Parkash @ Vikas vs Narcotics Control Bureau
2007 Latest Caselaw 318 Del

JUDGMENT

A.K. Sikri, J.

Page 0775

1. The petitioner is implicated in a case under Sections 20(b)(ii)(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short the 'NDPS Act'). S.C. No. 15/04 under the aforesaid provisions filed by the Narcotic Control Page 0776 Bureau is pending against him in the Court of Ms.Swarn Kanta, Special Judge, NDPS Court, New Delhi. He was arrested on 25.8.2003 and since then he is in judicial custody. Lastly he applied for bail before the trial court, which has been dismissed vide order dated 1.6.2006. What persuaded the learned Special Judge to dismiss his application was that he was found in possession of 52 kgs. of Hashish, which attracts Section 37 of the NDPS Act. The learned Judge, in her two para order, has observed that some discrepancies, which have been pointed out by the learned Counsel for the applicant, would be appreciated at the time of final arguments and final decision of the case. For better appreciation we may reproduce the order in entirety:

Arguments on bail application moved on behalf of accused heard. Perused the file Ld. Counsel for accused has pointed out certain discrepancies in the statement of witnesses and documents filed on record. He states that there is no description of person against whom secret information was made. The panchnama is also incorrect and therefore accused be granted bail. After hearing arguments I am of the opinion that discrepancies which have been pointed out by Ld. Counsel would be appreciated at the time of final arguments and final decision of the present case. The accused was found in possession of 52 Kgs. of hashish which attracts Section 37 NDPS Act no grounds for bail is made out. Application is dismissed.

2. The petitioner has, in these circumstances, filed this application under Section 439 of the Cr.P.C. seeking his bail pending trial. The allegations in the complaint, in nutshell, are as under:

3. In the complaint it is alleged that a secret information was received that one person named Parkash @ Vikas was coming in front of Jai Kashmir Transport Company, Sanjay Gandhi Transport Nagar, Delhi, in between 1600-1700 hours on 23.8.2003 to deliver 50/60 kgs. of Hashish (Charas) concealed in a white Maruti Car registration No. DDC-7145 to some one. Authorisation was given in favor of B. Joshi, I.O. for the purpose of search of the said vehicle. Raiding party reached in front of M/s. Jai Kashmir Transport Company. The officer requested two panch witnesses, namely, Sh. Ravi and Sh. Vinod Kumar, to remain present during the search proceedings and told them about the information and the purpose for which they had come there. The panch witnesses agreed to remain present during the search proceedings. When the raiding party reached M/s. Jai Kashmir Transport Company along with the two panch witnesses, they saw one Maruti Car bearing registration No. DDC-7145 parked there and one person whose description matched with the information was standing near the car. The NCB officials encircled the car and the person standing near the car, upon being asked, told that his name was Parkash @ Vikas. He admitted that he had brought the said car to that place and also admitted the ownership of the car. On search of the car, which was carried out in compliance with the legal requirements, the officials found a plastic bag lying on the back seat of the car in which 25 packets wrapped with brown colour cello tape were found. A small cut was made on all the Page 0777 25 packets which contain black/brown colour solid substance. On testing it was found to be Hashish (Charas). Further formalities, as mentioned in the complaint, were completed after this search and in recording panchnama etc. when the two witnesses also signed.

4. The submission of the learned Counsel for the petitioner is that the petitioner is not the owner of the said car and owner of the car is not known and disclosed by the complainant. He further submitted that as per the testimony of PW-2, namely, I.O., the petitioner was standing two feet away from the car and had not handed over the keys of the car but had revealed that the car belonged to him. He also pointed out that the alleged secret information was only hearsay. Further, though the petitioner was taken into custody on 23.8.2003, his arrest was shown only on 25.8.2003. He also pointed out that both Ravi and Vinod, the alleged two panch witnesses, were the stock witnesses which could not be relied on, as held by this Court in Kashmir Singh v. Narcotics Control Bureau 2006 [3] JCC [Narcotics] 139 holding that in such circumstances recovery itself becomes suspect. He also tried to point out infirmities in the test memo as well as the panchnama. He further referred to the judgment of the Supreme Court in the case of Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra and Anr. 2005 [2] JCC 689, wherein the Supreme Court has held, in the context of Maharashtra Control of Organized Crimes Act (MCOCA), that restrictions on the power of the Court to grant bail should not be pushed too far and the Court had power to grant bail in suitable cases as observed in para 49 of the said judgment:

We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grnat of bail should consider the question from the angle as to whether he was possessed of the requisite means rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. a person in given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.

5. He, therefore, submitted that merely because the case was under NDPS Act should not deter this Court from exercising its jurisdiction when there were so many anomalies in the prosecution case.

Page 0778

6. Learned Counsel for the respondent, on the other hand, submitted that the information to the effect that one person named Parkash @ Vikas would be coming with Hashish was received by NCB official Rattan Chand at 13:50 hours on 23.8.2003 and he recorded the same in writing. There he not only wrote the name of the person, who ultimately turned out to be the petitioner with same name, but he even recorded the description of Parkash by mentioning that as per the information received, his height is about 5 ft. 8 inches, fair complexion, aged about 30-32 years and would be wearing pant/shirt and it also specifically recorded that he would be coming in front of M/s. Jai Kashmir Transport Company at Sanjay Gandhi Transport Nagar, Delhi in between 1600-1700 hours. It was also specifically recorded that as per the information, he would deliver 50-60 kgs. of Charas to some one, which would be concealed in a white Maruti Car registration No. DDC-7145. All these particulars, according to the learned Counsel for the respondent, turned out to be correct at the time of raid. He further mentioned that the intelligence report, which was prepared by Sh. Rattan Chand, there and then was submitted to the Superintendent Sh. P.L. Verma, who gave authorisation dated 23.8.2003 in favor of Sh. B. Joshi, I.O. His statement was that this authorisation militates against the allegations of the petitioner. He also submitted that even in panchnama it was mentioned that the petitioner is resident of Uttaranchal as told by him and, therefore, there was no question of any discrepancy in this behalf. He also pointed out that PW-8 Rattan Chand, Intelligence Officer, had specifically stated that he was informed verbally about the said information. PW-5 Sh. P.L. Verma had also mentioned this and no suggestions was given to him by the defense. He referred to the testimony of PW-2 B. Joshi also, who had deposed on the same lines on which subsequently PW-5 and PW-8 had deposed. He further submitted that while seizing the offending material and making recovery, provisions of Section 43 were duly complied with. He further submitted that search was made by a Gazetted Officer and in such circumstances Section 42 of the NDPS Act was not applicable, as held by the Supreme Court in M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence 2003 [3] JCC 1631. He further submitted that even the petitioner had never retracted from his statement and in view of huge recovery he was not entitled to bail.

7. After hearing counsel for both the sides and examining the record, I am of the view that the alleged discrepancies pointed out by the petitioner are not of the nature that it can be said with some firmness that reasonable grounds exist to indicate that he is not guilty of the offence on the basis of material available before the Court. The trial court has rightly held that all these are the matters for consideration at the time of final arguments. I am of the opinion that the order of the learned trial court rejecting the bail to the petitioner is proper and does not call for any interference. This application is accordingly dismissed. The trial court record be sent back immediately.