Himachal Pradesh High Court
Samta vs State Of H.P on 1 May, 2024
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr. MP(M) No. 405 of 2024
Reserved on : 22.4.2024
Decided on: 30.4.2024
.
Samta
...Applicant
Versus
State of H.P.
...Respondent
___________________________________________
Coram
Hon'ble Mr. Justice Virender Singh, Judge
Whether approved for reporting?
________________________________________________
For the Applicant : Dr. Rajesh Kumar Parmar,
Advocate.
For the Respondent : Mr. Lokender Kutlehria,
Additional Advocate
General.
Virender Singh, Judge
The applicant has filed the present
application, under Section 438 of Code of Criminal
Procedure (hereinafter referred to as 'the Cr.P.C.') in case
FIR No. 125 of 2023, dated 15.9.2023, under Sections
22, 25, 29 of the Narcotics Drugs and Psychotropic
Substances Act (hereinafter referred to as 'the NDPS
Act") registered with Police Station, Gagret, District Una,
H.P.
2. The applicant has sought the indulgence of
.
this Court to direct the Investigating Officer/Police, to
release her on bail, in the event of her arrest, in the
above-mentioned case, as, she is apprehending her
arrest, in the said case.
3. According to the applicant, she has been
falsely implicated in the present case, as she is an
innocent person and has nothing to do with the case.
4. It is the further case of the applicant that
applicant has tried her luck by moving bail application,
bearing Cr. MP(M) No. 147 of 2024, which was dismissed
as withdrawn on 24.1.2024. After withdrawing the said
bail application, she has approached the learned Special
Judge-I, Una, District Una, vide Bail Application No. 37
of 2024, which was dismissed on 29.2.2024.
5. Apart from this, the applicant has given
certain undertakings, for which, she is ready to abide by,
in case, directions are issued to the Police/I.O., under
Section 438 of the Cr. P.C.
6. On all these submissions, Dr. Rajesh Kumar
.
Parma, Advocate has prayed that the bail application
may kindly be allowed.
7.1 When, put to notice, police has filed the
status report, disclosing therein that on 15.9.2023, at
about 7: 30 p.m., the I.O. was present on the gate of
Shiv Bari temple. At that time, he received a secret
information, with regard to indulgence of one Varinder
Kumar @ Bindu, s/o Shri Vikram Chand, R/o ward No.
5, NAC Gagret, Tehsil Ghanari, District Una, in the
business of selling the narcotic substance.
7.2 As per the information, a big haul of the
medicines was being transported in pick-up No. HP-36B-
8124 to his residential house from Army Ground,
Gagret. The said information was found to be authentic
and reliable. It has also been informed that in case, the
said vehicle is checked, large quantity of the narcotic
substances, could be recovered.
7. 3 It is the further case of the I.O. that in case,
the efforts to obtain the authorization letter/search
warrant would have been made, in that eventuality,
.
contraband could be removed. Thereafter, Drugs
Inspector Rajat Sharma was informed and asked to
come near the Army Ground. Thereafter, the I.O.
alongwith the police officials had proceeded towards the
Army Ground, Gagret. The information under Section,
42(2) of the NDPS Act, was prepared and submitted to
SDPO, Amb, through LHC Aruna Kumari, ANTF, Kangra.
When, the I.O., alongwith police officials reached outside
the Army Ground, Gagret, at about 8:10 p.m, he noticed
two persons, namely Avinash Bhardwaj and Kusum
Lata, who is vice president of Nagar Panchayat, Gagret.
Both of them were apprised about the secret
information, as received by the I.O. and associated in
the investigation of the case.
7.4 When, they entered the Army Ground, then,
they noticed the aforesaid pick-up, being driven by its
driver, coming towards Army Ground. The I.O., with the
help of other police officials, had stopped the said
vehicle. In the meanwhile, Drugs Inspector Rajat
Sharma also reached there, who was also associated in
.
the investigation, in the presence of local witnesses. The
I.O. has shown his identity card to both the persons,
sitting in the vehicle. Thereafter, they were inquired
about the white plastic sack. Both of them had disclosed
that this box (builty) belongs to Varinder Kumar @
Bindu, S/o Shri Vikram Chand. In the presence of these
witnesses, both the said persons were directed to come
out. Thereafter, a white coloured sack was opened and a
card board box, containing 60 card board boxes were
found in it, and in the other box, 59 card board boxes,
were found. Drugs Inspector Rajat Sharma checked the
aforesaid boxes, in the presence of the witnesses, and on
opening the boxes, Cap. Paracetamol, Dicyclomine,
Hydrocholride and Tramadol Hydrochloride capsules
Proxywel spas were found. Total 14,400 capsules were
found in the box, which has been marked as mark-I. In
the other box, which has been marked as mark-2, 14160
capsules were found. Thus, total 28560 capsules were
found.
7.5 On inquiry, the driver of the pick-up
.
disclosed his name as Maan Singh, S/o Munna Ram,
VPO Gagret, Tehsil Ghanari, District Una.
7.6 Other codal formalities were completed.
Thereafter, ruqua was prepared and submitted to Police
Station, Gagret, for the registration of the FIR.
7.7 Initially, the investigation was conducted by
Additional S.P. Rajender Kumar and thereafter, the same
was handed over to I.O./Inspector/Incharge, Police
Station, Gagret, Sh. Sunny Guleria. Spot map was
prepared. Accused Maan Singh and Mahasu Ram were
inquired. Thereafter, the matter was inquired from
Bhupender Dutta, S/o Sukhdev Chand Dutta, who was
running a chemist shop in Gagret. He was also
associated in the investigation. During investigation,
accused Mahasu Ram disclosed that the photo of goods
receipt of the parcel was forwarded to him by Varinder
Kumar @ Bindu, through whatsapp, and he was directed
to receive the said parcel from Kamal Transport, Gagret,
and hand over the same to Varinder Kumar at his home.
7.8 On inquiry, Bhupender Dutta disclosed that the
.
parcel containing contraband belong to Varinder Kumar
@ Bindu. However, the bill of the same was issued in the
name of Dutta Medical Agency, Gagret. In lieu of the
issuance of bill, Varinder Kumar @ Bindu used to pay
five boxes of Tramadol free of cost to him.
7.9 It is the further case of the Police that number of
persons were found involved in the case. Accused
Varinder Singh (Bindu) was arrested on 15.9.2023 at
about 10:30 p.m. All the four persons have been medico-
legally examined. On 16.9.2023, they were produced
before the Court of learned Chief Judicial Magistrate,
Una, who had remanded them to Police custody, for
three days.
7.10 On 16.9.2023, one Vishal Jaswal informed
the Police that one parcel in the name of Dutta Medical
Agency has been received through Kamal Transport,
upon which, Assistant Drugs Inspector Shashi Pal
reached at the spot, where owner of Kamal Goods,
through Vishal Jaswal, has produced one parcel
alongwith carbon copy of GR No. A59198, dated
.
14.9.2023, and one bill of Jan Priya Pharma 27/16,
Chhoti Sabzi Mandi Janakpuri, New Delhi, to the police.
Said bill was in the name of Dutta Medical Agency,
Gagret. When, the said parcel was opened in the
presence of witnesses, the same was found containing
25,000 tablets of Tramadol Hydrochloride tablets 100
mg Clovedol 100 SR, which is a prohibited drug. The
above medicines were taken into possession.
7.11 Thereafter, on 16.9.2023, house of Varinder
Singh @ Bindu was searched and during search, 210
boxes of liquor/beer were recovered. In this regard, FIR
No. 127 of 2023, dated 16.9.2023, under Section 39-A
of the HP Excise Act was registered.
7.12 During investigation, mobile phones of
accused, bearing Nos. 9816042336, 8278733069,
8580581311, as well as, phone of accused Maan Singh,
bearing No. 9816503646 and, of Bhupender Dutta,
bearing No. 9816956481, were taken into possession.
7.13 During investigation, it was found that
according to GR No. A59051, dated 12.9.2023, and GR
.
No. A 59198, dated 14.9.2023, parcel received through
Kamal Goods Carrier Delhi, in the name of Dutta
Medical Agency, Gagret, were forwarded by Jan Priya
Pharma 27/16 Chhoti Sabzi Mandi, Janakpuri, New
Delhi. However, when, the I.O. verified the said fact, it
was found that the said bills, were not issued by the said
firm.
7.14 On 20.9.2023, shop of Bhupender Dutta was
searched. During search, documents, pertaining to GR
No. 58021, dated 23.8.2023 and invoice No. 00325,
dated 23.3.2023, were found to be issued by Jan Priya
Pharma Company. However, as per these invoices, these
medicines were not found in the medical store.
7.15 As per letter of the Director General of Police,
Himachal Pradesh, dated 26.9.2023, investigation of the
case was transferred to CID. Consequently, a Special
Investigating Team, under the leadership of Praveen
Dhiman, HPS, Additional S.P., Cyber Crime, was
constituted. On 30.9.2023, the Special Investigation
Team had taken over the investigation.
.
7.16 During investigation, it was found that
recovered parcels, containing prohibited drugs were
received at Jaswal Goods Carrier, Gagret, through
Kamal Goods Carrier. It was also found that in the name
of Dutta Medical Agency, other transports have also
received consignment/parcels.
7.17. It was also found that Varinder Kumar was
earlier running Chemist shop, under the name and style
of 'Siddhi Vinayak', and now, he is running the same,
under the name and style of 'M.B. Pharma'. In this
regard, delivery register and challan forms were also
obtained. On the perusal of the same, it was found that
through these transports, consignment/parcels, worth
crores of rupees, were found, in the name of Sidhi
Vinayak, M.B. Medicine and Dutta Medical Agency.
7.18 The contraband, so recovered, was sent to
SFSL, Junga. Weight of the parcel was found to be
15.681 kg. The said drug was found to be sample of
Tramadol capsules. In addition to this, the weight of the
parcles, which has been marked as mark-B, containing
.
Clovedol 100 SR, was found to be 8.450 kg.
Manufacturer of the same was found to be the Akums
Drugs and Pharmaceuticals IIE SIDKUL Haridwar.
Consequently, company officials of Pure & Cure
Healthcare Pvt. Ltd., Plot No. 26A, 27-30 Sector 8A, IIE
SIDKUL, Haridwar were associated in the investigation.
On inquiry, it was found that their company is the
subsidiary of Akums Drugs & Pharmaceuticals Ltd.
Company. The factory of batch No. P06CA09 was not
found to have manufactured Proxywel Spas medicine.
7.19 As per the further stand of the Police, from
the recovered strips, eight digit number is found to be
marked, which was 20130552. As per officials of the
company, number 20130552 was the unique number of
their company, being packing material Artwork Code
number. The company used to get printed lay out from
UTS Foils and Packaging and Perfect Print Pack.
Similarly, police has also got haul of Clovedol tablets.
However, batch number was found to be erased. The
other 8 digit number 20161349 was found to be printed
.
on it. About this number, the company officials disclosed
that this number is packing material Artwork Code
number. The company used to get the said design
Artwork from Shree Ji Enterprises.
7.20 During investigation, the I.O. also found that
the accused Sahil Goswami has smuggled the
psychotropic substance from Jan Priya Pharma through
Kamal Goods Transport. These parcels were not sent by
Jan Priya Pharma, Delhi, nor, any invoice was found in
their shop.
7.21 During investigation, it was found that on
14.9.2022, when, the Police recovered the substance
from vehicle No. HP 36B-8124, Varinder Kumar has
forwarded GR No. 59051, dated 12.9.2023 and GR No. A
59198, dated 14.9.2023 to Mahasu Ram, on his phone,
through whatsapp. Accused Sahil Goswami directed
Mahasu Ram to receive parcel bearing GR No. 59051,
dated 12.9.2023, and GR No. 59198, dated 14.9.2023.
In the mobile handset, which was taken into possession
from Mahasu Ram, photos of aforesaid GR Nos were
.
found, whereas, in the mobile phone, of the applicant,
photographs of aforesaid GR Nos. were not found. Both
these handsets and GR Nos. have been sent to RFSL,
Dharamshala, for analysis.
7.22 During investigation, it was found that the
handset, on which, Varinder Singh @ Bindu on
14.9.2023, had forwarded the photographs of aforesaid
GR Nos. were having two sim cards, bearing No.
9816042336 and 8278733069. The IMEI number of
these two slots were found to be 864372062985240 and
864372062985250, whereas, Varinder Singh @ Bindu
on 15.9.2023, produced the phone mark Oppo, bearing
IMEI No. 866114046756195 and 866114046756187.
7.23 According to the police, variation in these
numbers was due to the fact that he used to conceal
mobile handset, used for transporting of drugs through
Mahasu Ram and produce some other mobile phones to
the Police. These facts have been highlighted to show
that accused is very clever person and he may destroy
the evidence. It was also found during investigation that
.
mobile handset, with the help of which, the Varinder
Singh @ Bindu has forwarded the whatsapp messages to
Mahasu Ram, in that mobile handset, w.e.f. 15.9.2023
to 6.10.2023, mobile phone numbers 8627872324 and
7807786506 were found to be operating, whereas,
according to customer application form, aforesaid mobile
numbers were issued in the name of one Abhishek, s/o
Ambika Prasad. Mobile Number 7807786506 was found
in the name of Nisha Devi wife of Tilak Raj.
7.24 On 15.10.2023, search warrant of house and
shop of Varinder Singh, husband of the applicant was
obtained. During search, some objectionable documents
were found and Indian currency of Rs. 4,42,700/- and
foreign currency of Rs. 1,40,000/- was found. On
inquiry, applicant-Meenakshi Sharma could not give
satisfactory reply. However, she has produced empty box
of Oppo, on which EMEI No. 864372062985252 and
864372062985245 were found to be printed. It has also
been found that Varinder Singh @ Bindu, in the name of
Dutta Medical Agency had transported the consignment
.
worth crores of Rupees from Jan Priya Pharma, between
2020 to 2023. These facts have been highlighted just to
show that these are forged documents.
7.25 During investigation, Police also found that
accused Varinder Singh @ Bindu used to transport the
drugs worth crores of rupees, through 42 consignments,
under the name of Dutta Medical Agency, Gagret
through Jan Priya Pharma 27/16, Chhoti Sabzi Mandi,
Janakpuri, New Delhi. The invoice No. of all the 42
consignment was found to be 000325. This fact has been
highlighted to show that the said bill was forged one.
7.26 The SIT agency, which has been constituted
to investigate the case has also perused the CCTV
footage of 'Kamal Goods Carrier', Delhi on 10.11.2023.
On invoice, which was found on 14.9.2023, one person
was found to have visited the office of Kamal Goods
Carrier, Lahori Gate, Delhi. At the instance of one Onkar
Upadhyay, he had booked one parcel, in the name of
Dutta Medical Agency, Gagret, District Una. When, he
was associated in the investigation, his statement, under
.
Section 161 Cr. P.C. was recorded. He has disclosed in
his statement that owner of JP International, Rishabh
Jain has handed over one parcel, alongwith two invoices
of Jan Priya Pharma, upon which, address of Dutta
Medical Agency was given. All these articles, alongwith
invoices, were handed over to Kaptaan Singh, who has
booked the same for transportation with Kamal Goods
Carrier, Lahori Gate, Delhi.
7.27 Thereafter, Rishabh Jain was also arrested.
In his mobile phone, a picture of GR No. A 59198, dated
14.9.2023 and one invoice in the name of Jan Priya
Pharma was found. Consequently, said Rishabh Jain
was also arrested.
7.28 On 15.11.2023, his mobile phone and laptop
were taken into possession. During investigation, said
Rishabh Jain has disclosed that he used to send the
consignment of drugs to Varinder Singh @ Bindu, at the
instance of applicant Vishal Sharma. The Modus
Operandi was to sent the consignment and to forward
the same to Jan Priya Pharma, in the name of of Dutta
.
Medical Agency, Gagret.
7. 29 At the instance of Vishal Sharma, his friend
Sahil Goswami has also forwarded the consignment of
narcotic drugs on 12.9.2023 to Varinder Singh @ Bindu,
on the address of Dutta Medical Agency, Gagret, District
Una. Search for Sahil Goswami was made on
25.11.2023.
7.30 Accused Rishabh Jain has purchased 50
boxes of Tramadol, for a sum of Rs. 1,23,000/-. The said
payment was made by Rishabh Jain, from his account,
maintained in HDFC Bank.
7.31 It is the further case of the Police that Vishal
Sharma used to call through whatsapp calls to accused
Rishabh Jain, accused Varinder Singh @ Bindu. Not
only this, he has supplied the Narcotic Drugs through
transport to accused Varinder Singh @ Bindu. Not only
this, he has deleted the record of his whatsapp calls and
chats.
7.32 After perusing the status report, interim
protection was granted to the applicant, on 26.2.2024
.
with a direction to the Police to release her on bail, in
the event of her arrest.
7.33 As per further case of the Police accused
Vishal Sharma was in constant touch with Varinder
Kumar @ Bindu on 28 occasions w.e.f. 1.9.2022 to
15.9.2023. Similarly, he was in touch with accused
Mahasu Ram, and as per the analysis of the CDRs, they
had talked to each other on 13 occasions, w.e.f.
8.12.2022 to 7.5.2023.
7.34 Accused Vishal Sharma remained in touch
with accused Sahil Goswami, w.e.f. 1.10.2022 to
16.11.2022. According to the CDRs, they had contacted
with each other on 43 occasions between 1.10.2022 to
16.11.2023.
7.35 A specific stand has been taken by the Police
that she is not cooperating with the investigation of the
case.
7.36 On checking the IMEI number of the said
Samsung mobile phone, the IMEI number of the phone,
allegedly used by him, on 12.9.2023, was found to be
.
different. On 18.12.2023, he has produced two mobile
phones, but, both the mobile phones were not found to
be working. As such, according to the Police, IMEI of the
said mobile phones could not be checked.
7.37 On 8.1.2024, accused Sahil Goswami has
purchased two mobile phones. On checking, the Police
found PDF file in mobile No.9996667601. On opening,
the same was found to be containing copy of invoice
bearing No. 33325 and due date was mentioned as
13.4.2023. The details of items which were mentioned
in invoice, are reproduced as under:-
Sr. Qty. Unit Product Rate HSN Batch Exp SGST IGST Total
No.
1 80 PCS Lifebuoy 120 3808 EHS109875 Jul- 0% 5% 9600
Hand Sanitizer
2 100 PCS N-95 Surgical 80 9018 20112020 0% 0% 800
Face Mask
3 100 PCS Dettol Hand 120 3808 DC/904 Nov- 0% 5 12000
Sanitizer (200 25 %
ML)
4 100 PCS Arcatron 3 60 9018 578 0% 6000
PLY
Disposable
Face Mask
5 100 PCS Knee Cap 120 9021 Tynor 0% 0.05 12000
Tynor
(S,M,L,XL)
7.38 According to the Police, accused Sahil
.
Goswami has also disclosed that at the instance of
Vishal Sharma, he had forwarded the parcels to Sunny
Medical Stone, Main Bazar, Gagret Road, between the
period from 2022 to December, 2023. It has also been
found that the drugs, which were being smuggled
r to
through invoices, all the parcels were being marketed
with the popular items, such as sanitizers, masks and
gloves etc. The forged invoices were also found to be less
than Rs. 50,000/-, as invoice of more than Rs. 50,000/-
were having requirement to make E-Way bill.
7.39 In order to highlight the role allegedly played
by the applicant in the commission of crime, it has been
mentioned in the status report that on inquiry, Sahil
Goswami has disclosed that on 12.9.2023, two boxes of
Proxywel Spas Capsules, which also contained 119 small
boxes, were sent to Varinder Kumar @ Bindu, through
his servant Aman Kumar, at the behest of Vishal
Sharma. Sahil Goswami has disclosed, on inquiry, that
he had purchased the above said capsules from
applicant Samta Aggarwal, w/o Mahesh Aggarwal.
.
7.40 During investigation, the CDRs of mobile
phone of Samta Aggarwal, bearing No. 7827199578 and
mobile phone of Sahil Goswami, bearing Nos.
9871267009 and 9996667601 were analyzed. During
investigation, it was also found that applicant Samta
Aggarwal and Sahil Goswami used to remain in touch
through normal calls also, from which it is clear that
both of them (applicant Samta Aggarwal and Sahil
Aggarwal) are very well known to each other. Applicant
Samta Aggarwal and Sahil Goswami are found to have
talked to each other on call on eight occasions, w.e.f.
1.9.2023 to 15.11.2023.
7.41 According to the CDR of mobile phone of
applicant Samta Aggarwal, she was found to have talked
to Naresh Sharma on seven occasions. Their whatsapp
calls data is being retrieved from the IPDR of their
mobile numbers. According to the IDPR analysis till
today, Sahil Goswami and Vishal Sharma are found to
have talked to each other on 12.9.2023 on whatsapp
call.
.
7.42 During investigation, servant of Sahil
Goswami, Aman Kumar, was associated in the
investigation, who, in his statement recorded under
Section 161 Cr. P.C., before Police and under Section
164 Cr. P.C., recorded before the Judicial Magistrate,
Amb, District Una, has disclosed that on 12.9.2023, he
received two packed boxes of tablets from applicant
Samta Aggarwal through her servant Naresh Kumar, in
Bhagirah Palace, which he had booked for Dutta Medical
Agency, Gagret from Kamal Goods Carrier. These two
boxes were taken into possession on 14.9.2023.
7.43 During investigation, Naresh Kumar, servant
of Mahesh Aggarwal and Samta Aggarwal (applicant) was
also associated in the investigation.
7.44 Applicant Samta Aggarwal has not been
found on her residence. Her husband Mahesh Aggarwal
is found to have been lodged in some jail in Punjab, in
connection with narcotic substance.
7.45 During investigation, it was found that Sahil
Goswami and Rishabh Jain have sent the haul of
.
narcotic substance with the help of their friend Vishal
Sharma. Samta Aggarwal (applicant), from whom, Vishal
Sharma, has purchased the narcotic substance, has
gone underground. She is being searched in nearby
places.
7.46 It has also been found in investigation that
Virender Kumar @ Bindu used to purchase the haul of
narcotic substance from Vishal Sharma. Vishal Sharma
used to obtain the same from Sahil Goswami and Rishab
Jain. On 14.9.2023, the haul of narcotic substance, has
been sent by Rishabh Jain, at the behest of Vishal
Sharma, from Delhi to Gagret. Rishabh Jain had
obtained the same from Mohammad Shiraj. During
investigation, Mohammad Shiraj and Rishabh Jain were
arrested. Similarly, the haul of narcotic substance,
which has been sent from Delhi to Gagret on 12.9.2023,
that was sent by Sahil Goswami at the behest of Vishal
Sharma. Sahil Goswami had obtained the same from
applicant Samta Aggarwal.
7.47 It is the further case of the Police that the
.
applicant is not cooperating with the investigation of the
case.
7.48 Another apprehension, which has been
expressed in the status report, is that the quantity of
contraband recovered in the present case, is commercial
quantity, and in case, the bail application is allowed, it
will give a wrong signal to the society, and acceptance of
the bail application will also encourage other persons to
indulge in such type of activities.
7.49 Apart from this, it has also been apprehended
that in case, the bail application is allowed, the
applicant may coerce the witnesses and may leave the
country.
8. On the basis of above facts, a prayer has
been made to dismiss the application.
9. Applicant Samta Aggarwal has been named
as accused in a case, which has been registered, under
Sections 22 and 29 of the NDPS Act. Although, the
contraband has not been recovered from the possession
of the applicant, but, as per the case set up by the
.
prosecution, the applicant was one of the persons, who
helped the main accused. Not only this, she has also not
co-operated with the investigation of the case, despite
providing interim protection to her, under Section 438
Cr. P.C. Merely, the Challan has been filed, does not
mean that the rigors of Section 37 of the NDPS Act, are
not applicable.
10. The accused has been named as accused under
Section 29 of the NDPS Act. The provisions of Sections
22 and 29 of the NDPS Act are reproduced as under:
"22. Punishment for contravention in relation to
psychotropic substances.--
Whoever, in contravention of any provision of this Act or any rule
or order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses any psychotropic
substance shall be punishable,--
(a)where the contravention involves small quantity,
with rigorous imprisonment for a term which may
extend to one year, or with fine which may extend to
ten thousand rupees or with both;
(b)where the contravention involves quantity lesser
than commercial quantity but greater than small
quantity, with rigorous imprisonment for a term
which may extend to ten years and with fine which
may extend to one lakh rupees;(c)where the
.
contravention involves commercial quantity, with
rigorous imprisonment for a term which shall not be
less than ten years but which may extend to twenty
years and shall also be liable to fine which shall not
be less than one lakh rupees but which may extend
to two lakh rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine exceeding
two lakh rupees.
29. Punishment for abetment and criminal
conspiracy.--
(1)Whoever abets, or is a party to a criminal conspiracy to
commit an offence punishable under this Chapter, shall,
whether such offence be or be not committed in
consequence of such abetment or in pursuance of such
criminal conspiracy, and notwithstanding anything
contained in section 116 of the Indian Penal Code (45 of
1860), be punishable with the punishment provided for
the offence.
(2)A person abets, or is a party to a criminal conspiracy to
commit, an offence, within the meaning of this section,
who, in India abets or is a party to the criminal
conspiracy to the commission of any act in a place
without and beyond India which--
(a)would constitute an offence if committed within
India; or
(b)under the laws of such place, is an offence
relating to narcotic drugs or psychotropic
substances having all the legal conditions required
to constitute it such an offence the same as or
analogous to the legal conditions required to
constitute it an offence punishable under this
Chapter, if committed within India."
.
11. So far as the arguments of learned Counsel
appearing for the applicant qua the fact that nothing
has been recovered from her are concerned, the term
'conscious possession of contraband' has elaborately
been discussed by the Hon'ble Supreme Court in
Union of India versus MD Nawaz Khan, reported in
(2021) 10 Supreme Court Cases 100. Relevant
paragraphs 25 and 26 of the judgment are
reproduced as under:
25. We shall deal with each of these circumstances in turn. The
respondent has been accused of an offence under Section 8 of the
NDPS Act, which is punishable under Sections 21, 27A, 29, 60(3)
of the said Act. Section 8 of the Act prohibits a person from
possessing any narcotic drug or psychotropic substance. The
concept of possession recurs in Sections 20 to 22, which provide
for punishment for offences under the Act. In Madan Lal and
Another v. State of Himachal Pradesh (2003) 7 SCC 465 this
Court held that
"19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The facts
which can be culled out from the evidence on record are that all
the accused persons were travelling in a vehicle and as noted by
the trial court they were known to each other and it has not been
explained or shown as to how they travelled together from the
same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in Chapter IV of the Act which relates
.
to offences for possession of such articles. It is submitted that in
order to make the possession illicit, there must be a conscious
possession.
21. It is highlighted that unless the possession was coupled with
the requisite mental element i.e. conscious possession and not
mere custody without awareness of the nature of such
possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which
assumes different colours in different contexts. It may carry
different meanings in contextually different backgrounds. It is
impossible, as was observed in Supdt. & Remembrancer of Legal
Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979
SCC (Cri) 1038 : AIR 1980 SC 52] to work out a completely logical
and precise definition of "possession" uniform[ly] applicable to all
situations in the context of all statutes.
23. The word "conscious" means awareness about a particular
fact. It is a state of mind which is deliberate or intended.
26. Once possession is established, the person who claims that it
was not a conscious possession has to establish it, because how
he came to be in possession is within his special knowledge.
Section 35 of the Act gives a statutory recognition of this position
because of the presumption available in law. Similar is the
position in terms of Section 54 where also presumption is
available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also
considered in Dharampal Singh v. State of Punjab (2010) 9 SCC
608 , 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 (2015)
6 SCC 222 , 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."
12. From the stand taken by the prosecution in
this case, this Court is of the view that the applicant
is not an unknown person, but, the person, who, as
per the prosecution case, was closely in contact with
the other accused persons, who have been named,
as accused in this case.
13. The contraband, allegedly recovered, in the
present case, is commercial quantity. In this
background, another question, which arises for
determination before this Court, is with regard to the
fact whether the relief, as claimed in the application,
can be granted to the applicant without satisfying
the twin conditions, as enumerated in Section 37 of
the NDPS Act. Answer to this questions is in
negative.
14. At this stage, it is difficult for this Court to
.
hold that the accused has not committed the
offence, as well as, the fact that she will not commit
any offence, if released on bail. In the absence of
above twin conditions, the relief under Section 438
15. to
of Cr. P.C. cannot be granted to the applicant.
Considering the question of granting relief,
under Section 438 Cr. P.C. is concerned, this Court
cannot ignore the provisions of Section 37 of the
NDPS Act, as held by the Hon'ble Supreme Court in
Satpal Singh versus State of Punjab, reported in
(2018) 13 Supreme Court Cases 813. Relevant
paragraph 14 of the judgment is reproduced as
under:
"14. Be that as it may, the order dated 21.09.2017 passed by
the High Court does not show that there is any reference
to Section 37 of the NDPS Act. The quantity is reportedly
commercial. In the facts and circumstances of the case, the High
Court could not have and should not have passed the order
under Sections 438 or 439 Cr.P.C. without reference to Section
37 of the NDPS Act and without entering a finding on the
required level of satisfaction in case the Court was otherwise
inclined to grant the bail. Such a satisfaction having not being
entered, the order dated 21.09.2017 is only to be set aside and
.
we do so."
16. In a recent decision, in case titled as Narcotics
Control Bureau versus Mohit Aggarwal, reported in AIR
2022 SC 3444, the Hon'ble Supreme Court has reiterated
the earlier view regarding compliance of the conditions, as
enumerated in Section 37 of the NDPS Act. The relevant
paras 10 to 15 of the judgment are reproduced, 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 subsection (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 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.AhmadalievaNodira", (2004) 3 SCC 549, 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" (2020) 12 SCC 122 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 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."
17. Considering all these facts, the present bail
application is dismissed.
18. Any of the observations, made hereinabove,
shall not be taken as an expression of opinion, on
the merits of the case, as these observations, are
confined, only, to the disposal of the present bail
application.
(Virender Singh)
Judge
April 30th, 2024
(Kalpana)
