Chandraveer Singh @ Pintu/Chintu vs Directorate Of Revenue ...
2023 Latest Caselaw 245 Chatt

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                                                                               AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR
                             MCRC No. 4165 of 2022
    Chandraveer Singh @ Pintu/chintu Son Of Diwan Singh Aged About 28
     Years Resident Of Patti Chuhara, Sonai, Aligarh, P.S. Bhanduri Sonai,
     District : Mathura, Uttar Pradesh
                                                                      ---- Applicant
                                      Versus
    Directorate Of Revenue Intelligent (Dri) Raipur Regional Unit, District :
     Raipur, Chhattisgarh
                                                                   ---- Respondent

MCRC No. 7859 of 2022  Amit Kumar @ Jitu S/o Diwan Singh Aged About 31 Years R/o Nagla Bari, Post Tuksan, Hatras (U. P).

---- Applicant Versus  Directorate Of Revenue Intelligence (Dri) Panchsheel Nagar, Raipur District- Raipur Chhattisgarh.

---- Respondent MCRC No. 7866 of 2022  Dori Lal S/o Badan Singh Aged About 35 Years R/o House No. 183 Vishangunj Mathura, Uttar Pradesh.

---- Applicant Versus  Directorate Of Revenue Intelligence (Dri) Panchsheel Nagar, Raipur, District- Raipur, Chhattisgarh.

---- Non-Applicant

For the Applicants : Mr. Rajesh Jain, Mr. Vikash Pradhan, Advocates.

For Non-Applicant/DRI : Mr. Maneesh Sharma, Advocate.

Hon'ble Shri Justice Sachin Singh Rajput Order On Board 13.01.2023

1. These three bail applications arise out of same crime numbers, therefore,

they are being heard analogously and disposed by a common order.

2. The applicants have preferred these first bail applications under Section 439

of Cr.P.C. for grant of regular bail as they are in jail since 05.10.2021 and

13.10.2021 respectively in connection with Crime No.36/2021 registered at

Police Station Directorate of Revenue Intelligence (DRI), Raipur (C.G.). The

offence alleged against the applicant in MCRC NO.4165 of 2022 is under

under Sections 8(b), 20(b)ii(c), 26, 27A, 29 of NDPS Act and the offence

alleged against the applicants in MCRC No.7859 of 2022 & MCRC 7866 of

2022 is under Sections 8(c) r/w 20(b)ii(C), 26, 27A, 29 of NDPS Act.

3. Case of the prosecution, in brief, is that, on 04.10.2021 on the basis of

secret information, the officer of DRI stopped a truck bearing registration No.

AP 39-TP-9706. The driver and other occupants of the truck informed that

they are transporting Murmura. However, subsequently, they made

admission before the Office of DRI that they are transporting Ganja, which is

kept below the Murmura. The truck was searched and seizure of 833.271 kg

of ganja was made from the accused persons.

4. Learned counsel for the applicants would submit that applicants are

innocent persons and have been falsely implicated in this case. They further

submit that there are total 7 accused persons in the present crime out of

which 3 are before this Court. Mr. Rajesh Jain, Advocate submits that the

allegations against the accused Dori Lal is that he was involved in

commission of crime only on the basis of memorandum statement of co-

accused Bandari @ Chandrashekhar. Since the applicant was not present

on the spot from where the seizure was made no recovery was made

effective from his conscious or physical possession, he placed reliance on

the judgment of Hon'ble Supreme Court in the matter of Tofan Singh Vs.

The State of Tamil Nadu reported in 2021 (4) SCC 1, stating that the

memorandum statement of co-accused cannot be read against the present

applicant, therefore, there is no legal admissible evidence against him

collected by the prosecution, that the charge-sheet has been filed, he is in

jail since 05.10.2021 and trial will take time for its conclusion, therefore, he

may be released on bail.

5. Mr. Jain, Counsel for the applicant in MCRC No.7859 of 2022 submits that

neither applicant was present on the spot nor any recovery was made from

his conscious possession and his name was surfaced only on the basis that

some bank transactions took place from his bank account, therefore, he has

been arrayed as an accused. He submits that there are two people named

Amit Kumar therefore, the identity of this person is doubtful in commission of

present crime. He submits that even assuming that some bank transaction

has been taken place by applicant, it could not attract the fact that he has

committed the said crime of serious nature and further submits that when

the other vehicle was stopped some documents pertaining to other Amit

Kumar was seized which was not related to present applicant and other co-

accused also stated that that was other Amit Kumar who was involved in

crime not the present applicant. That the applicant is in jail since 13.10.2021

and trial is likely to take time for its conclusion, therefore, he may be

released on bail.

6. Mr. Vikash Pradhan, Counsel for the applicant in MCRC No.4165 of 2022

submits that neither any recovery was made from the conscious possession

of applicant nor he was present on the spot and his name surfaced only on

the basis of memorandum statement of one co-accused Bandari @

Chandrashekhar, therefore, the judgment of Hon'ble Supreme Court in the

case of Tofan singh (Supra) is also applicable in his case and there is no

admissible evidence against the present applicant. That the applicant is in

jail since 05.10.2021 and trial will take time for its conclusion, therefore, he

may be released on bail.

7. Mr. Maneesh Sharma, Counsel for respondent/DRI vehemently opposes the

bail application and submits that there are ample evidence in the charge-

sheet against the present applicants and on the basis of a secret information

received by DRI that some people in a car guiding the vehicle container

truck were illegally transporting ganja and going to Mathura (U.P.) via

Gariaband. On the said information, near Toranga Forest Post, District

Gariyabandh, CG a truck bearing registration No. AP-39/TP- 9706 was

intercepted. The Mahindra XUV bearing No. UP 85 BU 2060 fled away from

the spot. In the truck 833.271 kg contraband cannabis was recovered and

two persons namely Bandari @ Chandrashekhar and Bhupendra @ Bhupi

were found in possession. Later Mahindra XUV was intercepted by Police

and in said XUV present applicants Dori Lal and Chandraveer Singh were

caught. Thereafter, the investigation proceeded and during investigation it

was found that these applicants hatched a conspiracy, purchased the

cannabis from Vishakhapattnam and in continuation of conspiracy all of

them went to Vishakhapattnam, stayed in a hotel, they also paid some

amount earlier as advance and subsequently cash and bank transactions

were made and cannabis was secured which were being transported from

Andhra Pradesh to Uttar Pradesh for sale. Thereafter, it has also been

revealed that after the sale of said cannabis (Ganja), the profit would be

shared amongst the accused persons. He submits that apart from the other

offences, the present applicants have also been charged under Section 29

of NDPS Act. Since, it is a case of conspiracy, the provision of Evidence Act

would come into play and memorandum statement of other co-accused

would be admissible against the present applicants and apart from this he

also submits that Section 37 specific bar for commission of the crime and for

grant of bail would be applicable because the quantity so seized is in

commercial quantity and submits that physical possession is not necessary

in order to attract the provision of this case because the judgment of Apex

Court in the matter of Union of India Vs. Md. Nawaz Khan reported in

2021 (10) SCC 100 (Para 26) clearly stated that if it is in knowledge of

accused persons that the contraband is being transported then it could be

very well said that it is in conscious possession. Hence the applications of

the applicants may be rejected.

8. I have heard learned counsel for the parties and considered their rival

submissions.

9. The Hon'ble Supreme Court in case of Md. Nawaz Khan (Supra) in para 26

held as under:-

"26.What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab 17 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan 18 , this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

10. The Hon'ble Supreme Court in the matter of NCB Vs. Mohit Aggrawal

reported in 2022 SCC Online SC 891 (Paras 10 to 15), submits that bar

under Section 37 of NDPS Act, would be attracted and at this stage, it

cannot be said that they are not guilty for the said offence and they have not

committed any crime.

Para 10 to 15 held as under:-

" 10. The provisions of Section 37 of the NDPS Act read as follows:

"[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.]

11. It is evident from a plain reading of the non-obstante clause inserted in sub- section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person

accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

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 and others Vs. Rajesh and others" 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.

15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the Criminal Appeal Nos. ............ of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."

11. Considering the facts and circumstances of the case and looking to the

nature of evidence collected by the prosecution and quantity of contraband

seized, provision of Section 37 of NDPS Act and also placing reliance upon

the judgments of Hon'ble Supreme Court cited by respondent counsel in the

matter of Nawaz khan (Supra) and Mohit Aggrawal (Supra), at this stage

this Court is unable to hold that the applicants have crossed the hurdles

created under section 37 of NDPS Act, therefore, their applications are

liable to be and are hereby rejected.

12. At this stage, counsel for the applicants submits that applicants have

already served more than one year of jail sentence, therefore, direction may

be issued to expedite the trial.

13. It is expected that trial Court will conclude the trial within a reasonable

period of time.

Sd/--

                                                     (Sachin Singh Rajput)
parul                                                          Judge