Radheyshyam vs Union Of India Through Narcotic ...
2022 Latest Caselaw 14299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 05.09.2022
 
Delivered on 19.10.2022
 
Court No. - 79
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48761 of 2020
 
Applicant :- Radheyshyam
 
Opposite Party :- Union Of India Through Narcotic Bureau
 
Counsel for Applicant :- Rajesh Kumar Gupta,Abhishek Kumar Mishra,Chandrakesh Mishra,Rajesh Kumar Mishra,Vikrant Gupta
 
Counsel for Opposite Party :- Ashish Pandey
 

 
Hon'ble Subhash Vidyarthi J.
 
    1.

Heard Sri Daya Shankar Mishra, Senior Advocate assisted by Sri Chandrakesh Mishra and Abhishek Mishra Advocates, the learned counsel for the applicant and Sri Ashish Pandey, the learned counsel for the Narcotic Control Bureau.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 25 of 2020, under Sections 8/20/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (which will hereinafter be referred to as "the Act"), Police Station N.C.B., District Lucknow.

3. The prosecution case is that on the basis of a confidential information received by the officers of Narcotic Control Bureau hereinafter referred to as the ''NCB') on 07.09.2022, a team of officers of the NCB, accompanied by another team of STF, apprehended the accused persons while a plastic sack was being transferred from a truck to a Scorpio vehicle. Four persons sitting in the Scorpio vehicle were also apprehended and it is alleged that the persons sitting in the truck confessed that 1,100 Kg. Ganja was being transported in the truck and the person sitting in Scorpio confessed that they had come to take delivery of Ganja from the truck. It is alleged that the applicant was sitting on a motorcycle alongwith another person and he stated that "ganja was concealed beneath the bags of rice bhusi in Bharat benz truck regd. No. UP 32 LN 4423 and that on his say so only one bag of Ganja was kept in Scorpio". He further stated that the Scorpio vehicle had been purchased by him. Thereafter all the three vehicles were taken to Police Station - Naini on 09.09.2020 at about 03:50 a.m. and it is alleged that one plastic sack containing 6 packets in it was recovered from the Scorpio, a small quantity of substance was taken and upon being tested by the drug detection kit and it was found to be Ganja. Each of the packets weighed 5.2 kg., thus the total weight of six packets was 30.200 kg. 28 sacks were found in the truck, which contained 219 packets, each weighing 5.2 kg. totaling to 1,138.80 kg.

4. The applicant filed an application for his release on bail, which has been rejected by means of an order dated 07.11.2020 passed by the Additional Session Judge, Court No. 10, Allahabad on the ground that the co-accused persons had stated that the applicant had come to take delivery of the Ganja and there is no reason to disbelieve the prosecution case.

5. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the present case. It has further been stated that the applicant has no criminal history and he is languishing in jail since 10-09-2020.

6. The NCB has not filed any counter affidavit opposing the application for grant of bail. However, it has filed a counter affidavit in connected Criminal Bail Application No. 46832 of 2020 filed by the co-accused Rajan Rai. A copy of the complaint filed by it in the Court of District and Session Judge, Allahabad has been annexed with the aforesaid counter affidavit in which the contents of the recovery memo have been reiterated. It is alleged that statement of the applicant was recorded under Section 67 of NDPS Act on 09.09.2020 and he had confessed that he was involved in illicit trafficking of Ganja.

7. It is further stated in the complaint that all the 9 accused persons were produced before the Court alongwith seized ganja, truck, Scorpio and a Motorcycle and all the persons were sent to judicial custody. It has been stated in the complaint that all the recovered packets were marked as P-1 to P-219 and divided into 6 lots. 6 samples in duplicate were drawn and marked L1S1 - L6S1 and L1S2 - L6S2 serially.

8. The samples were sent for chemical examination to CRCL, New Delhi on 11.09.2020 and its report was received on 19.11.2020, as per which all six samples were found positive for Ganja.

9. The present application of bail has to be considered and decided keeping in view the provisions contained in Section 37 of the Act, which provides as follows: -

"37. Offences to be cognizable and non-bailable.-

Notwithstanding anything contained in the Criminal Procedure Code, 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 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--

(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 Criminal Procedure Code, 1973 (2 of 1974), or any other law for the time being in force on granting of bail."

10. In Union of India v. Rattan Mallik, (2009) 2 SCC 624, the Hon'ble Supreme Court explained the principles applicable in grant of Bail in offences under the NDPS Act as follows:--

"11.... It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act 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 Criminal Procedure Code, 1973, it is also subject to the restrictions placed by 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 v. 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.

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."

(Emphasis supplied)

11. I have to examine whether there are reasonable grounds to prima facie make out a case at this stage that the accused may not be held guilty of the offence alleged. Ganja was found loaded in a truck packed in 213 packets kept in 28 sacks and 6 packets containing ganja are said to have been recovered from another vehicle. All the packets were marked as P-1 to P-219 and in all, six samples were drawn by the officers of NCB and the same were sent for testing. The applicant was not found sitting in any of the vehicles from which Ganja was recovered and the allegation against the applicant is that he had come on a motorcycle to take delivery of Ganja.

12. The provision for collection of samples etc. has been laid down in Section 52 A of the Act, which provides as follows: -

52-A. Disposal of seized narcotic drugs and psychotropic substances.--

* * *

(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

* * *

13. No material has been placed on record to indicate that the officer in charge of the nearest police station or the officer empowered under Section 53, or any officer referred to in sub-section (1) made an application to any Magistrate for the purpose of certifying the correctness of the inventory prepared, taking photographs of the substance in the presence of such Magistrate and certifying such photographs as true or allowing to draw representative samples of the substance in presence of the Magistrate and certifying the correctness of the list of samples drawn and that the Magistrate has allowed the application. Therefore, at this stage, prima facie it appears that the procedure prescribed in Section 52 A of the Act has not been followed in the present case.

14. In exercise of the powers conferred by Section 52 A (1) of the Act, the Government of India, Ministry of Finance (Department of Revenue) has issued a Standing Order No. 1/89 dated 13th June, 1989, laying down procedure for collection of samples etc. Section II of the Standing Order No. 1/89 reads as under:--

"Section II

General Procedure for Sampling, Storage, etc.

2.1. Sampling and classification, etc. of drugs.

All drugs shall be properly classified carefully weighed and sampled on the spot of seizure.

2.2. Drawal of samples. All the packages/containers shall be serialy numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses Panchas and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.

2.3. Quantity to be drawn for the sampling.-- The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4. Method of drawl : (a) Single container/package. - In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than package/container.

2.5.(b) Bunch of packages/containers.-- However, when the packages/containers seized together are identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of 10 packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

2.6. Bunching for, (i) Hashish and ganja.-- Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need to be drawn.

2.7. ....

2.8. Drawal of representative samples.-- While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative sample in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

* * *

3.1. Preparation of inventory.-- After sampling, detailed intentory of such packages/containers shall be prepared for being enclosed to the panchnama. Original wrappers shall also be preserved for evidentiary purposes.

(Emphasis supplied)

15. Even as per the averments made in the complaint, 213 packets were recovered from the truck in which the applicant was sitting and 6 packets were recovered from another vehicle yet all the packets were re-arranged in 6 lots. The seized packets did not bear any identical markings conclusively indicating that the packages were identical in all respects. Yet, samples were not drawn in duplicate from each of the 219 packets as required by the aforesaid Standing Order.

16. In Khet Singh v. Union of India, (2002) 4 SCC 380, the Hon'ble Supreme Court held that:--

"10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation."

17. In Noor Aga v. State of Punjab, (2008) 16 SCC 417, the Hon'ble Supreme Court held that:--

"89. Guidelines issued should not only be substantially complied with, but also in a case involving penal proceedings, vis-à-vis a departmental proceeding, rigours of such guidelines may be insisted upon. Another important factor which must be borne in mind is as to whether such directions have been issued in terms of the provisions of the statute or not. When directions are issued by an authority having the legal sanction granted therefor, it becomes obligatory on the part of the subordinate authorities to comply therewith.

90. Recently, this Court in State of Kerala v. Kurian Abraham (P) Ltd., (2008) 3 SCC 582, following the earlier decision of this Court in Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1, held that statutory instructions are mandatory in nature.

91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution."

(Emphasis supplied)

18. In Union of India v. Mohanlal, (2016) 3 SCC 379, the Hon'ble Supreme Court held that:--

"12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself....

* * *

15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

* * *

31. To sum up we direct as under:

31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading "seizure and sampling". The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order.

31.2. The Central Government and its agencies and so also the State Governments shall within six months from today take appropriate steps to set up storage facilities for the exclusive storage of seized narcotic drugs and psychotropic and controlled substances and conveyances duly equipped with vaults and double-locking system to prevent theft, pilferage or replacement of the seized drugs. The Central Government and the State Governments shall also designate an officer each for their respective storage facility and provide for other steps, measures as stipulated in Standing Order No. 1 of 1989 to ensure proper security against theft, pilferage or replacement of the seized drugs.

31.3. The Central Government and the State Governments shall be free to set up a storage facility for each district in the States and depending upon the extent of seizure and store required, one storage facility for more than one districts.

31.4. Disposal of the seized drugs currently lying in the Police Malkhanas and other places used for storage shall be carried out by the DDCs concerned in terms of the directions issued by us in the body of this judgment under the heading "disposal of drugs"."

19. It has been stated in the complaint filed by NCB before the Court that all the recovered packets were marked as P-1 to P-219 and divided into 6 lots. 6 samples in duplicate were drawn and marked L1S1 - L6S1 and L1S2 - L6S2 serially. However, there is nothing on record to indicate that an application was filed before the Magistrate seeking permission to draw representative samples in his presence, that the samples were actually drawn and the correctness of the list of samples so drawn was certified by the Magistrate as mandated by the legislature in Section 52 A and as directed by the Hon'ble Supreme Court in Mohanlal (Supra). Moreover, the 213 packets recovered from the truck and 6 packets recovered from another vehicle were bunched together and were divided into 6 lots and samples were taken from each lot and samples were not taken from each of the packets recovered.

20. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, the Hon'ble Supreme Court held that:--

"Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused."

21. In Makhan Singh v. State of Haryana, (2015) 12 SCC 247 while dealing with a case under the Narcotic Drugs and Psychotropic Substances Act, the Supreme Court reiterated that "...It is a well-settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence."

22. In Tofan Singh v. State of T.N., (2021) 4 SCC 1, the Hon'ble Supreme Court reiterated that:--

"55. Given the stringent provisions of the NDPS Act, together with the safeguards mentioned in the provisions discussed above, it is important to note that statutes like the NDPS Act have to be construed bearing in mind the fact that the severer the punishment, the greater the care taken to see that the safeguards provided in the statute are scrupulously followed."

23. The principle that where the law prescribes a manner for doing a thing, the thing has to be done in that manner or not at all, was propounded in Taylor v. Taylor, [L.R.] 1 Ch. 426 and it was followed by the Privy Council in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 and it has consistently been followed since then. What prima facie appears at this stage is that the procedure prescribed by Section 52 A of the Act and by the Standing Order No. 1 of 1989 issued by the Central Government and the guidelines issued by the Hon'ble Supreme Court in Mohanlal (Supra) have not been followed in the present case, which vitiates the prosecution.

24. It has further been held in Tofan Singh (Supra) that:--

"158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

25. Therefore, the confessional statements of the applicant and other co-accused persons cannot be used in the trial.

26. Analyzing the facts of the present case for the purpose of deciding the applicant's claim for bail in light of the aforesaid law, I find the following facts to be relevant for deciding the application for grant of bail to the applicant:--

(i) The applicant was not found sitting in any of the vehicles from which ganja was allegedly recovered.

(ii) The representative samples of the substance recovered from the vehicles were not drawn either at the spot of the recovery or in presence of the Magistrate;

(iii) It was not a chance recovery and it is not the case of NCB that the officers did not have the facility to prepare a seizure memo at the spot itself. The facility for weighing the article and field testing kits were available with the search team and, therefore, there was no reasonable ground for preparation of the seizure memo at a later stage.

(iv) 213 packets were recovered from the truck and 6 packets were recovered from another vehicle, but all the packets recovered from two separate vehicles were bunched together and were re-arranged in 6 lots.

(v) The samples were not drawn from each of the 219 packets containing the substance, but only 6 sample were drawn from the 6 lots in which all the packets were re-arranged;

(vi) No material has been placed on record to indicate that the proper officer has made an application to a Magistrate for the purpose of certifying the correctness of the inventory prepared, taking photographs of the substance in presence of the Magistrate, certifying such photographs as true or allowing to draw representative samples of the substance in the presence of the Magistrate and certifying the correctness of the list of samples and that the Magistrate has allowed the application. Therefore, at this stage, prima facie it appears that the procedure prescribed in Section 52 A of the Act has not been followed in the present case.

(vii) Apart from the confessional statements of the applicant and the other accused persons, there is nothing to indicate that the applicant had come to take delivery of Ganja and he was involved in trafficking of Ganja;

(viii) The confessional statement of the accused persons is not admissible in evidence in view of the law laid down by the Hon'ble Supreme Court in Tofan Singh (Supra);

27. The aforesaid facts raise doubts against the prosecution case and it give rise to a reasonable ground for prima facie satisfaction at this stage that the applicant may not be held guilty of the alleged offences.

28. The applicant has no criminal history and, therefore, there is no ground to believe that in case the applicant is released on bail, he would again indulge in committing similar offences.

29. Moreover, nothing has been placed on record which may give rise to a reasonable apprehension that in case the applicant is released on bail, he would influence the witnesses.

30. No other material has been placed by the respondent-Narcotic Control Bureau, which may indicate that the applicant is not entitled to be released on bail.

31. In view the aforesaid discussion and also keeping in view the fact that the applicant is languishing in jail since 10-09-2020 and even the charges have not been framed in the case till date and without making any observations on merits of the case, I am of the view that the applicant is entitled to be released on bail pending conclusion of the trial. The bail application is accordingly allowed.

32. Let the applicant - Radheyshyam, be released on bail in Case Crime No. 25 of 2020, under Sections 8, 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station NCB Lucknow, on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:--

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not influence any witness.

(iii) The applicant will appear before the trial court on the dates fixed, unless personal presence is exempted.

(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

33. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of bail.

Order Dated: 19.10.2022

Ashish Pd.