Allahabad High Court
Mobin Ahmad Ansari vs Narcotics Control Bureau on 13 July, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on - 28.6.2021
Delivered on - 13.7.2021
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11722 of 2020
Applicant :- Mobin Ahmad Ansari
Opposite Party :- Narcotics Control Bureau
Counsel for Applicant :- Avinash Pandey
Counsel for Opposite Party :- Ashish Pandey
Hon'ble Saurabh Shyam Shamshery,J.
1. Hearing of the present bail application was concluded through video conferencing.
2. Applicant has approached this Court by way of filing present application to enlarge on bail in connection with Case Crime No.VIII/26/DZU of 2019, under Sections 20, 25, 29 NDPS Act, Police Station - N.C.B.D.Z,U Delhi, Dsitrict - Meerut.
3. It is alleged that on 12.7.2019 a truck bearing No. UP44 T 5143 was intercepted and 49 suspicious packets were recovered which were tested for Gaanza. Driver - Nadeem and cleaner - Aabid were arrested from the spot. Section 50 of the NDPS Act, 1985 (hereinafter referred to as 'the Act of 1985') was complied. During investigation, it was found that Registration Certificate of the truck was in name of applicant and he was arrested on 7.11.2019 for the commission of above-mentioned offences.
4. Shri Avinash Pandey, learned counsel for the applicant contended that truck was purchased on finance by the applicant in the year 2018. However, on 1.4.2019, it was sold to co-accused Mohd. Kaleem on monthly payment basis with the condition that transfer of registration would took place after complete payment, which remained unpaid.
5. It is further submitted that above fact was corroborated by statement of the co-accused. The notarized agreement of sale is also placed on record. Applicant has no connection with Gaanza recovered from the truck. He has no control on movement of the truck. Applicant has not received any benefit from the alleged crime. There are sufficient reasonable grounds for believing that applicant is not guilty, He is languishing in jail since 8.11.2019 and undertakes not to commit any offence in case bail is granted and also not to misuse the liberty of bail and will cooperate in trial.
6. Learned counsel for the applicant has relied upon the judgment passed by the Apex Court in Union of India vs. Shri Shankar Keshari, (2007) 7 SCC 798.
7. Shri Ashish Pandey, learned counsel for the N.C.B. has opposed the bail who submitted that Advocate Notary has denied her signature on the alleged agreement of sale of the truck. Applicant had knowledge about the illegal trade of co-accused Kaleem and he was enjoying benefit of illegal trade also. There is no ground for satisfaction as required u/s 37 of 'the Act of 1985'. Learned counsel further pointed out that bail granted to co-accused Nadeem Ansari is without application of legal norms of Section 37 of 'the Act of 1985'. Therefore, even no case for parity is made out.
8. Heard learned counsel for the respective parties and perused the material available on record.
9. The Hon'ble Apex Court as well as this Court in various judgments have emphasized that the Courts, before granting bail for the offences under NDPS Act, specially in the cases where confiscated material is above than commercial value, should satisfy the two pre-conditions enumerated in Section 37(1)(b) of NDPS Act, which are :
(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."
(See, Union of India vs. Prateek Shukla, AIR 2021 SC 1509; Narcotics Control Bureau vs. Laxman Prasad Soni, Criminal Appeal No. 438-440 of 2021, decided on 19.04.2021; and, order dated 22.06.2021 passed by Coordinate Bench of this Court in Criminal Misc. Bail Application No. 14291 of 2021, Zahid vs. Union of India).
10. The contention of learned counsel for the applicant that truck was sold to co-accused Kaleem was based on alleged notarized sale agreement. However, during investigation, the Advocate Notary had denied her signature in the agreement. Therefore, prima facie, the said document is a forged document and cannot be relied upon. Applicant had knowledge of illicit trade of co-accused - Kaleem and his truck was used in the crime. The quantity of Gaanza received, is above than commercial quantity. The expressions "reasonable ground" in Section 37 of 'the Act of 1985' means something more than prima facie ground.
11. In the present case, applicant has knowingly allowed his vehicle to be used in illicit trade of Gaanza. Section 20 of 'the Act of 1985' provides punishment for contravention in relation to cannabis plant and cannabis which include transports of cannabis also. Section 25 of 'the Act of 1985' provides punishment for allowing premises etc. to be used for commission of an offence, which includes to permit any conveyance knowingly to be used for commission of an offence and lastly Section 29 of 'the Act of 1985' provides punishment for abetment and criminal conspiracy which also included party to conspiracy to commit the offence. In the present case, applicant has knowingly allowed his vehicle to be used for transporting cannabis plants and cannabis and become a party to conspiracy to commit offence punishable under the Chapter III of 'the Act of 1985'. Therefore, there is more than prima facie case against the applicant. There is no reasonable ground to believe that applicant is not guilty of offence and would not commit any offence during bail. Therefore, in the present case, the two pre-conditions referred above, are absent. Hence, no case for bail is made out.
12. It is also to note here that parity is not a sole ground to grant bail especially when the bail granted to co-accused was without any reason in regard to existence of pre-conditions of Section 37 of 'the Act of 1985'. [See judgment dated 6.7.2021 passed in Dheeraj Kumar Shukla (Criminal Misc. Bail Application No.42092 of 2020) by a co-ordinate Bench of this Court].
13. In view of the above, the application is dismissed.
Order Date :- 13.7.2021
Rishabh
[Saurabh Shyam Shamshery, J.]
