Chattisgarh High Court
Lavi Kumar vs State Of Chhattisgarh on 7 November, 2022
1
Order Reserved on 30.09.2022
Order pronounced on 07.11.2022
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 7535 of 2022
1. Lavi Kumar S/o Sanjeev Kumar Aged About 26 Years R/o Tilora, Police
Station Jansath, District Muzaffar Nagar, Uttar Pradesh.
2. Gaurav Rathi S/o Udaiveer Rathi Aged About 27 Years R/o Dudhaderi, P.S.
Mansurpur District Muzaffar Nagar, Uttar Pradesh.
---- Applicants
Versus
• State Of Chhattisgarh Through Station House Officer, Police Station Borai,
District Dhamtari Chhattisgarh.
--- Respondent
For Applicants : Shri Ashish Shrivastava, Senior Advocate with
Shri Aman Pandey and Shri Rohishek Verma,
Advocates
For State : Shri Adil Minhaj, Govt. Adv.
Hon'ble Shri Justice Sachin Singh Rajput
C A V Order
1. The applicants have been arrested in connection with Crime
No.09/2022 registered at Police Station - Borai, District - Dhamtari (CG) for
alleged commission of offences under Section 20 (B) of Narcotics Drugs and
Psychotropic Substance Act, 1985 {for short NDPS Act}.
2. Case of the prosecution in brief is that on 01/04/2022 while on duty at check
post barrier, while checking the vehicles, the applicants were found carrying
27 packets weighing about 90.800 kgs of contraband (ganja) in white colour
Mahindra XUV vehicle bearing registration number UP 12 BF 4632. After
primary checking at the check post, the applicants were taken into custody
and thereby offence as stated above was registered against them.
3. Learned senior counsel for the appellant submits that there are 3 accused
persons arrested in the aforesaid offence. Two of them namely Lavi Kumar
and Gaurav Rathi are before this Court seeking for grant of regular bail. He
submits that though alleged seizure of contraband is in the commercial
quantity, however, investigation is complete, charge sheet has already been
filed, the applicants are in jail since 01/04/2022 and trial has not concluded
yet. He submits that during the proceedings of seizure of contraband, there
were gross violation of the mandatory standing order No.1 of 1989
particularly clause no.2.2, 2.3, 2.4 and 2.5.
4. He submits that there were 27 packets allegedly seized from the possession
of the accused persons. The testing of these 27 packets have not been
drawn by the prosecution and only odour testing of one packet was
conducted leaving out the remaining 26 packets of the alleged contraband
and thereafter, all these materials were mixed together and sample was
drawn from the entire quantity. He further submits that according to the
standing order no.1/89, from each packet so seized, sample in duplicate has
to be drawn. Here in this case, the prosecution did not follow the mandatory
standing order. Therefore, in view of the judgment of the Supreme Court in
the case of Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 benefit
would go to the applicants and possibility of their conviction is much less. He
further goes on to submit that there are catena of decisions in which, Hon'ble
Supreme Court and High Courts have held that if the standing order which is
mandatory in nature and any violation thereof would lead to acquittal of the
accused. Therefore, in sum and substance, provisions contained in Section
37 of the NDPS Act would not come as a bar in grant of bail to the applicants
as they are the first offender and from the charge sheet itself, it has come on
record that there was gross violation of the standing order and there are
reasonable ground for this Court to believe that the applicants are not guilty
of commission of alleged offence. Since there is no offence registered
against the present applicants with regard to NDPS Act prior to this, it would
be safely be assumed that in the event of bail being granted to them, they will
not indulge themselves in any offence of this nature in future. In order to
buttress his submission, he relies upon various orders passed by Hon'ble
High Courts which are mentioned below:-
A) Order dated 19.04.2022 passed in MCRC No. 19405 of 2022 Navneet Jat
Vs. State of Madhya Pradhesh {High Court of Madhya Pradesh}.
B) Order dated 05.07.2022 passed in Criminal Petition No. 4428 of 2022
Baba Sow Chandekar & another Vs. State of Telangana {High Court of
Telangana}.
C) Order dated 11.03.2022 passed in Criminal Misc. Bail Application No.
9660 of 2021 Om Prakash Verma Vs. State of U.P. {Allahabad High
Court}.
D) Order dated 16.05.2019 passed in Criminal Misc. Bail Application No.
5643 of 2019 Laal Singh Vs. State of Rajasthan {High Court of
Rajasthan}.
E) 2021 SCC Online Del 486 Ahmed Hassan Muhammed Vs. The Customs
F) 2012 (130) DRJ 471 Basant Rai Vs. State
4. On the other hand, learned State counsel submits that according to Section
35, 37 and Section 54 of the NDPS Act, presumption is always against the
accused persons for commission of offence under NDPS ACt and there is no
presumption of innocence in favour the present applicants. He submits that
the applicants were apprehended while transporting 90.800 kgs of ganja in a
car and they were apprehended on the spot and from their joint possession
90.800 kgs of contraband were recovered. He submits that clause 2.5 of the
standing order is not mandatory in nature and it is only advisory in nature and
if substantial compliance is found to have been done, no benefit can be
attributed to the applicants. Therefore, there is no violation of any standing
order of clauses 2.3, 2.4 and 2.5. He submits that though color test was not
conducted but odour test was conducted and after satisfaction that the
contraband so seized appears to be ganja, all the 27 packets were mixed up
together and eight samples were drawn and each of the eight samples which
were drawn sent for chemical examination, FSL report of each of the eight
samples came with a positive report that it contains contraband (ganja).
Therefore, it cannot be said that the prosecution has violated any mandatory
clauses of standing orders of 1 of 1989. He further goes on to submit that
according to clause 2.5, in cases of ganja and hashish, if more than one
packet are seized, the prosecution can gather together 40 bags and make
them in a one lot and likewise, further lots may be prepared. In the case in
hand, only 27 bags were seized. Therefore, every bag were mixed together
and eight samples were drawn. Therefore, there is no violation of any clauses
of mandatory instructions and it has been performed in view of clause 2.8 of
the standing order. He further submits that in cases where quantity of
contraband seized is in the commercial nature, bar under Section 37 of the
NDPS Act would come into play. He has submitted that he is opposing
application for grant of bail to the applicants and Section 37 of the NDPS Act
requires two conditions in case of opposition that firstly, the Court has to
come to a conclusion on the basis of reasonable belief that the accused have
not committed the offence and in the event bail being granted, they will not
commit any offence in future. Both the conditions are absent in the present
case, so upon the technicality, the submissions which was made by the
applicants' counsel, could be raised during the course of trial and any finding
at this stage would definitely prejudice the trial. He submits that the applicant
- Gaurav Rathi has six criminal antecedents which includes excise matters
and offence under the Indian Penal Code, 1860 (for short IPC). So far as
applicant - Lavi Kumar is concerned, he submits that he has no instructions
with regard to criminal antecedents. In support of his arguments, he relies
upon the judgment of Hon'ble Supreme Court in case of Narcotics Control
Bureau Vs. Mohit Aggarwal 2022 SCC OnLine SC 891 and Bipin Bihari
Lenka Vs. Narcotics Control Bureau, 2022 Cri. L.J. (NOC) 376 (Del.)
5. In response to criminal antecedents, learned senior counsel for the applicants
would submit that in the charge sheet, there is no mention of criminal
antecedents of applicant Gaurav Rathi and also memo of arrest also does not
indicate any criminal antecedents of applicant Gaurav Rathi.
6. I have heard learned counsel for the parties and considered their rival
submissions.
7. In order to appreciate the arguments advanced by the learned senior counsel
and State counsel relevant clauses of Standing Order No.1 of 1989 and
sections of NDPS Act is reproduced herein below:-
Standing Order No. 1 of 1989
"2.1 All drugs shall be classified, carefully, weighed and sampled on the spot of
seizure.
2.2 All the packages/containers shall be 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 persons 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 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) were 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 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 one package/container.
2.5 However, when the packages/containers seized together are of identical size and
weight, bearing identical markings and the contents of each package given identical
results on colour test by the drug identification kit, conclusively indicating that the
packages are identical in all respects the packages/container may be carefully
bunched in lots of 10 package/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 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
be drawn.
2.7 If such remainder is 5 or more in the case of other drugs and substances and 20
or more in the case of ganja and hashish, one more sample (in duplicate) may be
drawn for such remainder package/container.
2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured
that representative sample the 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."
2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is
convenient and safe. The plastic bag container should be kept in a paper envelope
which may be sealed properly. Such sealed envelope may be marked as original and
duplicate. Both the envelopes should also bear the No. of the package(s)/container(s)
from which the sample has been drawn. The duplicate envelope containing the
sample will also have a reference of the test memo. The seals should be legible. This
envelope along with test memos should be kept in another envelope which should
also be sealed and marked "Secret-Drug sample/Test memo", to be sent to the
chemical laboratory concerned.
NDPS Act
35. Presumption of culpable mental state.-- (1) In any prosecution for an offence
under this Act which requires a culpable mental state of the accused, the court shall
presume the existence of such mental state but it shall be a defence for the accused to
prove the fact that he had no such mental state with respect to the act charged as an
offence in that prosecution.
Explanation.--In this section "culpable mental state" includes intention motive,
knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court
believes it to exist beyond a reasonable doubt and not merely when its existence is
established by a preponderance of probability.
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.
54. Presumption from possession of illicit articles.-- In trials under this Act, it may
be presumed, unless and until the contrary is proved, that the accused has committed
an offence under this Act in respect of--
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he
has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for
the manufacture of any narcotic drug or psychotropic substance or controlled
substance; or
(d) any materials which have undergone any process towards the manufacture of a
narcotic drug or psychotropic substance or controlled substance, or any residue left
of the materials from which any narcotic drug or psychotropic substance or
controlled substance has been manufactured, for the possession of which he fails to
account satisfactorily.
8. The Hon'ble Supreme Court in the case of Noor Aga (Supra) held as under:-
89. Guidelines issued should not only be substantially complied, but also in a case
involving penal proceedings, vis-a-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 and Ors. v. Kurian Abraham (P) Ltd. 47
and following the earlier decision of this Court in Union of India v. Azadi Bachao
Andolan48 held that statutory instructions are mandatory in nature.
91. 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 of 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.
9. In a recent judgment in the case of Narcotics Control Bureau Vs. Mohit
Aggarwal 2022, SCC OnLine SC 891 held as under:-
12. The expression "reasonable grounds" has come up for discussion in several rulings of
this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira" 5, a decision
rendered by a Three Judges Bench of this Court, it has been held thus:--
"7. The limitations on granting of bail come in only when the question of granting bail
arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other
twin conditions which really have relevance so far as the present accused-respondent is
concerned, are: the satisfaction of the court that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence and that he is not likely to
commit any offence while on bail. 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" 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."
[emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala v.
Rajesh"6 and this Court has observed as below:
"20. 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."
[emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-
Section (1) of Section 37 would mean credible, plausible and grounds for the Court
to believe that the accused person is not guilty of the alleged offence. For arriving at
any such conclusion, such facts and circumstances must exist in a case that can
persuade the Court to believe that the accused person would not have committed
such an offence. Dove-tailed with the aforesaid satisfaction is an additional
consideration that the accused person is unlikely to commit any offence while on
bail.
10. In light of the above stated legal provisions of NDPS Act, Standing Order No.
1 of 1989 and judgments relied upon by the respective parties, on
examination of the material collected by prosecution in the present case facts
prima facie appears on record is that total 90.800 Kgs of contraband (Ganja)
was seized from the possession of applicants and co-accused Rakesh Kumar
in a white colour Mahindra XUV vehicle bearing registration number UP 12
BF 4632 kept in the boot space (dicky) and back seat of the car. Applicants
and co-accused Rakesh Kumar were traveling the said car and on
interception at a check post barrier the aforesaid seizure was made. The
contraband was seized in total 27 small and big packets rapped in pale
brownish yellow (Khaki) colour plastic tape. It is apparent that all the 27
packets were not subjected to colour test by the drug identification kit but was
subjected to odour test and it appeared to be like contraband (ganja). After
mixing the contraband from all packets 8 samples were drawn and sent for
chemical testing and all the sample tested positive for contraband (ganja) in
the FSL report. Admittedly separate samples were not drawn from each
packet and it was drawn after mixing them.
11. Section 37 of NDPS Act prescribed twin conditions in grant of bail. First is
that "court is satisfied that there are reasonable grounds for believing that he is not
guilty of such offence" and the second condition is that he is not likely to commit
any offence while on bail. In case of Noor Aga (Supra) held that guidelines
issued should be substantially complied with. Clause 2.2 of Standing Orders
1 of 1989 prescribes that normally, it is advisable to draw one sample (in
duplicate) from each package/container in case of seizure of more than one package/
container. Clause 2.5 envisages that 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. After hearing the
parties at length and also giving thoughtful consideration on the provisions of
law and authority cited at the bar at this stage of considering an application
for grant of bail this court is not persuaded to give any positive finding with
regard violation of mandatory provisions of Standing Order No.1 of 1989.
This can only be tested at the time trial after leading the evidence in this
regard. Even assuming for sake of argument the applicants have overcome
the first of twin condition prescribed in Section 37 of NDPS Act, they failed in
the second condition. The applicants are residents of District - Muzaffar
Nagar, Uttar Pradesh. Applicant Gaurav Rathi is having 6 criminal
antecedents, co-accused Rakesh Kumar has 40 criminal antecedents
including serious offences of Indian Penal Code, 1860 as reflected in the
case diary. All the accused persons were traveling in the car and contraband
(ganja) was seized from the boot space (dicky) and back seat of the car.
Section 54 of NDPS Act also envisages that "In trials under this Act, it may be
presumed, unless and until the contrary is proved, that the accused has committed an
offence under this Act." This Court is not persuaded to believe that the
presumption is rebutted at this stage which can only be done during the
course of trial.
12) This Court, with respect, unable to agree with the various orders of Hon'ble
High Courts cited by the learned senior counsel on the basis of discussion
made herein above. As a fall out of the above discussion, relying upon
judgment of Mohit Aggarwal (Supra), this Court, at this stage, do not find
any reasonable grounds to believe that the applicants are not guilty of such
offence and they are not likely to commit any offence while on bail.
Therefore, the bail application is devoid of merit and is hereby dismissed.
Any observation made herein above shall not construe as opinion on merits
of the case.
Sd/-
-
(Sachin Singh Rajput)
Judge
Deepti
