Trishul Chandra Jaiswal vs Union Of India
2021 Latest Caselaw 8919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 45
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7399 of 2019
 

 
Applicant :- Trishul Chandra Jaiswal
 
Opposite Party :- Union of India
 
Counsel for Applicant :- Vikrant Neeraj,Ashok Kumar Pandey,Chandrakesh Mishra,Krishna Nand Singh,Satish Sharma
 
Counsel for Opposite Party :- Ashish Pandey
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Satish Sharma, learned counsel for the applicant, Mr. Ashish Pandey, learned Special Counsel for the Union of India/Narcotics Bureau of Investigation (for short "NCB"), as well as perused the entire material available on record.

This is the second bail application filed by the applicant. The first bail application filed by the present applicant has been rejected as withdrawn by this Bench vide order dated 24th October, 2019 passed in Criminal Misc. Bail Application No. 38334 of 2019.

The applicant-Trishool Chandra Jaiswal, has filed this second bail application with a prayer to enlarge him on bail in Case Crime No. 04 of 2016, under Sections 8/20/27A/29/60 of Narcotics Drugs and Psychotropic Substances Act, 1985 ( for shot NDPS Act"), Police Station-Industrial Area, District-Allahabad/Prayagraj, during the pendency of the trial.

In nutshell, prosecution case is that the complainant is an Intelligence Officer of NCB, Zonal Office Lucknow. On 9th February, 2016 at 1000 hrs. Superintendent of NCB, Zonal Unit at Lucknow received a specific information through Zonal Director, NCB, Lucknow from STF, Allahabad telephonically that two persons resident of Manda, Allahabad are suspected to carry huge quantity of Ganja concealed in Mahindra pickup vehicles bearing Registrar Nos. U.P. 64 H 8131 and U.P. 66 K 6415. The said persons with the above said vehicles were to pass from Mawaiya ADA crossing between 1500-1700 hrs. The information was recorded in writing and passed to the higher authorities. As per the telephonic direction of Zonal Director, a team was constituted. The said team left Lucknow and reached Mawaiya ADA crossing at 1730 hrs. on the same day, where the said team met with the team of STF, Allahabad and Station House Officer, Police Station-Industrial Area, Allahabad along with Sub-Inspector. The Sub-Inspector, STF, Allahabad apprised the team of NCB that on 9th February, 2016 at 1645 hrs, they intercepted two pick up vehicles bearing registration nos. U.P. 64 H 8131 and U.P. 66 K 6415, wherein Ganja has been concealed. Two persons were also found in the vehicles. The team of NCB reached near the vehicles and on asking of the team of NCB, the person who was driving the vehicle no. U.P. 64 H 8131 disclosed his name as Narendra Kumar and the person who was driving the vehicle no. U.P. 66 K 6415 disclosed his identity as Bhai Lal. The team of NCB requested the local person to witness the procedure of search and seizure under Section 50 of NDPS Act but no one agreed. Thereafter, notices under Section 50 of the NDPS Act were served upon Narendra Kumar and Bhai Lal to the said notice, both persons responded in writing that they do not want ot be searched before any Magistrate or Gazetted Officer and NCB team itself may carry out their personal search. Thereafter personal search of above persons were carried out. During search, two mobile phones, Rs. 1200/- and Rs. 1800/- were found from the personal possession of Narendra Kumar and Bhai Lal respectively. On the indication of Narendra Kumar and Bhai Lal, total 354.205 kgs. Ganja was recovered from both the vehicles. After recovery the statements of both the persons were recorded under Section 67 NDPS Act. In the said statements both the accused persons have admitted their involvement in illicit trafficking of above seized 354.205 kgs. Ganja, which they received from the Jungle area, 150 km. away from Sambalpur, Orissa by Trishul Chand Jaiswal (applicant herein), son of Vijay Lal Jaiswal and were to deliver the same to Trishul Chand Jaiswal (applicant herein) at Village-Tikari, Post-Babhani Hethar, Police Station_manda, District-Allahabad (U.P.). After recording of the confessional statements of both the persons under Section 67 of NDPS Act, the team of NCB arrested them. The name of Kapoor Chand Jaiswal, who happens to be brother of Trishul Chand Jaiswal, also surfaced during the course of investigation,. Some seized material has been sent for chemical examination of which the report of the Joint Director, Government Opium & Alkaloid Works, Ghazipur (UP) dated 26th February, 2016 was received in the Zonal Office, NCB at Lucknow on 29th February, 2016. The report shows that on the basis of chemical and cinematographic examination of the samples, it is concluded that each of the two sample under reference is Ganja (Cannabis) within the meaning of NDPS Act, 1985. The complaint case being Case Crime No. 04 of 2016, under Sections 8/20/27A/29/60 of Narcotics Drugs and Psychotropic Substances Act, 1985 ( for shot NDPS Act"), Police Station-Industrial Area, District-Allahabad/Prayagraj has been filed before the District Judge by NCB against four persons, namely, Narendra Kumar, Bhai Lal, Trishul Chand Jaiswal and Kapoor Chand Jaiswal.

In support of the present bail application, learned counsel for the applicant submits that neither the applicant has been arrested from the spot nor any intoxicating material has been recovered from his possession. The applicant has been falsely implicated and story has been built up by the officers and official of NCB, STF Allahabad and the Police Station-Manda, Prayagraj in order to only obtain appreciation from their superior authorities. The mandatory provisions of NDPS act has not been complied with in the present case. Apart from the above, learned counsel for the applicant submits that the co-accused, Kapoor Chand Jaiswal has already been enlarged on bail by a Coordinate Bench of this Court vide order dated 13th December, 2018 passed in Criminal Misc. 18546 of 2018. The case of the present applicant is more or less identical to that of the aforesaid co-accused. As such, the present applicant may also be enlarged on bail. The learned counsel for the applicant has further argued that since the applicant is in jail since 3rd November, 2018, therefore, considering the long period of detention as well as the status of the trial which is not likely to be concluded in near future, the applicant be enlarged on bail. The applicant has criminal antecedents of 13 cases but the same have satisfactorily been explained in paragraph-22 of the affidavit accompanying the present bail application. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail.

Per contra, Mr. Ashish Pandey, learned counsel for the NCB has opposed the bail prayer of the applicant. He submits that the parity claimed by the learned counsel for the applicant is liable to be rejected on the ground that the grant of bail is not a mechanical act and principle of consistency cannot be extended to repeating a wrong order. If the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, it will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. Mr. Pandey has also placed reliance upon following judgments of the Apex Court as well as of this Court:

a) In Chandigarh Administration Vs. Jagjit Singh; AIR 1995 SC 705, the Apex Court in paragraph-8 has held as follows:

"....... if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal and unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order."

"...... The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition.

"..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law."

b) In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:-

"The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused-respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier."

c) In Satyendra Singh Vs. State of U.P.; 1996 A. Cr. R.867 also, the following observations have been made by this Court in para 16:-

"The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judicially but rule of parity is not applicable in all the cases, where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity can not be a sole ground and is one of the grounds for consideration of the question of bail."

Even otherwise, Mr. Pandey, learned counsel for the NCB has pointed out that the Coordinate Bench while granting bail to the co-accused, Kapoor Chand Jaiswal of which, applicant claims parity, has not considered the mandatory provisions of Section 37 of NDPS Act. There is no dispute that commercial quantity of Ganja is 20 Kgs, but in the present case the recovered and seized contraband is 354.205 kgs. of Ganja from two Tata pickup vehicles, which is much more than the commercial quantity, therefore, provisions of section 37 of Narcotics Drugs & Psychotropic Substances Act are attracted in this case, which is in addition to section 439 of Cr.P.C. and mandatory in nature. He, therefore, submits that before granting bail for the offence under N.D.P.S. Act twin conditions as provided under Section 37(1)(b) (i) and (ii) have to be satisfied.

Mr. Pandey has referred to Section 37 of the N.D.P.S. Act, which is quoted herein below:

"37. Offences to be cognizable and non-bailable. - (1) 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 [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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

Mr. Pandey submits that on several occasions, the Apex Court has considered the issue relating to provisions of Section 37 of the N.D.P.S. Act and after wholesome treatment laid down guidelines in this regards, which would be useful to quote herein-below:

i. The expression 'reasonable grounds' has not been defined in the N.D.P.S. Act, but the Apex Court in the case of Union of India Vs. Rattan Mallik @ Habul, reported in 2009 (1) SCC (Crl) 831, has settled the expression "reasonable grounds". Relevant paragraphs no. 12, 13 and 14 are quoted herein below:

"12.It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".

13.The expression `reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv Shanker Kesari, 2007(7) SCC 798] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.

14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."

ii. In case of Union of India Vs. Ram Samujh reported in 1999 (9) SCC 429, the Apex Court has made following observations in paragraph 7 of the said judgment, which are reproduced herein below:-

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary. Union Territory of Goa. [1990] 1 SCC 95 as under:

"24.With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."

iii. In Union of India Vs. Shiv Shankar Kesari, reported in (2007) 7 SCC 798, the Apex Court elaborated and explained the conditions for granting of bail as provided under Section 37 of the Act. Relevant paragraph Nos. 6 and 7 are extracted here in below :

"6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.

7. The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged."

iv. In recent decision of Apex Court in State of Kerala Etc. Vs. Rajesh Etc. reported in AIR 2020 Supreme Court 721, the Apex Court again considered the scope of Section 37 of N.D.P.S. Act and relying upon earlier decision in Ram Samujh (Supra) held as under:

"20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

So far as the next submission of the learned counsel for the applicant that since the applicant is in incarceration for a long time, he is liable to be released on bail is concerned, Mr. Pandey, the learned counsel for the NCB submits that the same also has no leg to stand on the ground that there is good authority to hold that mere long detention in jail does not entitle an accused to be enlarged on bail pending trial. It has been held to this effect in Vijay Kumar vs. Narendra and others, reported in 2002 (9) SCC 364, Ramesh Kumar Singh vs. Jhabbar Singh and others, reported in 2004 SCC (Cri) 1067 and Girand Singh vs. State of U.P., reported in 2010 (69) ACC 39.

Mr. Pandey, has also referred to the judgment of the Apex Court rendered in the case of Rajesh Ranjan Yadav vs. CBI through its Director reported in 2007 (1) SCC 70 wherein the Apex Court has held as under:

"..........None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail".

In view of the aforesaid authority of law, learned A.G.A. states that mere long incarceration of the applicant cannot be a ground to enlarge him on bail in such a heinous offence like Section 304-B I.P.C. He, therefore, submits that the present second bail application is liable to be rejected.

Mr. Pandey, learned counsel for the NCB next submits that although the applicant has explained his criminal history in paragraph-22 of the affidavit accompanying the bail application and copies of which have been brought on record by means of the supplementary affidavit, he is a habitual offender. He has also been involved in four cases of same nature like NDPS Act. On all occasions, he has obtained bail orders and misused the same repeatedly. If this Court releases him on bail, he will misuse the same again by indulging in another case. Learned counsel for the NCB also submits that after registration of the present complaint case, the NCB has summoned the applicant repeatedly, but he has not responded to the same.

To the submission made by the learned counsel for the applicant that no intoxicating material has been recovered from the possession of the applicant, Mr. Pandey submits that the applicant is being prosecuted for the offences under Sections 27A and 29 of NDPS Act. For the offences under Section 27A and 29 of the NDPS Act, recovery from the physical possession is not required. Thus, learned counsel for the NCB submits that on this ground alone, the applicant is not entitled for bail. In support of this ground, learned counsel for the NCB has placed reliance upon the latest judgment of the Apex Court in the case of Sudha Singh Vs. State of Uttar Pradesh & Another reported in (2021) 4 SCC 781. He has also referred paragraph nos. 8 to 11, which read as follows:

"8. This Court in Neeru Yadav vs. State of U.P. held that when a stand was taken that the accused was a history sheeter, it was imperative for the High Courts to scrutinise every aspect and not capriciously record that the accused was entitled to be released on bail on the ground of parity.

9. In Ash Mohammad vs. Shiv Raj Singh, this Court observed that when citizens were scared to lead a peaceful life and heinous offences were obstructions in the establishment of a well-ordered society, the courts play an even more important role, and the burden is heavy. It emphasized on the need to have a proper analysis of the criminal antecedents of the accused.

10. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another, it was held that this Court ordinarily would not interfere with a High Court's order granting or rejecting bail to an accused. Nonetheless, it was equally imperative for the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the ratio set by a catena of decisions of this Court. The factors laid down in the judgment were:

(i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of accusations;

(iii) severity of the punishment in the event of a conviction;

(iv) danger of the accused absconding or fleeing, if granted bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of repetition of the offence;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger of justice being thwarted by grant of bail."

On the cumulative strength of the aforesaid, learned counsel for the NCB submits that this application of the applicant for grant of bail is liable to be rejected.

Having considered the submissions made by the learned counsel for the applicant, the learned counsel for the NCB, upon perusal of the evidence brought on record, authority of law mentioned herein above, the nature of the offence levelled against the applicant, the provisions of NDPS Act and criminal history of the applicant basically of the same nature, I do not find any good reason to exercise my discretion in favour of the accused-applicant. Thus, this second bail application stands rejected.

(Manju Rani Chauhan, J.)

Order Date :- 30.7.2021

Sushil/-