Kaptan @ Bheema Rajpoot vs State Of U.P.
2021 Latest Caselaw 3624 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10529 of 2021
 

 
Applicant :- Kaptan @ Bheema Rajpoot
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sudhir Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

1. Heard learned counsel for the applicant and learned Additional Government Advocate for the State and perused the record of the case.

2. By means of this application, the applicant, who is involved in Case Crime No. 959 of 2020, under section 21/22 of Narcotic Drugs & Psychotropic Substances Act, police station Kotwali Farrukhabad, district Farrukhabad, is seeking enlargement on bail during the pendency of trial.

3. The case of the prosecution is that on 17.10.2020 at 12.10 a.m., first information report has been lodged by Sub-Inspector Ravindra Kumar against the applicant as Case Crime No. 959 of 2020, for the alleged offence under sections 21/22 of Narcotic Drugs and Psychotropic Substances Act at police station Farrukhabad Kotwali, district Fatehgarh stating inter alia therein that on 16.10.2020 when he was busy in maintaining law and order situation, he got an information from the informer that Kaptan alias Bheema, who is absconding in a case lodged at Kotwali, Farrukhabad, on whom a reward of Rs. 2000/- has been declared will arrive here from his village Papiyapur. Believing on the information of the informer, he tried to collect public witnesses, but in vain. However, he along with other police personnel reached at culvert situated between Papiyapur and Gharampur and waited for the accused to come. After some time, they saw a person coming from Papiyapur and on being asked by the police to stop, he tried to flee away, but was apprehended, who disclosed his name as Kaptan alias Bheema Rajpoot, son of Late Shivram, resident of Shyam Nagar, Kowali Farrukhabad, district Farrukhabad. He also stated that he is an accused in Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471 IPC registered at Kotwali Farrukhabad and he has a reward of Rs. 2,000/- on his head. The FIR further alleges that as the applicant was in possession of the intoxicated powder, he was informed about his rights and was given option for getting his search by a Gazetted Officer or Magistrate, but he denied to be searched by a Gazetted Officer or the Magistrate. Thereafter, the applicant was searched and from his right pocket of the pant, one silver coloured polythene containing brown colour powder was recovered, to which applicant told that it was intoxicated powder Alprazolam and he used to sell the recovered intoxicated powder to addicted persons, by which he fulfill his desires. On taking weight of recovered powder, it was found 300 gms., out of which 20 gms. was taken out for sampling and remaining 280 gms of recovered intoxicated powder was sealed in a separate silver coloured polybag and Rs. 1900/- recovered from the applicant was also sealed in a cloth. The applicant has also disclosed that he has a gang and involved in committing theft. In the first information report, it is also mentioned that the accused-applicant along with his companions, namely, Arun Kashyap, Shiva Chotu alias Sahab Singh, have committed theft in Farrukhabad, and thereafter, he also committed theft of jewellery and money in the house of Arjun Nagla and Vishram Rajpoot. When he was asked about the jewellery and money, he disclosed that he sold the alleged jewelleries to passer-by for fear of being caught and only Rs. 1900/- has been left, which was connected to Case Crime No. 662 of 2020, under sections 457, 380 and 411 IPC. In the first information report, it is further mentioned that the accused-applicant also confessed the incident dated 01.09.2020 of police encounter case, in which another accused Lucky Pal was arrested and he was succeeded in fleeing away from the spot, in which motorcycle and country made pistol had fallen down at the spot, regarding which a case being Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471 IPC has been registered against them at police station Kotwali Farrukhabad. Thereafter, after complying with the directions of Hon'ble Supreme Court/Human Rights Commission, the accused was arrested and arrest memo was prepared at the spot.

4. It has been contended on behalf of the applicant that as per first information report, on 16.10.2020 at 10.30 p.m., the applicant was apprehended by the police and on taking search of the applicant 300 gms of Alprazolam is alleged to have been recovered from his possession. The main substratum of argument of learned counsel for the applicant is that at the date and time of alleged recovery of 300 gms of Alprazolam, the applicant was already in jail since 01.09.2020 in connection with another Case Crime No. 858 of 2020, therefore false implication of applicant is apparent and as such, the applicant is entitled to be released on bail.

5. On the other hand, learned Additional Government Advocate refuting the aforesaid submissions of learned counsel for the applicant submitted that the factual aspects of the case as argued on behalf of applicant is wholly false and frivolous on the face of record itself. Learned Additional Government Advocate vehemently opposed the prayer for bail of the applicant by contending that it is wrong to say that on the date and time of recovery of 300 gms of Alprazolam from the possession of applicant in the present case, he was in jail regarding the incident dated 01.09.2020, for which case being Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471 IPC has been lodged. In fact, the applicant was absconding in that case. The contention as raised on behalf of applicant is also contradictory to the averments mentioned in paragraph 8 of the bail application, wherein it is stated that the applicant is doing private job in the State of Haryana and on 12.10.2020, the police has arrested the applicant from Haryana and illegally detained him for five days, and thereafter, he was implicated in the present case on 17.10.2020.

6. Learned Additional Government Advocate has filed counter affidavit annexing therewith the copy of the report of Forensic Science Laboratory, Jhansi dated 23.11.2020 of the recovered contraband wherein it is mentioned that the alleged recovered contraband is Alprazolam weighing 19.67 gms.

7. Learned Additional Government Advocate also pointed out that apart from present case, the applicant has a criminal history of 35 cases, details of which are as given below:

1. Case Crime No. 1875 of 2008, under sections 457, 380, 411 IPC police station Kotwali, district Farrukhabad.

2. Case Crime No. 1955 of 2008, under sections 457, 380, 411 IPC, police station Kotwali, district Farrukhabad.

3. Case Crime No. 1037 of 2009, under sections 41, 102 Cr.P.C., police station Kotwali Fatehgarh, district, Farrukhabad.

4. Case Crime No. 2027 of 2011, under sections 147, 148, 323, 504, 506, 452 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

5. Case Crime No. 264 of 2012, under sections 380, 411 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

6. Case Crime No. 461 of 2012, under section 3/25 Arms Act, police station Kotwali Farrukhabad, district Farrukhabad.

7. Case Crime No. 718 of 2012, under section 18/20 of N.D.P.S. Act, police station Kotwali Farrukhabad, district Farrukhabad.

8. Case Crime No. 20 of 2012, under sections 457, 380 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

9. Case Crime No. 310 of 2013, under section 21/22 of N.D.P.S. Act, police station Kotwali Farrukhabad, district Farrukhabad.

10. Case Crime No. 16 of 2014, under section 21/22 of N.D.P.S. Act, police station Kotwali Farrukhabad, district Farrukhabad.

11. Case Crime No.154 of 2015, under sections 457, 380, 411 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

12. Case Crime No. 166 of 2015, under sections 401, 379 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

13. Case Crime No. 822 of 2015, under sections 457, 380, 411 IPC police station Kotwali Farrukhabad, district Farrukhabad.

14. Case Crime No. 284 of 2015, under sections 457, 380, 411 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

15. Case Crime No. 894 of 2015, under section 307 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

16. Case Crime No. 895 of 2015, under section 3/25 Arms Act, police station Kotwali Farrukhabad, district Farrukhabad.

17. Case Crime No. nil of 2015, under sections 41and 102 Cr.P.C. and section 411 IPC, police station Farrukhabad, district Farrukhabad.

18. Case Crime No. 1008 of 2015, under section 3(1) of U.P. Gangster and Anti-Social Activities (Prevention) Act, police station Kotwali Farrukhabad, district Farrukhabad.

19. Case Crime No. 151 of 2015, under sections 307, 401 IPC, police station Kotwali Fatehgarh, district Farrukhabad.

20. Case Crime No. 152 of 2015, under section 25 Arms Act, police station Kotwali Fatehgarh, district Farrukhabad.

21. Case Crime No. 829 of 2015, under section 386 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

22. Case Crime No. 831 of 2015, under section 401 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

23. Case Crime No. 832 of 2015, under sections 147, 307 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

24. Case Crime No. 824 of 2015, under section 387 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

25. Case Crime No. 1033 of 2015, under section 3(1) U.P. Gangster and Anti-Social Activities (Prevention) Act, police station Kotwali Farrukhabad, district Farrukhabad.

26. Case Crime No. 827 of 2015, under sections 392, 411 IPC, police station Kotwali Farrukhabad, district Farrukhabad.

27. Case Crime No. 101 of 2015, under sections 457, 380, 411 IPC, police station Kotwali Fatehgarh, district Farrukhabad.

28. Case Crime No. 223 of 2015, under section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, police station Kotwali Fatehgarh, district Farrukhabad.

29. Case Crime No. 355 of 2016, under section 224 IPC, police station Kotwali Fatehgarh, district Farrukhabad.

30. Case Crime No. 379 of 2016, under section 307 IPC, police station Kotwali Fatehgarh, district Farrukhabad.

31. Case Crime No. 380 of 2016, under section 3/25 Arms Act, police station Kotwali Fatehgarh, district Farrukhabad.

32. Case Crime No. 218 of 2017, under sections 147, 148, 149, 332, 353, 333, 336, 397 IPC, police station Farrukhabad, district Farrukhabad.

33. Case Crime No. 662 of 2020, under sections 457, 380, 411 IPC, police station Farrukhabad, district Farrukhabad.

34. Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471 IPC, police station Farrukhabad, district Farrukhabad.

35. Case Crime No. 536 of 2020, under sections 457, 380 IPC, police station Farrukhabad, district Farrukhabad.

8. In paragraph 11 of the bail application, learned counsel for the applicant has disclosed the criminal history of the applicant of only two cases being Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471 IPC, police station Farrukhabad, district Farrukhabad and Case Crime No. Case Crime No. 662 of 2020, under sections 457, 380, 411 IPC, police station Farrukhabad, district Farrukhabad.

9. The applicant has not come with clean hands before this Court and has suppressed the aforesaid criminal history shown against him, in the bail application.

10. After having heard the learned counsel for the parties, I find the submission of learned counsel for the applicant that at the date and time of recovery of 300 gms of Alprazolam from the possession of the applicant, he was already in jail since 01.09.2020 is against the evidence on record.

11. After perusing the counter affidavit filed on 15.03.2021 by learned Additional Government Advocate, learned counsel for the applicant submits that on account of wrong instructions given by Pairokar of the applicant, he had given such statement before the Court, whereas he admits that correct fact is that at the date and time of alleged recovery in this case from the possession of the applicant, the applicant was not in jail.

12. It is also relevant to mention that on account of recovery of commercial quantity of Alprazolam in the instant case, the provisions of Section 37 of the N.D.P.S. Act are attracted, which is in addition to Section 439 of Cr.P.C. and mandatory in nature.

13. In view of Section 37 of the N.D.P.S. Act, 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. Section 37 of the N.D.P.S. Act 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."

14. The expression 'reasonable grounds' has not been defined in the N.D.P.S. Act, but the Hon'ble 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" in paragraphs 13 and 14, which are quoted herein below:

"13.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". 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."

15. Here, it is also relevant to mention that to check the menace of dangerous drugs flooding in the market, strict conditions have been added in Section 37 of the N.D.P.S. Act. Apex Court considering the provisions of Section 37 of the N.D.P.S. Act, in case of Union of India Vs. Ram Samujh reported in 1999 (9) SCC 429, 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:

"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."

16. Considering the facts and circumstances of the case, submissions advanced on behalf of parties, gravity of the offence and severity of the punishment, I do not find any good ground to grant bail to the applicant.

17. Accordingly, the bail application is rejected.

18. However, considering the facts and circumstances of the case, the trial court is directed to make an endeavour to conclude the trial, expeditiously, preferably within a period of one year from the date of production of a certified copy of this order without granting any unnecessary adjournment to either of the parties.

19. The personal appearance of Sub-Inspector Ravindra Kumar and Sub-Inspector Ramkesh is hereby exempted.

20. Before parting with the case, I would like to express my disapproval and deprecate the conduct of the complainant of this case, i.e. Sub-Inspector, Ravindra Kumar. When this case was taken up for the first time on 23.02.2021, learned counsel for the applicant argued that the applicant has been falsely implicated in this case by showing a false recovery of 300 gms of Alprazolam from his possession on 16.10.2020, whereas on that date, he was in jail since 01.09.2020 in connection with Case Crime No. 858 of 2020, under sections 307, 504, 414, 467, 468, 471/34 IPC, registered at police station Farrukhabad, district Farrukhabad, in which the applicant was granted bail vide order dated 14.12.2020 passed by learned Sessions Judge, Farrukhabad.

21. In view of aforesaid facts, learned Additional Government Advocate was directed to file affidavit of Sub-Inspector, Ravindra Kumar, who has made the alleged recovery from the possession of applicant and also directed to communicate the order to Sub-Inspector, Ravindra Kumar within 48 hours for compliance and the case was directed to be listed on 08.03.2021.

22. However, on 08.03.2021, when the case was taken up, learned Additional Government Advocate informed the Court that the order dated 23.02.2021 had been communicated to Sub-Inspector, Ravindra Kumar vide letter dated 24.02.2021. Learned AGA further submits that in addition to the aforesaid letter, when he contacted Sub-Inspector, Ravindra Kumar on his mobile number his behaviour was very strange. However, he was neither present nor filed his affidavit as directed by order dated 23.02.2021. Learned AGA also informed the Court that complainant Sub-Inspector, Ravindra Kumar has been transferred to Police Station-Labadi, District-Etawah and in his place Sub-Inspector, Ramkesh Yadav has been posted. Thereupon, this Court has passed an order directing the personal appearance of Sub-Inspector, Ravindra Kumar, presently posted as Sub-Inspector, Police Station-Labedi, District-Etawah and Investigating Officer of this case Ramkesh Yadav, presently posted as Sub-Inspector, Police Station-Kotwali, District-Farrukhabad on the next date of listing of this case, along with their affidavits in the matter. Sub-Inspector, Ravindra Kumar was directed to show cause in his affidavit as to why he has not complied with the order of this Court dated 23.02.2021 despite having the knowledge of the same.

23. On 15.03.2021, Sub-Inspector, Ravindra Kumar (the then Investigating Officer of this case), presently posted at police station Labedi, district Etawah and the present Investigating Officer of this case Sub-Inspector, Ramkesh Yadav, posted at police station Kotwali Farrukhabad, district Farrukhabad have appeared in Court personally in compliance of the order of this Court dated 08.03.2021. Personal affidavit of Sub-Inspector, Ravindra Kumar and counter affidavit sworn by Sub-Inspector, Ramkesh, were filed in the matter.

24. Sub-Inspector, Ravindra Kumar, posted at police station Labedi, district Etawah (the then Investigating Officer of this case), filed his personal affidavit stating therein that vide order dated 07.03.2021 of Senior Superintendent of Police, Etawah, he was deployed in VVIP duty of Hon'ble the Chief Minister of Uttar Pradesh, which was scheduled to be held on 09.03.2021 in Jhansi Region, district Jhansi/Jalaun/Lalitpur. It is also admitted by Sub-Inspector, Ravindra Kumar in the personal affidavit that the order dated 23.02.2021 was communicated to him on his Mobile No. 8887670542 by the Station House Officer, police station Kotwali, district Farrukhabad from his Mobile No. 9451019708 and entry of the same was also made in G.D. No. 033 dated 05.03.2021 at 10.53 O'clock.

25. Today, Sub-Inspector, Ravindra Kumar has also admitted that on 24.02.2021, learned Additional Government Advocate has informed about the order dated 23.02.2021 on his aforesaid mobile number.

26. Despite having knowledge of the order of this Court dated 23.02.2021, neither Sub-Inspector Ravindra Kumar, has complied with with the order dated 23.02.2021 passed by this Court nor any affidavit on his behalf was filed when the matter was taken up on 08.03.2021. It is not mentioned anywhere in the personal affidavit of Sub-Inspector, Ravindra Kumar that when this Court passed the order on 23.02.2021 whether any programme of the Hon'ble the Chief Minister was fixed and even on 08.03.2021, he did not inform the learned AGA that he has been deployed in VVIP duty of Hon'ble the Chief Minister to be held on 09.3.2021 at Jhansi region. It was also not mentioned in the affidavit that whether he has brought to the notice of the Senior Superintendent of Police, Jhansi about the order of this Court dated 08.03.2021 so that he may be exempted from the VVIP duty.

27. In view of the aforesaid latches and unbecoming behaviour of Sub-Inspector, Ravindra Kumar, this Court records its disapproval, displeasure and deprecate his conduct and he is warned to be careful in future.

28. Office is directed to transmit a copy of this order to the Senior Superintendent of Police, Etawah.

Order Date :- 16.3.2021

Sazia