Rashid vs State Of U.P.
2017 Latest Caselaw 5334 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

													A.F.R.
 
Court No. - 13
 
Case :- CRIMINAL APPEAL No. - 2066 of 2017
 
Appellant :- Rashid
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Haridwar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Order on Crl. Misc. Bail Application No.131206 of 2017

This bail application has been moved on behalf of the accused appellant for being granted bail during the pendency of Appeal. The accused appellant has been awarded punishment in S.T. No. 101 of 2016 (State Vs. Rashid) under Section 489 (C) I.P.C. arising out of Case Crime No. 133 of 2015, P.S. Syana, District Bulandshahr and also in S.S.T. No. 310 of 2015 (State Vs. Rashid) under Section 22 (C) of N.D.P.S. Act arising out of Case Crime No. 131 of 2015, P.S. Syana, District Bulandshahr .

The accused has been awarded punishment by the court below by holding the trial jointly in above mentioned S.T. No. 101 of 2016 and S.S.T. 310 of 2015 and the accused has been awarded punishment of 7 years R.I. and fine of Rs. 10,000/- under Section 489 (C) I.P.C. and in default of payment of fine additional S.I. of three months. Further, under Section 22 (C) N.D.P.S. Act, he has been punished with 15 years R.I. and fine of Rs. 1,50,000/- and in default of payment of fine S.I. of 3 years.

The prosecution version in brief is as follows:

The police party of Syana Police Station while patrolling found information from Mukhbir (informer) about the accused and arrested him on 29.3.2015 at 7.10 p.m. in Syana School Hanifgarhi area and recovered from him 1.850 kilogram intoxicating powder on the same day in 2 small bags (material Exhibit - 9 and material Exhibit - 10) and fake currency worth Rs.23,200/- kept in a bag. He was offered to be searched in presence of the Gazetted Officer/ Magistrate, but he declined and gave his written consent (Exhibit Ka - 2 ) to be examined by S.H.O. Shri D P Singh (P.W.1) and his companions in police party. The recovery memo (Exhibit Ka - 1 ) was prepared on the spot. On the basis of said recovery memo Case Crime No. 131/2015 under section 8/22 of NDPS Act and Case Crime No. 133 of 2015 under Section 489 (C) IPC was registered and its entry was made in GD No. 44 at 10 PM (Exhibit Ka - 6). Thereafter at the instance of PW 1, the site plan was prepared by investigating officer, SI Shri Krishna Pal Singh (PW 5). On 20/05/2015 report from the forensic science lab was received and after investigation the charge sheet (Exhibit Ka 9) was filed. As many as 5 witnesses were examined. The learned Court below on the basis of evidence on record has held the recovery of forged currency notes of above-mentioned amount and 1.850 kilogram diazepam proved from the accused and has awarded above punishment.

The learned counsel for the appellant has argued on the bail along the following points:

A difference was found in the quantity of sample sent to the Forensic Science Lab for testing as it turned out to be 20.18 gram while the sample sent was 20 gram of intoxicating substance (Diazepam) .

The recovery is alleged to have been made on 29.3.2015 but regarding the same it has not been explained by the witnesses P.W. 1 and P.W.2 as to when the same was sent to F.S.L. and in this regard reliance has been place upon 2004 CRI. L. J. 3555 (Om Prakash Vs. State of U.P.), in which in para 17, following is mentioned and on that basis along with other grounds, the appeal of conviction was set aside by this Court:

"I further find that appellant was arrested and CAC was recovered from his possession on 26.11.1995 and sample was taken out on the spot. Subsequently, sample and recovered cake were deposited at the P.S. Kotwali on the same day, however, sample was received at the F.S.L. on 23.12.1995 i.e. after about one month and this delay in sending the sample for analysis was not explained satisfactorily by the prosecution by the prosecution"

Further, it is argued that no public witness of that locality had been taken to the place of arrest at the time of recovery from the accused appellant. It is further argued that the provisions given under Section 42 and 50 of the N.D.P.S. Act have not been complied with, as no opportunity was given to accused to be searched in the presence of any magistrate. The entire recovered material was sent to the F.S.L. instead of taking out sample which is against the provisions of the N.D.P.S. Act. It is further stated that he has remained in Jail from 29.3.2015 to 3.1.2017 and thereafter again since 26.3.2017 he is confined to jail continuously.

On behalf of the learned A.G.A., it has been responded with regard to non compliance of the provisions under Section 50, N.D.P.S. Act that since recovery was made from the bag which the accused appellant was carrying with him, the same will not be treated to be covered under Section 50 of the Act because the expression "in person" in such kind of recoveries would not cover recovery from the bag, suitcase or any other such thing which the accused might be carrying . This provision is applicable only when the recoveries are made from the body of the person. Arguing so, reliance is placed on law laid down by Supreme Court in 1999 (6) SCC Page 172, State of Punjab vs Baldev Singh It provides as follows:

"12 . On its plain reading, section 50 would come into play only in the case of search of a person as distinguished from search of any premises etc.. However, if the empowered officer, without any prior information as contemplated by section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, requirements of section 50 of the Act are not attracted."

As regards difference of 0.18 mg found in the quantity at Forensic Science Lab, it has been stated that such negligible difference may be possible because of difference in weighing machines. It is further argued that since the time of recovery, within how much period of time, the sample is required be sent to F.S.L. for being tested, no specific law may be found on this point , although it should be sent at the earliest so as to leave no chances of tampering. Therefore any delay in sending the said recovered material to be tested in F.S.L., would not be taken to be any infirmity in the prosecution version. However, according to him, the recovery was made on 29.3.2015 and the same day its sample was sent for being tested to the F.S.L. It is further stated that the evidence is on record to the effect that the police party did try to contact S.D.M. and other higher authorities on phone but they could not be contacted, hence, the recovery from the accused cannot be treated bad in the eye of law and it would not be hit by the provision of section 42(2) of N.D.P.S. Act.

Heard the arguments of learned counsel of both the parties and perused the entire record.

It may be stated at the outset that no argument was made by the learned counsel for the accused appellant in regard to bail under section 489 (C) IPC, hence the same is not being considered. Moreover it is mentioned that the punishment awarded under section 489 (C) IPC is smaller than the punishment awarded for offence under section 22 (C) of NDPS Act, therefore if the accused is able to get himself bailed out under the section which provides larger punishment, he would easily be able to get bail for an offence carrying a smaller punishment.

The judgement of the learned Court below reveals that it has held the recovery of 1.850 kilogram diazepam proved on the basis of the statements of PW 1 and PW 2 holding that the procedure laid down under section 50 of NDPS Act was not necessary to be followed and it has also been observed by him that as per the report dated 19/5/2015 of the Forensic Science Lab, out of the total amount of intoxicating powder 1.850 kilogram, the 20 gram sample which was sent to the forensic science lab, the same weighed actually 20.18 grams there and the same was found to be diazepam in test.

It is apparent that the quantity of diazepam recovered from the accused is much above the commercial quantity, because the commercial quantity begins from 500 grams while the recovery made from the accused is 1.850 kilogram which is not possible to be planted as well.

The relevant provision under which the bail may be considered under the NDPS Act is mentioned in section 37 of the Act which is as follows: -

"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 9074) -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or 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 (i) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or another law for the time being in force, on granting of bail."

A perusal of above section would indicate that two conditions have to be kept in mind before releasing an accused on bail in a case of NDPS Act under section 37 which, as is apparent, involves recovery of commercial quantity of contraband substance, which are "there are reasonable grounds for believing that he is not guilty" and that "he is not likely to commit any offence while on bail".

In the case at hand for fulfilment of the first condition, it may be submitted that the accused having been held guilty on the basis of evidence on record, without dilation by the learned counsel for the appellant on each and every aspect of the case in appeal in the light of evidence recorded, it would be difficult to arrive on a conclusion that there may be reasonable ground to believe that the accused is not guilty. Primafacie after going through the judgment of the learned lower Court it does not appear that the accused is not guilty. As regards the second condition that he is not likely to commit any offence if released on bail, it would not be possible to comment upon the same in absence of any material on record, although in the counter affidavit filed from the side of the State there is no other case shown in the history of the cases pending against the accused except the ones which are before this Court.

It may also be submitted that besides the above criteria of bail, the normal criteria under the Criminal Procedure Code would also be applicable in the present case and for that the serious nature of the offence and the quantum of punishment are also necessary considerations while granting bail to the accused. On this parameter also it cannot be denied that the nature of offence is extremely serious because the drugs like diazepam are extremely injurious to the public at large. Therefore the people indulging in business of such category of drugs without licence would certainly be treated to be a menace to society. The quantum of punishment prescribed under law is imprisonment up to 20 years RI with minimum imprisonment of 10 years RI and fine of Rs. 1 lakh which may extend to 2 lakhs. Against this punishment the accused has been awarded 15 years rigorous imprisonment and fine of rupees one lakh fifty thousand. So, from the angle of quantum of punishment and the gravity of offence also, the accused does not seem to be entitled for bail. Another consideration for grant of bail is also the length of period the accused has remained in jail. On this count also as per the admission of the learned counsel for the appellant, hardly for close to 6 months the accused has so far been in jail, even if entire period for which he remained in jail, is taken into consideration. Therefore, it does not seem justified to this Court to grant bail to the accused during pendency of the appeal. The bail accordingly is declined.

Looking to the fact that Bail Application of the accused appellant has been dismissed, office is instructed to get the copy of paper book prepared on urgent basis so that the hearing of the bail may be expedited.

Order Date:- 11.10.2017/A.Mandhani