Sikkim High Court
Sagar Pradhan vs State Of Sikkim on 15 May, 2021
Bench: Bhaskar Raj Pradhan
1
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Bail Application No. 07 of 2021
Sagar Pradhan,
Son of Kamal Pradhan,
Resident of Arithang,
P.O. & P.S. Gangtok, East Sikkim.
At present: State Jail, Rongyek,
Gangtok, East Sikkim .... Applicant
versus
State of Sikkim .... Respondent
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Application under Section 439 of the Code of Criminal
Procedure, 1973.
Appearance:
Mr. D. P. Luitel, Advocate for the Applicant.
Mr. Hissey Gyaltsen, Assistant Public Prosecutor for
the State Respondent.
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Date of hearing : 05.04.2021 & 07.04.2021
Date of Order : 15.05.2021
ORDER
Bhaskar Raj Pradhan, J
1. This bail application has been filed by the applicant,
one of the three co-accused persons facing trial under the
Sikkim Anti Drugs Act, 2006 (SADA, 2006). The facts
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
necessary for the decision of this application is being
narrated.
2. On 15.05.2020, an FIR was lodged before the Sadar
Police Station, Gangtok, stating that on 15.05.2020, at
around 1720 hours, beat 25 informed over WT set that one
unknown person along with a bedding case was detained
by some locals near Tadong Senior Secondary School and
reported that he was suspected to be carrying contraband
substances in it. The informant, as per the direction of the
Station House Officer (SHO), visited the locality and
conducted inquiry. Krishan Gopal Chettri along with the
bedding case, was found to be guarded by beat police and
the locals, who reported that they had seen two persons
carrying a bedding case in a suspicious manner. When they
inquired from them, one of the person ran away. They
managed to detain Krishna Gopal Chettri and informed the
beat personnel, who conducted the search and seizure. The
following items were seized from inside the bedding case
carried by Krishna Gopal Chettri:-
"1. 85 bottles of Relax cof T cough syrup bearing
batch no.07108-SD2, mfg. Oct.2018, Exp:
Sept, 2020 marked as exhibit A. Out of 85
bottles one bottle was taken out packed &
sealed separately and marked as exhibit S1.
2. 68 phials of blue colored WINSPASMO
capsules bearing batch no. WBS19012, Mfg.
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
Aug. 2019, Exp. July 2021, each phial
containing 08 capsules, totaling 544
capsules marked as exhibit B. Out of 68
phials one phial was taken out packed &
sealed separately and marked as exhibit S2.
3. 08 phials of Nitrosun 10 tablets bearing
batch no. AB04703, Mfg. 12/2019,
Exp.11/2022, each phial containing 10
tablets totaling 80 tablets. Out of 8 phials
one phial was taken out packed & sealed
separately and marked as exhibit S3."
3. On completion of the investigation, charge-sheet was
filed on 19.07.2020 on finding prima facie case under
Section 7 (a)(b)/9/14 of the Sikkim Anti Drugs Act, 2006
read with Section 9(1)(b) of the Sikkim Anti Drugs
(Amendment) Act, 2017 and Section 34 of the Indian Penal
Code, 1860 (IPC) against the accused Krishna Gopal
Chettri, Dipen Chettri and the applicant for intra-state
illicit trafficking of contraband substances without any
valid medical prescription issued by a registered medical
practitioner.
4. On 24.12.2020, the learned Special Judge, (SADA,
2006), East Sikkim at Gangtok, framed four charges
against the applicant under Section 9(1)(c) of the SADA,
2006 read with Section 34 IPC; Section 9(1)(a) of the SADA,
2006 read with Section 34 IPC; Section 9(1)(b) of the
SADA, 2006 read with Section 34 IPC and Section 9(4) of
the SADA, 2006 read with Section 34 IPC.
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
5. On the same date, the learned Special Judge directed
the examination of the prosecution witnesses from
07.06.2021 till 17.06.2021. Therefore, the prosecution
witnesses are yet to be examined.
6. The applicant has made two futile attempts for
securing his bail from the learned Special Judge. On
02.02.2021, the second bail application was rejected on the
grounds that his involvement in the case could not be ruled
out and that charges, after having found prima facie case,
had been framed.
7. It transpires that on the failure of the prosecution to
file the charge-sheet within the stipulated time, Krishna
Gopal Chettri was granted default bail under Section 167(2)
of the Cr.P.C. on 14.08.2020. Deepen Chettri, the other co-
accused, was granted regular bail by this Court on
19.01.2021.
8. The learned counsel for the applicant submits that the
applicant has been languishing in the State Jail from
13.11.2020, i.e., the date he was arrested, till now on mere
suspicion. The charge-sheet having been filed, the only
material pressed against him is the statement of the co-
accused Krishna Gopal Chettri recorded under Section 161
of the Cr.P.C., which is a weak piece of evidence. It is
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
submitted that in the present case both the co-accused are
on bail and on the grounds of parity itself, the applicant is
also entitled to bail.
9. Per contra, Mr. Hissey Gyaltsen, learned Assistant
Public Prosecutor (APP), submits that the statement of the
co-accused Krishna Gopal Chettri clearly implicates the
applicant. Besides the statement of the co-accused,
attention was also drawn to the statement of one Abhijit
Tamang recorded under Section 161 Cr.P.C., which
according to the learned APP also implicates the applicant.
The learned APP also drew the attention of this Court to
Section 18 of the SADA, 2006 and submitted that the
applicant had failed to satisfy this Court 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. He referred to State of M.P. vs. Kajad1; Union of
India vs. Shiv Shanker Kesari2 and Union of India and Anr. vs.
Sanjeev V. Deshpande3, in which the Supreme Court
considered Section 37 of the NDPS Act, which is in pari-
materia to Section 18 of the SADA, 2006. He also referred
to the judgment of this Court in Ganesh Sharma @ Gelal v.
(2001) 7 SCC 673
2 (2007) 7 SCC 798
3 (2014) 13 SCC 1
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
State of Sikkim4, in which Section 18 of SADA, 2006 was
considered.
10. Mr. Luitel submitted that the facts in the present case
are completely different to the case referred to by the
learned APP.
11. In Kajad (supra), the Supreme Court while examining
Section 37 of the NDPS Act, held:
"5. ..................... The purpose for which the Act
was enacted and the menace of drug trafficking which it
intends to curtail is evident from its scheme. A perusal of
Section 37 of the Act leaves no doubt in the mind of the
court that a person accused of an offence, punishable for a
term of imprisonment of five years or more, shall generally
be not released on bail. Negation of bail is the rule and its
grant an exception under sub-clause (ii) of clause (b) of
Section 37(1). For granting the bail the court must, on the
basis of the record produced before it, be satisfied that
there are reasonable grounds for believing that the
accused is not guilty of the offences with which he is
charged and further that he is not likely to commit any
offence while on bail. It has further to be noticed that the
conditions for granting the bail, specified in clause (b) of
sub-section (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal Procedure
or any other law for the time being in force regulating the
grant of bail. Liberal approach in the matter of bail under
the Act is uncalled for."
12. In Shiv Shanker Kesari (supra), the Supreme Court
held:
"6. As the provision itself provides that no person shall be
granted bail unless the two conditions are satisfied. They are;
the satisfaction of the court that there are reasonable grounds
for believing that the accused in not guilty and that he is not
likely to commit any offence while on bail. Both the conditions
have to be satisfied. If either of these two conditions is not
satisfied, the bar operates and the accused cannot be released
on bail."
Judgment (oral) dated 25.01.2021 of the High Court of Sikkim in Bail Application No. 12 of 2020
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
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"11. The court while considering the application for bail
with reference to Section 37 of the Act is not called upon to
record a finding of not guilty. It is for the limited purpose
essentially confined to the question of releasing the accused on
bail that the court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty and records it
satisfaction about the existence of such grounds. But the court
has not to consider the matter as if it is pronouncing a judgment
of acquittal and recording a finding of not guilty."
13. In Sanjeev vs. Deshpande (supra), the Supreme Court
held:
"5. Section 37 of the Act stipulates that all the offences
punishable under the Act shall be cognizable. It further
stipulates that:
(1) persons accused of an offence under Sections
19, 24, 27-A or persons accused of offences involved in
"commercial quantity" shall not be released on bail, unless
the Public Prosecutor is given an opportunity to oppose the
application for bail; and
(2) more importantly that unless "the Court is
satisfied that there are reasonable grounds for believing"
that the accused is not guilty of such an offence. Further,
the Court is also required to be satisfied that such a
person is not likely to commit any offence while on bail.
In other words, Section 37 departs from the long established
principle of presumption of innocence in favour of an accused
person until proved otherwise."
14. The prosecution case seems to be that after the three
accused persons named in the charge-sheet had collected
the contraband substances, Krishna Gopal Chettri and the
applicant were intercepted by the locals - Bir Bahadur
Tamang and Karma Pintso Bhutia, on suspicion that they
were carrying a bedding case. It is their case that when
they made inquiries, the applicant fled but Krishna Gopal
Chettri was apprehended. It is further alleged that when
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
search was conducted, contraband substances were
recovered from the bedding case in the possession of
Krishna Gopal Chettri.
15. This Court has gone through the statement of Krishna
Gopal Chettri, the co-accused, recorded under section 161
Cr.P.C. The statements recorded under Section 161 Cr.P.C.
of Bir Bahadur Tamang and Karma Pintso Bhutia, are also
on record. The statements of Abhijit Tamang has also been
perused. These statements on their own do no connect the
present applicant to the seizure. There is no identification
of the applicant by any of the witnesses, as the person who
had fled away when Krishna Gopal Chettri was
apprehended. Krishna Gopal Chettri, being a co-accused,
his statement can be used only to lend assurance to other
evidence against the applicant. However, such material
seems lacking. While Krishna Gopal Chettri is on a default
bail, the other co-accused - Deepen Chettri, who was
similarly placed, has been granted bail by this Court under
Section 439 of the Cr.P.C. on 19.01.2021.
16. At this juncture, it would be relevant to note that
Section 18 of SADA, 2006, inter alia, provides that no
person accused of an offence punishable under the Act
shall be released on bail or on his own bond unless the
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
court is satisfied that there are reasonable grounds of
believing that the applicant is not guilty of such offence and
that he is not likely to commit any offence while on bail. In
Ganesh (supra), this Court had examined the provision of
Section 18 of SADA 2006 and found it to be in pari materia
to Section 37 of the NDPS Act, 1985. This Court, following
the judgments of the Supreme Court in Narcotics Control
Bureau vs. Kishan Lal & Ors.5; Intelligence Officer, Narcotics C.
Bureau vs. Sambhu Sonkar & Anr.6; Narcotics Control Bureau
vs. Dilip Pralhad Namade7 and Collector of Customs, New Delhi
vs. Ahmadalieva Nodira8, held that the words "reasonable
grounds" in Section 18 of SADA 2006 would have the same
meaning as has been explained by the Supreme Court
while interpreting Section 37 of the NDPS Act, 1985. This
Court held that 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 to justify
recording of satisfaction that the accused is not guilty of
the offences charged. The judgment of the Supreme Court
relied upon by the learned APP also holds that for granting
bail, the court must, on the basis of the records produced
5 (1991) 1 SCC 705
6 (2001) 2 SCC 562
7 (2004) 3 SCC 619
8 (2004) SCC (Cri.) 834
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
before it, be satisfied that there are reasonable grounds for
believing that the accused is not guilty of the offences with
which he is charged and further that he is not likely to
commit any offence while on bail.
17. The evidence is yet to be led by the prosecution. From
a perusal of the probable evidence filed along with the
charge-sheet, at this juncture, it cannot be said with
certainty whether it was the appellant who had run away
when Krishna Gopal Chettri was apprehended. There is no
substantial material to connect the appellant to the alleged
crime. There is therefore, reasonable ground for believing,
at this stage, that the applicant is not guilty of the alleged
offences. The charge-sheet does not indicate the applicant's
involvement in any previous criminal case. The learned APP
has also not pointed out any circumstance from the records
of the case that he is likely to commit any offence while on
bail. The records reveal that the applicant is only 24 years
old and has been incarcerated for more than five months.
This Court is, thus, of the considered view that the
applicant is entitled to bail.
18. Accordingly, the applicant is granted bail on his
furnishing security to the satisfaction of the learned Special
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
Judge, SADA, 2006, East Sikkim, on the following
conditions:-
(i) The applicant shall not leave the
jurisdiction of the Sadar Police Station, Gangtok,
without the written permission of the
Investigating Officer.
(ii) He shall report to the Station House
Officer (SHO) of the Sadar Police Station,
Gangtok, every Monday at 10.30 a.m. If the date
fixed by the learned Special Judge for the trial of
the case falls on a Monday, he shall report on
the next working day, at the same time, on
which day he is not required for the trial.
(iii) He shall stay away from the
prosecution witnesses during the period of trial
and not attempt to influence them or even
contact them, directly or indirectly.
(iv) He shall appear before the learned
Special Judge, on every date fixed for trial.
(v) He shall give his cell phone number to
the Investigating Officer and shall not change it
Bail Application No. 07 of 2021
Sagar Pradhan v. State of Sikkim
without the permission of the learned Special
Judge.
(vi) Once the trial begins, he shall not in
any manner delay the trial.
(vii) If he violates any of the terms, the
Investigating Officer shall be entitled to apply to
the Special Judge for cancellation of the bail.
19. The application for bail is allowed and accordingly
disposed of.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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