Vinay Kumar Singh vs U.O.I. Thru. Directorate Of ...
2022 Latest Caselaw 2589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 1.4.2022
 
Delivered on  12.5.2022
 

 
Court No. - 28
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3985 of 2020
 

 
Applicant :- Vinay Kumar Singh
 
Opposite Party :- U.O.I. Thru. Directorate Of Revenue Intelligencedrilko
 
Counsel for Applicant :- Pal Singh Yadav,Chandra Shekhar Pandey,Prathama Singh
 
Counsel for Opposite Party :- Digvijay Nath Dubey
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Chandra Shekhar Pandey, learned counsel for applicant and Sri Digvijay Nath Dubey, learned counsel for D.R.I.

2, Applicant seeks bail in DRI Case No. 01 of 2020, U/S 8/20 of Narcotic Drugs & Psychotropic Substances Act, Police Station- D.R.I., Gomti Nagar, District- Lucknow, during the pendency of trial.

PROSECUTION STORY:-

3. On the basis of the information received by the department of revenue intelligence, a team was constituted for intercepting the said truck no. UP 65 AR 6699. The team proceeded towards Kanpur Road at 3.15 am and reached at 4.00 am on 15.2.2020. The said truck was seen running on the said Kanpur road on 15.2.2020 at about 4.45 am, which was intercepted by the team. In addition to the driver, four more persons were seen sitting in the said truck. The person seated at the driver's seat was found to be Luv Kumar Singh, R/o District- Bhojpur, Bihar. The other person was identified as Vinay Kumar Singh (applicant) from Varanasi. The other three persons were identified as one Vakil Yadav, Jitendra Kumar and Jairam Yadav of Bihar. All the accused persons are said to have confessed before the officials of DRI that they have concealed ganja beneath the bananas that were loaded in the truck. Sections 42, 43, 49 of N.D.P.S. Act were complied with. It being a public place, it was considered better to take the search of the said truck at some secluded place. The team reached Lucknow office of the DRI at 5.30 am. In the presence of the witnesses and the accused persons, the said truck no. UP 65 AR 6699 was searched and photographs were taken. It was found that on the back side of the truck, there was another number plate bearing no. BR-26-C-8206. The chasis number of the said truck was found different to what was mentioned in the registration certificate of Truck No. UP 65 AR 6699 . One insurance certificate, fitness certificate and six receipts of toll plaza were also recovered. In addition to it, seven mobile phones were also recovered. On the search of the truck, 40 HDPE bags were found loaded in the said truck. After obtaining the said HDPE bags, there were many packets in each bag, which were taped. The packets were counted and they were found 239 in number. The weight of each packet was found between 5 kg to 6 kg and the total weight of the recovered contraband was 1252.82 kg. The said 239 packets were marked P1 to P239. Five lots of 40-40 packets each and one lot of 39 packets, in total, 6 lots were prepared and from each lot after extracting similar quantity, two samples of 24 grams each were prepared. All the 12 samples collected were marked and signed by the accompanying officials of DRI and the accused persons. It was told by the accused persons that the said truck no. UP 65 AR 6699/BR 26 C 8206 is registered in the name of applicant Vinay Kumar Singh. The five accused persons confessed to have robbed the said truck alongwith two other persons namely, Jagat Singh and Sujit Singh. The total price in grey market of the said contraband was found to be worth Rs. 1,87,92,300/-. The truck and the said contraband were seized by the officials of the DRI. The said proceedings were completed on 15.2.2020 at about 2.00 pm.

RIVAL CONTENTIONS:-

4. Learned counsel for applicant has stated that it is mentioned in the recovery memo itself that it consists of nine pages, which is false, as the recovery memo consists of eight pages only. It is further submitted that the seizure proceedings had started at 5.30 am i.e. before sunrise, which is clear violation of Section 42 of the N.D.P.S. Act rendering the complete proceedings as void. Learned counsel has further stated that the statement of the applicant has been recorded by the officials of the DRI in the absence of any Magistrate by pressurizing him.

5. Learned counsel for the applicant placed reliance on the view expressed by the Apex Court in Tofan Singh vs. State of Tamil Nadu1, where it was held that a confessional statement under Section 67 of the N.D.P.S. Act will not be admissible in evidence.

6. Learned counsel for applicant has also relied on the judgement of the Amarjeet Singh vs. DRI 2, wherein it has been held that "... court must insist that the procedure established by the law to be scrupulously adhered to since in cases involving the offences under the NDPS Act, and in particular, where the quantity involved is a commercial one, the chance of accused in getting bail is very slim. There should be insistence on strict compliance by investigating agency with the procedures. Since the infraction of liberty is severe, greater care should be taken to ensure that the procedure established by law is not allowed to be diluted. If there is nothing to show that the accused is likely to commit an offence under NDPS Act, if granted bail, accused is entitled to be released on bail."

7. Learned counsel for applicant has also placed reliance on the judgement of the Apex Court passed in Sujeet Kumar vs. State of Gujarat3 wherein recovery of more than 1500 kg contraband was there and the accused was granted bail.

8. Learned counsel has further stated that Clause 1.5 of the Standing Order No. 1/88 of the NCB, New Delhi, has not been followed and the contraband has not been sent to the forensic laboratory within 72 hours. The trial has not yet begun. The applicant has no criminal antecedents and is languishing in jail since 15.2.2020.

9. Per  contra, learned counsel for DRI, has categorically stated that the applicant is the owner of the said truck bearing two fake numbers UP 65 AR 6699 and BR-26-C-8206. Learned counsel has further stated that the memo itself indicates in the header, wherein the pagination is made, for example page no. 2 to 8 which clarifies that the memo consists of eight pages only but inadvertently, it has been referred on the last page of the memo that there are nine pages in all. It is just a mistake committed by the arresting officer and it does not at all indicate any kind of falsity in it.

10. Learned counsel for DRI has categorically stated that there is compliance of Section 50 of NDPS Act as a Gazetted Officer was there at the time of search of the said truck. The presence of the contraband in the truck was specifically revealed by all the accused persons including the applicant, which indicates that they all were in conscious possession.

11. Learned counsel has placed reliance on the judgement of the Apex Court passed in Union of India Through N.C.B. vs. Md. Nawaz Khan4. Learned counsel has further stated that the twin conditions enumerated in Section 37 of the NDPS Act are also covered herein.

12. Learned learned counsel for D.R.I. has placed reliance on the judgement of the Apex Court in the case of Megh Singh vs. State of Punjab5, wherein the Court held that a bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises.

13. Learned learned counsel for D.R.I. has placed reliance in the case of Makhan Singh vs. State of Haryana6, wherein the Apex Court has held that compliance with Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc., which the accused may be carrying ought to be searched.

CONCLUSION:-

14. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In State of Kerala Vs. Rajesh and others7, the Supreme Court has held that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that person is not likely to commit any offence while on bail. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.

15. In State of M.P. vs. Kajad8, the Supreme Court has held that denial of bail is the rule and it grants an exception under (ii) of clause (b) of Section 37(1) of the Act, 1985.

16. In State of Kerala vs. Rajesh and others (supra), the Supreme Court has held that liberal approach in the matter of bail under the N.D.P.S. Act is uncalled for.

17. Therefore,, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Apex Court in Anil Kumar Yadav vs. State (N.C.T.) of Delhi and another9, is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

18. The recovered contraband is heavy in quantity. There is compliance of the mandatory provision of N.D.P.S. Act. The sample has been taken and sent for chemical analysis within time, which negates the theory of any kind of adulteration. There is nothing on record to suggest that there is any animosity of the accused to the officials of the DRI.

19. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

20. The bail application is, accordingly, rejected.

21. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

22. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

Order Date :- 12.5.2022

Shalini

(Justice Krishan Pahal)