Delhi High Court

Sayeed Abu Ala vs Narcotic Control Bureau on 7 August, 2008

Author: Anil Kumar

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Bail Appl. No.689/2007

%                   Date of decision : 07.08.2008


Sayeed Abu Ala                                    ....... Petitioner
                            Through:        Mr. Mr.Sandeep Sethi and
                                            Mr.Harjinder Singh, Sr. Advocates
                                            with Mr.Yogesh K. Saxena,
                                            Advocate for the petitioner.

                                         Versus

Narcotic Control Bureau                           ......... Respondent
                            Through :       Mr.Rajesh Manchanda, Special
                                            Public Prosecutor for Narcotic
                                            Control Bureau.


CORAM :-
* HON'BLE MR. JUSTICE ANIL KUMAR

      1.    Whether reporters of Local papers may                 YES
            be allowed to see the judgment?
      2.    To be referred to the reporter or not?                NO
      3.    Whether the judgment should be reported               NO
            in the Digest?

ANIL KUMAR, J.

This is a petition under Section 439 of the Code of Criminal

Procedure by the petitioner, Shri Sayeed Abu Ala, seeking bail.

On the basis of secret information, the office of Narcotic Control

Bureau had conducted a raid at the residential premises of the

petitioner at A-263, New Friends Colony, New Delhi. From the said

residential premises nothing was recovered and thereafter raid was

conducted at the office premises of the petitioner M/s Zenith Pharma, a

Pharmaceuticals and Chemical firm. At the time of conducting the raid,

the son of the petitioner, Abu Sualeh, had disclosed about another

premises in Old Delhi at Mohalla Kishanganj, Teliwara. From the raid

on the said premises, approximately 32 kilograms of heroin was

recovered along with equipment required for the manufacture of heroin.

Mohd. Altaf, an employee of the petitioner, was found in the said

premises.

Petitioner was also caught with 18 kilograms of heroin at

Bangalore for which he was under custody at Chennai. Later on after

the recovery of about 32 kilograms of heroin from the house at Kishan

Ganj, where the employee of the petitioner was present and from where

equipments for making heroin was also confiscated, the statement of

petitioner was recorded under Section 67, which was later on retracted

by him. Along with 32.205 Kgs. of heroin 28 bottles of Acetic Anhydride

and 79 bags of suspected Sodium Carbonate having a total weight 400

Kgs was recovered from the house of the petitioner at Mohalla

Kishanganj, Teliwara.

Mohd Altaf was issued notice under section 67 of NDPS Act and

he gave a voluntary statement under section 67 of the Act admitting

that the premises belonged to the petitioner and he was working with

him and assisting him in the manufacture of heroin. The statements of

the petitioner‟s wife and other persons were also recorded.

Since the petitioner was in prison in connection with another

seizure of 18 Kgs. of heroin in Banglore, an application was filed for his

examination which was granted and he was examined in jail from 9A.M

to 6 P.M on 12.01.2001. In his statement he admitted that the

properties owned by him at Delhi and Bangalore were purchased from

the income received from the illegal trade of narcotics. He also stated

about the manufacture of heroin from his house at Teliwara.

The petitioner has contended that from his residential house at

New Friends Colony nothing incriminating was recovered and that the

house at Kishan Ganj, Teliwara, from where 32 kilograms of heroin

along with the equipments to manufacture heroin was confiscated is on

rent to Mr.Asghar Khan. Learned counsel for the petitioner however

admitted that the entire house is not on rent and the ground floor of the

house at Kishan Ganj, Teliwara, was in the occupation of Mohd. Altaf,

who has also not been granted bail.

Learned counsel for the petitioner contended that a power of

attorney was executed in favour of the petitioner by his wife and a rent

agreement was executed in favour of Mr.Asghar Khan, who is stated to

be in occupation of the first floor. These documents, the power of

attorney and the rent agreement, were sought to be produced on behalf

of petitioner, however, the trial Court had rejected the application of the

petitioner to take those documents and the order of the trial Court has

not been challenged by the petitioner.

When the statement of the wife of the petitioner was recorded,

certain documents were produced by her, which reflected that the

house is owned by her. This is also admitted that she had executed a

power of attorney in favor of the petitioner, which is still valid.

Learned counsel for the petitioner has also contended that at the

time of seizure on 29th November, 1999, the petitioner was in Jail in

Chennai in a case pertaining to recovery of 18 Kilograms of the heroin

at Bangalore.

The learned counsel has also contended that the son of the

petitioner and his wife have been granted bail. The charge framed

against the son and the wife is under Section 25 of the NDPS Act

whereas the charges against the petitioner has been framed under

Section 29 read with section 21/22 and section 25-A read with section

9-A of the said Act. In the circumstances, it is contended that since the

co-accused have been granted bail, the petitioner is also entitled to be

released on bail especially because the petitioner is incarcerated for the

last eight years.

By order dated 24th April, 2002, the person who had supplied

acetic anhydride to one Jagbir Singh without permission/license and

who was 25 years of age was released on bail as nothing was recovered

at his instance or from his possession.

By order dated 6th April, 2004 the son of the petitioner was

granted bail by this court on his furnishing a personal bond of Rs. 2.0

lakhs. By order dated 11th April, 2005, three bail applications of Jagbir

Singh, Sanjay Kakkar and Mrs.Tahira Sayed were allowed and they

were released on bail on furnishing personal bonds in the sum of

Rs.2.00 lakh each with two sureties of the like amount. While granting

bail it was noticed that raw material/chemicals for the manufacture of

heroin which included acetic anhydride, were supplied to the petitioner,

his wife, his son and his employee, Mohd. Altaf, by one Rajinder who

had in turn brought those supplies from co-accused Sanjay Kakkar who

in turn got the same from co-accused Jagbir Singh who ultimately got

the supplies from one Mr.Ghanshyam. The learned single Judge

divided the matter into two sets of allegations one regarding the main

accused and his family members with regard to manufacture and

storage of heroin, and the other regarding employees, i.e. Rajinder,

Sanjay Kakkar, Jagbir Singh and Ghanshyam, for having made

supplies of raw materials and chemicals. Since they were alleged to be

middle links in the supply chain of which accused Ghanshyam and

accused Rajinder formed the beginning and end of the chain and since

they had been enlarged on bail by order dated 25th September, 2001

(Rajinder) and 24th April, 2002 (Ghanshyam), Jagbir Singh was also

granted bail.

Apparently, the case of the petitioner is distinct and the role of

the petitioner is also different. The petitioner has also been running a

chemical/pharmaceuticals business and from the house of his wife, for

which a power of attorney was given by her to the petitioner, about 32.0

kilograms of heroin and the equipment used for manufacture of heroin

was recovered where the co-accused Mohd. Altaf, his employee was

present and who has not been granted bail.

In the circumstances, it cannot be held that there is no other

evidence against the petitioner other than the confession of the co-

accused. In his statement, he stated that he started manufacturing

heroin at the agricultural farm of Bhiwani Singh and that the petitioner

was transporting the heroin to Bangalore for sale. He also admitted

that manufacturing of heroin started at his house at Kishan Ganj,

Teliwara, on top floor and he was assisted by Bhiwani Singh and

another man, his employee, Altaf. Though the statement recorded by

NCB are subject to closer scrutiny, however, considering the entire

statement and other circumstances, the petitioner cannot contend that

his case is similar to that of his wife and his son who have already been

granted bail.

The petitioner who was arrested on 29th January, 1999 and is in

custody since then was granted interim bail on the ground that he was

not well and suffering from High Blood Pressure with coronary artery

disease. The petitioner was admitted at DDU Hospital from 11th June,

2007 to 13th June, 2007. After his discharge from DDU Hospital he was

admitted to Jail Hospital till 21st June, 2007. Pursuant to the order

dated 31st August, 2007 a Medical Board was constituted which opined

that treatment and investigation can continue at G.B.Pant Hospital

where treatment is already going on and he was granted interim bail on

medical grounds on furnishing personal bond of Rs.1,00,000/- with two

sureties of the like amount. The interim bail granted to the petitioner by

the Trial Court was extended on the same terms and conditions by

order dated 11th January, 2008 and thereafter it has been extended till

7th August, 2008.

Another Medical Board was constituted by order dated 30th May,

2008. The said Board had opined by its report dated 26th June, 2008

that he needs an upper GI endoscopy and sigmoidoscopy which can be

done electively on an outpatient basis. The relevant portion of the

report is as under:

" Based on above, the medical board is of the opinion that currently the accused Syed Abu Ala has HTN, CAD, TAD with normal LV function, class II dyspnoea of exertion, Gd.- I piles without active bleed, and erosive gastritis with h/o small volume haematemesis. He was advised CABG surgery in 2004 which as per history the patient declined for personal reasons. There has been significant improvement in the patient‟s cardiac symptoms since the previous evaluation performed on 31st August, 2007. Based on these findings, the Board opines that the accused Syed Abu Ala needs (admission for) CABG surgery, which can be done on an elective basis. Prior to CABG, he needs an upper GI endoscopy and sigmoidoscopy which can be done electively on an outpatient basis. He may be followed up at G.B.Pant Hospital where he has already been investigated for these diseases.

The learned counsel for the respondent has pointed out that

though the CABG surgery was recommended in 2004 it was declined by

the accused and even now it is recommended only on an elective basis.

It was also pointed out that the other treatments, which have been

recommended prior to CABG surgery, can also be done electively on an

outpatient basis. The learned counsel for the respondent has also

pointed out the outpatient test results of the petitioner and has

contended that in his haematology report only Eosinophils are not

within the normal range. He has also pointed out that the petitioner has

been advised rest and for that purpose he cannot be released on interim

bail.

This is no more res integra that the jurisdiction of the court to

grant bail is circumscribed by the provision of Section 37 of the NDPS

Act. It can be granted in a case where there are reasonable grounds for

believing that the accused is not guilty of such offence and that he is

not likely to commit any offence while on bail. It is the mandate of the

legislature which is required to be followed. At this juncture a reference

to Section 37 of the Act will be appropriate which is as under:

"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 a term of imprisonment of five years or more under this Act 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."

The aforesaid section was incorporated to achieve the object as

mentioned in the Statement of Objects and Reasons for introducing Bill

No. 125 of 1988 thus:

"Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt." (emphasis supplied)

This legislative mandate is required to be adhered to and has to

be followed. It would be relevant to consider the object behind this

mandate. In a murder case, the accused commits murder of one or two

persons, while those persons who are dealing in narcotic drugs are

instrumental in causing death or in inflicting death-blow to a number of

innocent young victims, who are vulnerable; it causes deleterious effects

and a deadly impact on the society; they are a hazard to the society;

even if they are released temporarily, in all probability, they would

continue their nefarious activities of trafficking and/or dealing in

intoxicants clandestinely. The reason may be large stakes and illegal

profit involved. This Court, dealing with the contention with regard to

punishment under the NDPS Act, has succinctly observed about the

adverse effect of such activities in Durand Didier v. Chief Secy., Union

Territory of Goa (1990) 1 SCC 95 as under: (SCC p.104, para 24)

"24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances

have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine."

Therefore the person accused of offences under the NDPS Act

should not be released on bail during trial unless the mandatory

conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail

are satisfied. In the case of the petitioner about 32 Kgs of heroin along

with equipment and other chemicals used for manufacture of the heroin

were recovered from his house. The petitioner has business of

pharmaceuticals and chemicals. Though the house from which the

above-said heroin and equipments were recovered was in the name of

the petitioner‟s wife, she had executed a power of attorney in favour of

the petitioner. The employee of the petitioner was present when the

recovery was made. Statements have been made under section 67 by

Mohd. Atlaf, the employee of the petitioner, his wife, his son and he

himself which shows his complicity, though the statements made were

retracted later on.

The learned counsel for the petitioner has relied on 116(205) DLT

354 (SC), Jayendra Saraswathi Swamigal v. State of Tamil Nadu to

contend that Section 10 of the Evidence Act cannot be pressed into

service and the confessions cannot be relied on. Perusal of the said

judgment, however, reveals that it is quite distinguishable from the case

at hand. In Jayendra‟s case the confessions were recorded long after the

murder when the conspiracy had culminated and therefore it was held

that Section 10 of the Evidence Act could not be pressed into service as

there was no other independent evidence. Even then the Apex Court

had held that no concluded opinion on this question could be given in

the facts and circumstances of that case. The Apex Court had observed

as under:-

"10...........Here, the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and, therefore, Section 10 of the Evidence Act cannot be pressed into service. However, we do not feel the necessity of expressing a concluded opinion on this question in the present case as the matter relates to grant of bail only and the question may be examined more deeply at the appropriate stage."

This cannot be disputed that if prima facie evidence of the

existence of a conspiracy is available, the statements made by any one

of the conspirators in furtherance of the common object is admissible

against all. For such admissibility, there must be first a prima facie

evidence that the person was a party to the conspiracy, before his acts

or statements can be used against his co-conspirators. In Jayendra

Saraswati Swamigal (Supra) in para 12 of the judgment the Supreme

Court had held that no worthwhile prima facie evidence apart from the

alleged confessions had been brought to the notice of the Court and,

therefore, the confessions of the accused were not relied upon.

In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra &

Anr, JT 2005 (4) SC 123 it was held that the Court does not have to

reach a positive finding that the accused has not committed the offence

accused of before granting bail. This is no more res integra that for

purpose of considering an application for grant of bail no detailed

reasons are necessary, however, granting or refusing to grant bail must

demonstrate application of mind, at least in serious cases, as to why

the accused has either being granted or denied the privilege of bail. The

duty of the Court at the stage of granting bail is not to weigh the

evidence meticulously but arrive at a finding on the basis of broad

probabilities. While dealing with the case of MCOCA in Ranjitsing

Brahmajeetsing Sharma (Supra) the Apex Court also held that dealing

with such Statutes the Court may have to probe into matter deeply so

as to enable it to arrive at a finding that the materials collected against

the accused during the investigation must justify a judgment of

conviction. In para 57 at page 145 the Apex Court had held as under:-

"56. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in subsection (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial without in any manner being prejudiced thereby."

The other precedent relied on by the petitioner, 121 (2007) DLT

166, Ram Narayan v. State is also clearly distinguishable, as on the

basis of material brought on record it was held that there was every

likelihood that the accused may not be convicted as there was difference

in the test results of the samples taken from the same packet, which had

cast doubts on whether case property was the same as alleged to be

recovered from the accused. The accused in the said case also had no

criminal antecedents or propensity to commit any offence under the

NDPS Act entitling him to bail and in the circumstances it was held that

the mandatory conditions for grant of bail were satisfied.

The learned counsel for the respondent has relied on 2002(2) JCC

949, Atul B.Kohly v. N.C.B; AIR 2000 SC 2245; Hardev Singh v. State;

1996 SCC (Cri) 820; State of Maharashtra v. Som Nath Thapa & Ors;

AIR 2007 SC 451 and Rajesh Ranjan Yadav v. CBI and 2003 SCC (Crl)

1690, State Through Secretary, Central Narcotics Deptt, Lucknow v.

Syed Amir Hasnain to contend that the petitioner is not entitled for bail

in the present facts and circumstances. The learned counsel for the

respondent has also placed reliance on AIR 1992 SC 1795, Poolpandi v.

Superintendent, Central Excise to contend that there was no

compulsion against the petitioner to give the statement. It was

contended that the compulsion can be inferred only where the

statement has been taken after starvation or beating or where by

deceitful means an accused has been induced to believe something

which is not true. The learned counsel also contended that merely

because a person is in police custody at the time the statement is made

will not mean that there was compulsion against him. In Atul B. Kohly

(Supra) the accused was earlier convicted in Italy for sending heroin to

England and Holland and later heroin weighing 1.810 kg was recovered

from a co-accused and statement was recorded under Section 67 of

NDPS Act of the co-accused, showing involvement of other accused and

of another person in possessing heroin from India and transporting it to

Italy. The main accused had also confessed his involvement in his

statement under Section 67, which statement was later retracted by

him. The bail application of such a person who had been in custody for

3½ years was declined. In Hardeo Singh (Supra) the Apex Court had

held that some general evidence pertaining to the conspiracy would be

sufficient to form part of the charge of conspiracy in the charge sheet.

The Apex Court had clarified that some connecting link or connecting

factor somewhere would be good enough for framing of charge. It was

held that for the charge of conspiracy there should be cogent evidence

of meeting of two minds in the matter of commission of an offence.

In Som Nath Thapa & Ors. (Supra) the Apex Court had held that

to establish a charge of conspiracy, knowledge about the indulgence in

either an illegal act or a legal act by illegal means is necessary. It was

held by the Apex Court that the prosecution is not to establish that a

particular unlawful use was intended so long as the goods or service in

question could not be put to any lawful use. As the ultimate evidence

consists of chain of action, it would not be necessary for the

prosecution to establish, to bring home the charge of conspiracy that

each of the conspirators had the knowledge of what the collaborator

would do, so long as it is known that the collaborator would put the

goods or service to an unlawful use.

In (2008) 4 SCC 668, Kanhiya Lal v. Union of India, it was held by

the Supreme Court that a statement made under section 67 of the

NDPS Act is not the same, as a statement made under section 161 of

the Code unless made under threat or coercion and therefore the

statement thus made can be used as confession against the person

making it and excludes from the operations of section 24 to 27 of the

Evidence Act. The ratio of the said case was that conviction can be

maintained solely on the basis of a confession made under section 67 of

the NDPS Act.

The learned counsel for the petitioner has also contended that the

statement of the petitioner recorded under Section 67 of the NDPS Act

was in violation of Article 20 (3) of the Constitution of India. In

Kanhaiyalal Vs Union of India, the Supreme Court had considered the

question as to whether a statement made under section 67 of the NDPS

Act would attract the bar both of section 24 to 27 of the Indian

Evidence Act as also Article 20 (3) of the Constitution of India. The

Court held that as long as the statement was made by the accused at a

time prior to his being formally charged with the offence, the bar under

section 24 to 27 would not operate nor would the provisions of Article

20 (3) of the Constitution be attracted. In para 36 the Supreme Court

observed:-" A parallel may be drawn between the provisions of section

67 of the NDPS Act and section 107 and 108 of the Customs Act and to

a large extent section 32 of the Prevention of Terrorism Act, 2002 and

section 15 of the Terrorist and Disruptive Activities (Prevention) Act,

1987. These are all special Acts meant to deal with special situations

and circumstances. While the provisions of the Prevention of Terrorism

Act, 2002, and TADA Act, 1987, are much more stringent and excludes

from its purview the provision of Section 24 to 27 of the Evidence Act

with regard to confession made before a police officer, the provisions

relating to statements made during inquiry under the Customs Act and

under the NDPS Act are less stringent and continues to attract the

provisions of the Evidence Act. In both the enactments, initially an

inquiry is contemplated during which a person may be called upon to

provide any information relevant to the inquiry as to whether there has

been any contravention of the provisions of the Act or any Rule or order

made there under. At that stage the person concerned is not an accused

although he may be said to be in custody. But on the basis of the

statements made by him he could be made an accused subsequently.

What is important is whether the statement made by the person

concerned is made during inquiry prior to his arrest of after he had

been formally charged with the offense and made an accused in respect

thereof. As long as such statement was made by the accused at a time

when he was not under arrest, the bar under section 24 to 27 of the

Evidence Act would not operate nor would the provisions of Article 20

(3) of the Constitution be attracted. It is only after a person is placed in

position of an accused that the bar imposed under the aforesaid

provision shall come into play." Therefore the bar under Article 20 (3)

would have operated only if the petitioner had made the statement after

he had been placed in the position of an accused in the case. In the

present case though it is true that the statement of the petitioner under

section 67 of the NDPS Act was recorded while he was in Central Jail,

Chennai, however, he was incarcerated in relation to another case. At

the time his statement was recorded, the petitioner was not an accused

in present case. In Pon Adithan v. Dy. Director, Narcotics Bureau,

(1999) 6 SCC 1, it was held that even if a person is placed under arrest

and thereafter makes a statement which seeks to incriminate him, the

bar under Article 20 (3) of the Constitution would not operate against

him if such statement was given voluntarily and without any threat or

compulsion and if supported by corroborating evidence.

In State of Bombay v. Kathi Kalu Oghad and Ors., AIR 1961 SC

1808, the issue before an eleven Judge Bench of the Supreme Court

was the interpretation of Article 20 (3) of the Constitution. The Supreme

Court had held in para 18 as under:

"1. An accused person cannot be said to have been compelled to be a witnesses against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the interference that the accused was compelled to

make the statement, though the fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

2. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not `compulsion‟.....

Consequently it cannot be held that the statement given by the

petitioner while he was in custody in another case will attract the bar of

Article 20 (3) of the Constitution of India. The statement was made by

the petitioner before he was formally charged in the present case. For

the foregoing reasons it cannot be inferred that there are reasonable

grounds for believing that the accused is not guilty and that he is not

likely to commit offense again if released on bail. For granting or

refusing bail the Court has to consider the broad probabilities and in

the circumstances, it will not be appropriate to grant bail to the

petitioner.

The petitioner required CABG surgery on elective basis which

has been declined or avoided by him since 2004 and he is continuing