Ram Lubhaya vs State Of U.P.
2016 Latest Caselaw 4378 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 7225 of 2011
 

 
Appellant :- Ram Lubhaya
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.P. Singh
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Abhai Kumar, J.

Learned counsel for the appellant as well as learned A.G.A for the State are present.

Heard on the bail application and considered the submission made by learned counsel for the parties.

The appellant was convicted by the judgement of conviction dated 20.10.2011 in Case Crime No. 864 of 2008, Special Session Trial No. 98 of 2010 under Section 8/15 of N.D.P.S. Act, along with Case Crime No. 865 of 2008, Session Trial No. 758 of 2010, under Section 417 of I.P.C, Police Station-Garhmukteshwar, District -Ghaziabad, by Additional District & Sessions Judge, (T), Court No. 4, Ghaziabad.

It is submitted by learned counsel for the accused-appellant that nothing has been recovered from the possession of accused-appellant, the vehicle from which contraband was recovered was already sold by the appellant two years prior to the incident and it is submitted by the learned counsel that learned trial court has wrongly reached to the conclusion that transfer of vehicle has not been proved by the accused-appellant and also wrongly implemented the presumption provided under Section 54 of N.D.P.S Act. It is further submitted by learned counsel that a presumption under Section 54 of the Act can only be raised after the recovery of contraband from the possession of the accused-applicant and in support he has pressed his contention on the law propounded by Hon'ble Apex Court in the case of State of Punjab Vs. Baldev Singh - 1999 Law Suit (SC) 685. It has further been submitted by learned counsel that accused is languishing in jail since 18.12.2008. He has been convicted for 15 years and more than half period of the punishment has already been undertaken by the accused-appellant. Learned counsel has submitted that High Court Punjab & Haryana in a full Bench decision has clearly stated that in a case punishment to ten years have been awarded and accused is in jail for the six years then bail can be granted provided he is in jail for at least 15 monthshe after conviction.

Section 32-A of N.D.P.S Act, 1985 (to be referred as Act) clearly postulates that : ?Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted?.

Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as follows:-

Offences to be cognizable and non-bailable.

?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 2[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?.

Hon?ble Apex Court in so many judgments has clearly held that period of detention cannot be a ground for bail. Section 37 of the Act provides the procedure for bail.

Although Section 32 (A) of the Act clearly bars the power of the court to suspend remit or commute the sentence under the Act, but Hon'ble Apex Court in the case of Baldev Singh (supra) has given the power to the appellate court to grant bail only on the principles enunciated in Section 37 of the Act.

The Hon'ble Apex Court in the case of Dadu @ Tulsidas Vs. State of Maharashtra, 2000 (8) SCC 437 observed as follows :-

?8. To check the menance of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

ii) that he is not likely to commit any offence while on bail.

are satisfied."

Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment.?

On the principles of that if we consider the submissions made by learned counsel for the accused-appellant then that it is found that in this case recovery was not made from the possession of the applicant. It is not alleged that accused-appellant fled away from the place of incident by the car from which the recovery was made. On the basis of registration number of the vehicle, it was found that accused-applicant is owner of the vehicle and considering other fact regarding complicity of the appellant the charge-sheet was submitted against the accused-appellant. The law propounded by Hon?ble Apex Court in the case of Baldev Singh (supra) clearly shows that presumption of Section 54 cannot be done suo-motu, there should be recovery of contraband from the possession of accused. In this case the learned trial court observed that accused-appellant failed to prove the transfer of his vehicle to other person and on that basis the presumption against the appellant was drawn, whereas there is specific case of the accused appellant that vehicle was transferred two years prior to the incident. In the circumstances, this court is of the view that there are grounds for believing that appellant might not have been guilty of the offences and in the circumstances if an undertaking is being given by the accused-appellant that during the bail he will not commit any offences of same nature again, the bail can be grant to the accused-appellant

Seeing the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material brought on record, without expressing any opinion on merits of the case, it is a fit case for grant of bail.

Let the applicant ? Ram Lubhaya, involved in Case Crime No. 864 of 2008 (Special S.T. No. 98 of 2010), under Section 8/15 of N.D.P.S Act, and in Case Crime No. 865 of 2008 (S.T. No. 758 of 2010), under Section 417 of I.P.C. Police Station ? Garhmukteshwar, District ? Ghaziabad, be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions: -

1. The applicant shall not tamper with the prosecution evidence.

2. The applicant shall not pressurize the prosecution witnesses.

3. The applicant shall appear on the date fixed by the trial Court.

In case of default of any of the conditions enumerated above, the order granting bail shall automatically stand cancelled.

Order Date :- 20.07.2016

Vinod.