Sikkim High Court
Ganesh Sharma Alias Gelal vs State Of Sikkim on 3 December, 2021
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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Single Bench: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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BAIL APPL. No. 13 of 2021
Ganesh Sharma alias Gelal
S/o Shri Shiva Lall Sharma,
Aged about 35 years.
Permanent resident of
Near Hotel Lemon Tree
Lower Sichey,
P.O. & P.S. Gangtok,
East Sikkim.
Presently at State Jail, Rongyek .... Petitioner/Applicant
Versus
State of Sikkim .... Respondent
Application under section 439 read with section 482 of
the Code of Criminal Procedure, 1973
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Appearance:
Mr. Rahul Rathi, Advocate for the petitioner/applicant.
Mr. Yadev Sharma, Additional Public Prosecutor for the State-
respondent.
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J U D G M E N T (ORAL)
( 03.12.2021)
Bhaskar Raj Pradhan, J.
1. This is a second bail application moved under section
439 read with section 482 of the Code of Criminal Procedure,
1973 (Cr.P.C.) by the applicant. It is being considered before
issuance of notice upon the respondent, however, Mr. Yadev
Bail Appl. No. 13 of 2021
Ganesh Sharma alias Gelal vs. State of Sikkim
Sharma, Additional Public Prosecutor, is present on advance
notice and opposes the application.
2. Earlier, this court had vide judgment dated
25.01.2021 in Bail Application No. 12 of 2020 (Ganesh Sharma @
Gelal vs. State of Sikkim), rejected a similar bail application
moved by the applicant. While doing so, this court had examined
the provision of section 18 of the Sikkim Anti Drugs Act, 2006
and arrived at a conclusion that it is in pari-materia to section 37
of the Narcotics Drugs and Psychotropic Substances Act, 1985.
This court had also examined the judgments of the Supreme
Court in Narcotics Control Bureau vs. Kishan Lal & Ors.1, Intelligence
Officer, Narcotics C. Bureau v. Sambhu Sonkar & Anr.2, Narcotics
Control Bureau vs. Dilip Pralhad Namade3 and Collector of Customs,
New Delhi vs. Ahmadalieva Nodira4. While examining the facts of
the case for the limited extent of examining whether or not to
grant bail to the applicant, this court had also recorded the
following at paragraphs 16 and 17. The same is reproduced
below:-
"16. The records reveal that the learned Special
Judge having found prima facie materials against
the applicant framed charges under the SADA,
2006 and the IPC. The order framing charge is not
under challenge. The materials placed before this
court are materials filed along with the charge
sheet. It reveals, prima facie, that Sandeep Chettri
(accused no.1) was apprehended on 09.06.2020
while driving a truck at the Rangpo boarder check
post and during his search and seizure various
controlled substances were recovered. The
1 (1991) 1 SCC 705
2 (2001) 2 SCC 562
3 (2004) 3 SCC 619
4 (2004) SCC (Cri) 834
Bail Appl. No. 13 of 2021
Ganesh Sharma alias Gelal vs. State of Sikkim
controlled substances were accordingly seized. It is
the case of the prosecution that during this time the
applicant constantly called Sandeep Chettri
(accused no.1) from his phone no (8918189280)
informing him that he was coming to receive the
consignment of controlled substances in his vehicle.
According to the prosecution he was thereafter,
apprehended at IBM, Rangpo after a team was
dispatched. Besides the statements of the two
seizure witnesses as pointed out by Mr. Rahul
Rathi the statement of the complainant also
implicates the applicant for the commission of the
alleged offence. The words "reasonable grounds"
under Section 18 of the SADA, 2006 would have
same meaning as has been explained by the
Supreme Court vis-à-vis Section 37 of the NDPS Act,
1985. It would connote substantial probable cause
for believing that the accused is not guilty of the
offences charged and that this reasonable belief
contemplated in turn would point to the existence of
such facts and circumstances as are sufficient in
themselves to justify recording of satisfaction that
the accused is not guilty of the offence charged.
17. This court has examined the materials which
were placed before the learned Special Judge along
with the charge sheet and the probable evidence
which are required to be tested during trial. None of
the materials placed would point to the existence of
any facts or circumstances sufficient in themselves
to justify the satisfaction that the applicant is not
guilty of the offence charged. Contravention of
Section 9(1)(c) and Section 9(4) of SADA, 2006
entails punishment of rigorous imprisonment which
shall not be less than 10 years but may extend to
14 years. Therefore, in due consideration of the
provisions of Section 439 and Section 18 of the
SADA 2006, the materials against the applicant
and the offences alleged to have been committed by
the applicant this court is of the considered view
that bail sought for by the applicant cannot be
granted. The application is accordingly rejected."
3. Mr. Rahul Rathi, learned counsel for the applicant,
had taken this court to the various depositions which have now
been recorded by the learned trial court in the matter. It is his
submission that due to the fact that various prosecution
witnesses have been examined there is a change in
circumstances and therefore, the applicant be granted bail. It is
his further submission that if one was to examine the evidence of
Bail Appl. No. 13 of 2021
Ganesh Sharma alias Gelal vs. State of Sikkim
the witnesses, it would show that the applicant would be entitled
to an acquittal.
4. According to the applicant, as of now, five witnesses
have been examined. On examination of the evidence of Ongchyo
Bhutia (PW-3), it is quite evident that what was alleged by the
prosecution has been reiterated in the deposition of Ongchyo
Bhutia (PW-3) that the applicant had been constantly calling the
accused no.1 informing him that he was coming to receive the
consignment. Although Mr. Rathi desired that this court examine
the other depositions as well as the cross-examinations, it may
not be correct to examine the effect of the depositions of the five
witnesses as depositions of the other witnesses are yet to be
recorded and any opinion by the court on it, at this stage, may
affect the final decision of the learned trial court. Suffice it to say
that at this stage the depositions placed before this court does
not connote substantial probable cause for believing that the
applicant is not guilty of the offences charged.
5. The application for bail is rejected and disposed of
accordingly with a request to the learned Special Judge to try
and complete the trial as soon as possible.
( Bhaskar Raj Pradhan )
Judge
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