the court below has also proceeded to frame charge against him which goes to show that prima facie the applicant is involved in sale and purchase of the contraband, therefore, gravity of the offence is too much. The confessional statement made by an accused under the N.D.P.S. Act is admissible in evidence. Since the applicant satisfactorily fails to account for possession of illicit contraband articles in huge quantity it creates a legal fiction and presumes the possession which is a mental state and it includes knowledge of fact. It hardly requires to be stated that once a person released on bail in a serious offence where punishment is quite deterrent the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses and also create problem of law and order situation. Release on bail in serious offence of such nature larger interest of the public and state always matter.
In view of the aforesaid facts and circumstances, I do not find a fit case to release the applicant on bail. Therefore, the bail application is rejected.
It is expected that the court below shall proceed with the case and conclude the trial expeditiously in accordance with law, if possible within six months from the date of production/receipt of a certified copy of this order.
Order Date :- 23.4.2015 Mt/