Merry Lal Tan Tluang And Another vs Narcotics Control Bureau , New ...
2013 Latest Caselaw 6409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 51
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29743 of 2013
 

 
Applicant :- Merry Lal Tan Tluang And Another
 
Opposite Party :- Narcotics Control Bureau , New Delhi
 
Counsel for Applicant :- Dileep Kumar,Romeshwari Prasad
 
Counsel for Opposite Party :- Sanjay Kumar Singh
 

 
Hon'ble Ramesh Sinha,J.

1. Heard Sri Dileep Kumar assisted by Sri Romeshwari Prasad, learned counsel for applicant and Sri Sanjay Kumar Singh, learned counsel appearing for N.C.B.

2. That on 15.3.2013 on basis of a complainant/information a consignment of seventeen parcels bearing invoice no. 13869376 dated 12.3.2013 which were lying at the North Eastern Carrying Corporation Ltd. (hereinafter referred to as NECC) godown at Sahibabad which were suspected to contain drugs were checked by the Officers of Narcotics Control Bureau (hereinafter referred to as N.C.B.) and total of 275 kilograms PSEUDOEPHEDRINE, a controlled substance under the N.D.P.S. Act was recovered from sixteen parcels and no contraband was recovered from the seventeenth parcel. The said consignment was destined to M/s Khalan Than Collection, Aizwal, Mizoram, containing footwear and other goods. On the complaint by the NECC employee, the NCB/DZU team, in the presence of two employees of NECC namely Mr. Satish Kumar and Mr. Azamuddin checked all the seventeen cartoons and in sixteen cartoon white colour tablets were found, which on testing with the help of field testing kit gave positive test for PSEUDOEPHEDRINE and in the seventeenth cartoon no such contraband was found. Thereafter, the NCB/DZU team took out some tablets for chemical analysis report and sealed the remaining parcels. It is further alleged in the complainant that on 1.4.2013 at about 10:45A.M. NCB/DZU received a telephonic call from the employee of NECC stating that one lady came to the office of the NECC and was inquiring about the above mentioned parcels and the employee of NECC further informed the department that the lady will come again to the office at about 1130 Hrs. to 1230 Hrs. on receiving this information, the team of NCB/DZU reached the godown of NECC and waited for the said lady. At about 1200 hrs. both the accused applicants again came to the office of NECC, where the accused applicants were hauled up by the NCB team.

3. It was argued by the learned counsel for applicant that the applicant no.1 is a refugee/widow lady, who belonged to Mizoram and is living in Delhi and earning her livelihood. He submitted that as per Section 9-A of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as NDPS Act) no categorization of small or commercial quantity has been provided. Moreover, in view of provision under Section 25-A of the said Act no minimum or maximum sentence has been given. He further pointed out that the mandatory provision of Section 50 of the N.D.P.S. Act has not been complied with, hence the recovery made of the said controlled substance is bad in the eye of law. It was argued that the statement of the accused/applicants, which has been recorded by the N.C.B. under Section 67 of the Act was not voluntarily one and it was given under undue influence and pressure, hence the same cannot be relied upon and the applicants are entitled to be released on bail. The applicants are in jail since 2.4.2013.

4. On the other hand, Sri Sanjay Kumar Singh, learned counsel appearing for N.C.B. has vehemently opposed the prayer for bail and submitted that in the instant case 275 Kg. PSEUDOEPHEDRINE have been recovered, which is used for the manufacture of Psychotropic Substance Amphetamines and Methamphetamines, which find place at Sl. No.152 and 159 in the list of Psychotropic Substance. It was further argued that as per the statement of the accused/applicants recorded under Section 67 of the N.D.P.S. Act, it is apparent that the applicants were indulged in illicit transportation and dealing of the said controlled substance and 275 kilograms PSEUDOEPHEDRINE have been recovered. The applicants were apprehended on 1.4.2013 at the time when they had come to the office/godown of the NECC to inquire about the status of the consignment booked by them which was destined to Aizwal, Mizoram.

5. He further pointed out that the officers/officials concerned of NECC identified the applicant No.1 Merry Lal Tan Tluang to be the same lady who has booked the parcel in question to the NECC and made payment for the same. He further submits that notice under Section 50 of the N.D.P.S. Act was also served to both the accused/applicants by N.C.B. official and the applicants have given their statements voluntarily under Section 67 of the N.D.P.S. Act which is admissible in evidence and shall not be hit by Section 25 of the Evidence Act. The statement of the accused/applicants have annexed at annexure 19 and 21 of the Counter Affidavit. He further pointed out to the Court that on 5.7.2013 charges were framed against the accused/applicants by the trial court and out of 16 witnesses two witnesses have been examined and rest are yet to be examined. He drawn the attention of the Court towards the fact that the accused/applicants are Barmees refugee and will flee from the clutches of the law and may abscond and the trial would be held up in absence of accused/applicants.

6. It has been further submitted by the learned counsel for N.C.B. that the N.C.B. officials have also obtained query from the Administrative Officer United Nations High Commissioner of Refugee vide letter dated 12.4.2013 about the status of these two accused/applicants, and it has been informed by the concerned authority i.e. United Nations High Commissioner For Refugee (hereinafter referred to as UNHCR) vide letter dated 25.4.2013 that applicant no.1 is recognized as refugee under the mandate of the United Nations High Commissioner for Refugee, whereas, applicant no.2 is an illegal immigrant as there is no record available regarding his status in India, the said letters have been enclosed at page 159 and 160 of the Counter Affidavit.

7. Learned counsel for applicant has placed reliance upon a judgment of Bombay High Court in Rafael Palafox Garcia Vs. Union of India and other, 2009 Cr.L.J. 446 in which it has been held that Pseudoephedrine tablets are basically controlled substances and is not necessarily used only to make Narcotic Drugs or Psychotropic Substances, but it is a very versatile substances which can be used in the manufacturing of various things including medicines, hence the applicants are entitled to be released on bail.

8. Sri Sanjay Kumar Singh, learned counsel appearing for N.C.B. stated that the judgment of Bombay High Court in the case of Rafael Palafox Garcia (Supra) is not applicable in the present case as in the said judgment the Bombay High Court was dealing with the provision contained under section 37 of the N.D.P.S. Act and has drawn attention of the Court towards para 24 of the said judgment which reads as under:-

"24. The second ground canvassed before me is that there is an amendment to the NDPS Act including Section 37. In cases of offences under Section 19 or 24 or 27A and offences involving commercial quantity an accused would not be released on bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence. The present applicant is facing prosecution for charges under Sections 25A and 29 read with 9A of the N.D.P.S. Act and hence obviously his case would not be covered under Section 37 of the NDPS Act. Moreover, as far as Section 9A which deals with controlled substance is concerned, there is no categorisation of small quantity or commercial quantity. Therefore, it was contended by the learned Counsel for the applicant, and in my view rightly so, that the concept of commercial quantity is applicable only to narcotic drugs and psychotropic substances and not to controlled substances."

9. Sri Sanjay Kumar Singh, learned counsel appearing for N.C.B. has placed reliance on a judgment of Apex Court in Union of India Vs Kuldeep Singh, (2004) 2 SCC 590 and drawn the attention of this Court towards paragraphs 16, 17, 18, 19 to 24 and 25 which is quoted herein below:-

"16. Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".

17.An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. That the legislature intended to make the offences under the Act so serious to be dealt with sternly and with an iron hand is made clear by providing for enhanced penalties, including even death sentence, in certain class of cases, when convicted for the second time.

18. It is true as contended by learned counsel for the respondent- accused that no minimum sentence is prescribed, but the sentence imposed should fit in with the gravity of offence committed but in the teeth of the other indications in the enactment, mere absence of a provision for minimum sentence is no reason or justification to treat the offences under the Act as any less serious as assumed by the High Court. It was highlighted by learned counsel for the respondent that the Court had a discretion which according to him has been rightly exercised. The High Court seems to wholly misdirected itself not only as to the seriousness of the offences but also with reference to the relevant consideration which should weigh with the Court in exercising its discretion.

19. Discretion is to know through law what is just. Where a Judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. Not any one of the reasons attempted to be enumerated by the High Court in this case could in law be viewed as either relevant or reasonable reasons carrying even any resemblance of nexus in adjudging the quantum of punishment in respect of an offence punishable under the Act.

20. When anything is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty of power of acting without other control than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary).

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp v. Wakefield, (1891) Appeal Cases 173). Also (See S.G. Jaisinghani v. Union of India and Ors. (AIR 1967 SC 1427).

22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a Judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said (Lord Camden, L.C.J., in Hindson and Kersey (1680) 8 How, St. Tr.57.)

23. If a certain latitude or liberty accorded by statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of the discretion, and prevents it from being wholly absolute, capricious, or exempt from review.

24. Such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to vested substantive rights. The matters which should regulate the exercise of discretion have been stated by eminent judges in somewhat different forms of words but with substantial identity. When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet (Per Willes J. in Lee v Budge Railway Co., (1871) LR 6 CP 576, and in Morgan v. Morgan, 1869, LR 1 P & M 644).

25.As indicated supra, the discretion does not appear to have been judiciously and judicially exercised by the High Court in this case. When the volume of contraband articles is taken note of, it is sufficient for a conclusion that the quantity of finished product out of it which would have been extracted it would have been nearly 300 kilograms of heroine, and the accused would have got about forty kilograms as admitted by him. The disastrous effect (of this quantity of heroin) would be mind-boggling. The High Court seems to have been swayed by the age of accused's father, his family problems and more importantly he being not a "habitual offender". Such considerations are really meaningless when one considers the fact that the accused was in possession of contrabands which would have destroyed the health and mental equilibrium of thousands of people. The Court was not dealing with an accused charged with commission of any minor offence where he being not a habitual offender may have some relevance. But it is really inconsequential for a drug trafficker and smuggler. The reasons given by the High Court to reduce the sentence, according to us, have no foundation. The inevitable conclusion is that the appeal deserves to be allowed which we direct. To put it differently, the sentence imposed by the trial Court is restored. The respondent has been released pursuant to the High Court's judgment. He shall surrender to custody to suffer remainder of the sentence as awarded by the trial Court. The appeal is allowed."

10.It was further argued by the learned counsel appearing for N.C.B. that the accused persons does not deserves any sympathetic consideration from this Court as they are not innocent and both are involved in crime.

11.Considered the submissions advanced by the learned counsel for the parties. As per the Narcotic Drugs and Psychotropic Substances Act Controlled Substances have been defined under Section 2 (viid) of the said Act, which reads as under:-

"Controlled Substances" means any substance which the Central Government may, having regard to the available information as to its possible use in the production or manufacture of narcotic drugs or psychotropic substances or to the provision of any International Convention, by notification in the Official Gazette, declare to be a controlled substance;]"

12.Moreover, the power to control and regulate controlled substances has been defined under section 9-A of the said Act, which reads as under:-

" 9A. Power to control and regulate controlled substances.- (1) If the Central Government is of the opinion that, having regard to the use of any controlled substance in the production or manufacture of any narcotic drug or psychotropic substance, it is necessary or expedient so to do in the public interest, it may, by order, provide for regulating or prohibiting the production, manufacture, supply and distribution thereof and trade and commerce therein.

(2) Without prejudice to the generality of the power conferred by sub-section (1), an order made thereunder may provide for regulating by licences, permits or otherwise, the production, manufacture, possession, transport, import, inter-State, disposal or acquisition of any controlled substance."

13.From perusal of the record it is apparent that the statement of the accused/applicants have been recorded under section 67 of the N.D.P.S. Act and from their statements it is apparent that they are involved in transportation of controlled substance Pseudoephedrine which is used for manufacture of Psychotropic Substance, Amphetamines and Methamphetamines, which have find place at Sl. No.152 and 159 in the list of Psychotropic Substance.

14.So far as the contention of the learned counsel for applicant with regard to the following of mandatory provision of Section 50 of the N.D.P.S. Act is concerned dos not have force as the same appears to have been followed by the officials of the N.C.B., and the attention of the Court was drawn towards the notice which was served on the accused/applicants under Section 50 of the N.D.P.S. Act. The involvement of the accused/applicants cannot be ruled out at this stage as when the consignment in question was not send to its destination the two accused/applicants went to inquire from the said Courier Company about the said consignment and further they have also requested the said Courier Company to return the consignment back to them for which they have also made endorsement, copy of the said endorsement is also annexed at page 120 Counter Affidavit. They were arrested by the N.C.B. officials. The case law of the Bombay High Court which has been cited by the learned counsel for applicant is not applicable in the present case as the same is distinguishable from the facts and circumstances of the present case. The case law which has been cited by the learned counsel appearing for N.C.B. of Hon'ble Apex Court in Union of India Vs. Kuldeep Singh (Supra) squarely covers the present case and the observation made by the Hon'ble Apex Court in the said case has to be followed in the present case and the applicants do not deserves any sympathy in view of their involvement in the heinous crime.

15.The contention of the learned counsel for applicant that there is no categorisation of commercial quantity and no minimum or maximum punishment has been prescribed for "controlled substances" under the N.D.P.S. Act does not hold good in view of the judgment of the apex Court in the Case of Union of India Vs. Kuldeep Singh (Supra).

16. The contention of the learned counsel for N.C.B. that the applicant No.1 is a refugee and the applicant no.2 is an illegal immigrant in the country, hence there is likelihood that they would flee from the country cannot be ruled out. Moreover, the trial is already in progress and two witnesses have already been examined by the trial court.

17. Without expressing any opinion on the merits of the case and considering the submissions advanced by the learned counsel for the parties, I find no ground for grant of bail to the applicants Merry Lal Tan Tluang and Japheth involved in Case Crime No. 87 of 2012 (S.T. N.87 of 2013), under Sections 9A/25A/29 N.D.P.S. Act, Police Station N.C.B./D.Z.U., District Ghaziabad.

18. Accordingly, the bail application is rejected.

19. However, the trial court is directed to expedite the trial of the aforesaid case and conclude the same preferably within a period of six months from the date of production of a certified copy of this order.

Order Date :- 10.10.2013

Dev/-