M.Shanmuga Priya vs The Intelligence Officer
2021 Latest Caselaw 5424 Mad

                                                                                   Crl.OP.No.1806 of 2021


                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 02.03.2021

                                                           CORAM

                          THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                    Crl.O.P.No.1806 of 2021

                M.Shanmuga Priya                                                    ... Petitioner

                                                             Vs.

                The Intelligence Officer,
                Narcotics Control Bureau,
                Chennai
                (NCB.F.No.48/1/11/2019-NCB/MDS)                                  ... Respondent


                Prayer:
                                   Criminal Original Petition filed under Section 439 Cr.P.C.,

                praying to enlarge the petitioner on bail in connection with CC.No.17 of

                2020 on the file of the Special Judge, II Additional Special Court for

                Exclusive Trial of Cases under NDPS Act, Chennai.

                                   For Petitioner      : Mr.S.Ashok Kumar
                                                        for Mr.V.Johnson Yuvaraj


                                   For Respondent      : Mr.N.P.Kumar,
                                                         Special Public Prosecutor for NCB cases


                1/12

https://www.mhc.tn.gov.in/judis/
                                                                         Crl.OP.No.1806 of 2021




                                                   ORDER

The petitioner, who was arrested and remanded to

judicial custody by the respondent on 10.08.2019 for the alleged offences

under Sec. 8(c) r/w 20(b)(ii)(C), 28 and 29 of the Narcotics and

Psychotropic Substances Act, seeks bail.

2. The case of the prosecution is that the respondent

received information on 09.08.2019, and on the basis of the specific

information, a team of NCB officers went to Egmore Railway Station and

procured two independent witnesses, and intercepted the petitioner and

allegedly upon enquiry by the NCB officers, the petitioner revealed that she

was in possession of 62 Kgs of ganja. The bags of the accused were taken

to Platform No. 5 and after explaining Sec. 50 of the NDPS Act, on the

request of the Accused person, the NCB officials opened the bags one by

one and it was found that the bags contained “brownish green colour dry

leaves”. The same was tested in a “DD Kit” which answered positive for

Ganja and on the spot itself samples were drawn, which were packed,

sealed and marked. On weighing, the total quantity of the ganja was

https://www.mhc.tn.gov.in/judis/ Crl.OP.No.1806 of 2021

62.600 Kgs. Seizure Mahazaar proceedings were drawn on the spot and the

entire mahazaar proceedings were completed at 13.30 hours on

10.08.2019. Thereafter, the petitioner was taken to the Office of the

Respondent situated at Office of the Zonal Director, Narcotics Control

Bureau, Plot No. FD2, 2nd Main Road, 3rd Avenue, TNHB Layout,

Ayappakkam, Chennai 600 077 and on the next day .i.e., 11.08.2019, the

petitioner was arrested after allegedly recording her confession statement

under Sec. 67 of the NDPS Act.

3. The further case of the prosecution is that the

petitioner is said to have allegedly received the contraband from a person

at Vishakapattinam, which is concealingly packed in trolley bags and travel

bags with the instruction to deliver the bags to a person named Vanitha in

Pudukottai. The respondent police filed final report in the form of complaint

on 30.01.2020.

4. The learned counsel for the petitioner would submit

that the petitioner never had conscious possession of the contraband and

she is a victim of circumstances. The initial burden is on the prosecution to

https://www.mhc.tn.gov.in/judis/ Crl.OP.No.1806 of 2021

prove that the petitioner is in conscious possession and to prove the same

beyond reasonable doubt and not on preponderance of probabilities. The

respondent has not followed mandatory procedures as contemplated under

Section 50 of NDPS Act. The contraband was not seized before the

Gazetted Officer or Magistrate as stipulated under Section 50 of NDPS Act.

Further, the joint communication made under Section 50 of NDPS Act is

illegal and the petitioner was not searched by female as mandated by the

provision of NDPS Act and it is also repeatedly held by the Hon'ble

Supreme Court of India. As far as the petitioner is concerned, the search

and recovery was completed on 10.08.2019 at about 13.30 hours at

Egmore Railway Station, Chennai. Thereafter she was taken to the

respondents' office at Ayappakkam, Chennai and recorded confession

statement. On the next day, she was shown to arrest in the present case.

Therefore, the statement recorded from the petitioner under Section 67 of

NDPS Act cannot be voluntary one and the same is inadmissible in

evidence. The sample also was not taken as per the direction issued by the

Hon'ble Supreme Court of India.

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4.1 He further submitted that as per the case of the

prosecution, seized contraband was “brownish green colour dry leaves”

weighing 62.600 kgs and as such the definition of ganja is completely differ

from the contraband seized from the petitioner. He further submitted that

now our country has voted for removal of cannabis and its resin as most

dangerous drug from schedule IV of '1961 convention'. Based on the

majority of votes by all the countries along with our country, the “United

Nations Commission on Narcotic Drugs” deleted cannabis and its resin as

most dangerous drug from the convention. Since NDPS Act was enacted by

India for controlling drug abuse and implementing its obligations under

international conventions, therefore as per the latest development of

deleting the contraband by the Unites States wherein India also supported

the deletion would have direct impact on the prevailing law of India with

regards to Section 37 of NDPS Act. Therefore, it is not applicable to the

petitioner. Further, he submitted that the petitioner is suffering from

infraumbilical incisional hernia and she is taking treatment repeatedly in

Stanley Government Hospital. Further her male child is suffering from

congenital heart disease and requires regular treatment and follow up.

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Further after laying charge sheet, now the trial is pending. In support of his

contention, he also relied upon the following judgments:

(i) Tofan Sing Vs. State of Tamil Nadu reported in

2020 SCC Online SC 882

(ii) Noor Aga Vs. State of Punjab and another

reported in (2008) 16 SCC 417

(iii) State of Rajasthan Vs. Parmanand & Another

reported in (2014) 5 SCC 345

(iv) State of Punjab Vs. Baldev Sing

reported in (1999) 2 SCC 172

(v) Union of India Vs. Mohanlal and another

reported in (2016) 3 SCC 379

(vi) Bhola Singh Vs. State of Punjab

reported in (2011) 11 SCC 653

(vii) Danraj Vs. State of Tamil Nadu

in Crl.A.No.319 of 2012

(viii) Trilok Chand Vs. State of Himachal Pradesh

reported in (2020) 10 SCC 763

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(ix) Nemi Chand Vs. State of Rajasthan

reported in (2018) 17 SCC 448

5. Per contra, the Special Public Prosecutor appearing for

the respondent submitted that the petitioner is the resident of Pudukottai.

She along with another are indulging in trafficking of Ganja. They were in

possession of 62.600 kgs of ganja and they were coming from

Visakapatnam to Pudukottai by train. On special information, NCB team

conducted enquiry with the petitioner and found contraband from their

possession. After completing mahazar proceedings, they were summoned

to the Office for further enquiry. Their voluntary confession statements

were recorded under Section 67 of NDPS Act. He further submitted that the

provision of Section 50 of NDPS Act was duly followed and accordingly

search was conducted by the Officers with witnesses. The seized

contraband is commercial quantity. Hence, Section 37 of NDPS Act attracts

as against the petitioner. She has to satisfy the twin conditions of Section

37 of NDPS Act that there are reasonable grounds for believing that they

are not guilty of such offence and that they are not likely to commit any

offence while on bail. Here, the petitioner failed to satisfy the twin

conditions as contemplated under Section 37 of NDPS Act. Therefore, this

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Court repeatedly dismissed the bail petition to the petitioner herein. Insofar

as the health ground is concerned, the petitioner was treated at

Government Hospital on 19.10.2019 and thereafter she was discharged on

24.10.2019. Further she is also entitled to avail medical facilities in the

prison and at any Government Hospital based on the reference or

recommendation of the medical officer attached with the Central Prison for

Women. Therefore, he prayed for dismissal of the bail petition.

6. Heard Mr.S.Ashok Kumar, the learned counsel for the

petitioner and Mr.N.P.Kumar, Special Public Prosecutor for NCB cases

appearing for the respondent.

7. The learned counsel for the petitioner raised the

following grounds for grant of bail.

(i) The petitioner suffered with infraumbilical incisional hernia and

her male child is suffering from congenital heart disease and as such she

requires regular treatment and follow up .

https://www.mhc.tn.gov.in/judis/ Crl.OP.No.1806 of 2021

(ii) The petitioner was arrested and remanded to judicial custody

on 10.08.2019. The respondent did not follow the procedure as

contemplated under Section 50 of NDPS Act. The petitioner was taken to

the respondent's Office and recorded her statement in front of police

officials. Therefore, it is not voluntary one and as such it is inadmissible.

(iii) India has voted removing the cannabis and its resin as most

dangerous drug from schedule IV of '1961 convention'. Based on the

majority of votes by worldwide countries along with India, 'United Nations

Commission on Narcotic Drugs' deleted the cannabis and its resin as most

dangerous drug from the convention. Therefore, bar under Section 37 of

NDPS Act is not applicable to the petitioner.

8. In support of his contention, he relied upon various

judgments. All the judgments relied upon by the petitioner are held after

trial. The grounds raised by the petitioner can be considered only during

the trial by let in evidence. Now the respondent completed investigation

and filed final report and the trial is pending in CC.No.17 of 2020 on the file

of the Special Judge, II Additional Special Court for Exclusive Trial of Cases

under NDPS Act, Chennai.

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9. On secret information, the respondent went to Egmore

Railway Station with two independent witnesses and intercepted the

petitioner along with other accused. The petitioner and another were found

in possession of contraband weighing 62.600 kgs of ganja. Thereafter they

completed mahazar proceedings and she was taken to respondent's office.

She had given her voluntary confession statement under Section 67 of

NDPS Act and thereafter she was arrested and remanded to judicial

custody. Though the petitioner took specific stand that she was not in

conscious possession of contraband, nothing to show that she was not in

conscious possession of contraband. That apart, it can be considered

before the trial court by let in evidence. Admittedly, the contraband was

seized under the seat and it is also admitted by the petitioner that the

contraband belong to herself and another. Therefore, the respondent duly

followed the procedure contemplated under Section 50 of NDPS Act.

10. Insofar as removal of cannabis and its resin from

schedule IV of '1961 convention' by the United Nations Commission on

Narcotic Drugs is concerned, even till today no amendment came into force

in the NDPS Act by removing the cannabis and its resin from schedule IV

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as most dangerous drug. The petitioner also failed to satisfy the twin

conditions as contemplated under Section 37 of NDPS Act, since the seized

contraband is commercial quantity. Therefore, there is absolutely no

change of circumstances for considering the bail petition of the petitioner

herein.

11. In view of the above discussion, this criminal original

petition is dismissed. However, the petitioner is at liberty to raise all the

above grounds before the trial court.

02.03.2021

Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order lok

To

1. The Intelligence Officer, Narcotics Control Bureau, Chennai

2. The Public Prosecutor, Madras High Court, Chennai.

https://www.mhc.tn.gov.in/judis/ Crl.OP.No.1806 of 2021

G.K.ILANTHIRAIYAN, J

lok

Crl.O.P.No.1806 of 2021

02.03.2021

https://www.mhc.tn.gov.in/judis/