Begraj Singh ... Applicant (In ... vs State Of Uttarakhand
2021 Latest Caselaw 2472 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                   Original Jurisdiction

               1st Bail Application No.1952 of 2020
              Order on bail application of the accused

Begraj Singh                                           ... Applicant (in jail)
                                         Vs
State of Uttarakhand                                   ... Opp. Party


Mr. Ayush Negi, Advocate for the applicant.
Mr. V.K. Gemini, Deputy Advocate General for the State of Uttarakhand.


Hon'ble Sharad Kumar Sharma, J.

The applicant, herein, has sought his release on bail for his alleged involvement in Case Crime No. 135 of 2020, alleging the commission of the offences, under Section 8, 21 and 60 of the NDPS Act, to be read with Section 188, 269 and 270 of the IPC and Section 51 of the Disaster Management Act, 2005, which was registered against him at Police Station Shyampur, District Haridwar.

2. As per the prosecution case in the FIR, it was observed from the set of allegations, against the applicant, who is named in the FIR, that on the date of registration of the FIR, when he was apprehended with the other co-accused person Rahul Kumar, there were two two-wheelers, which were shown to be engaged in the commission of the offence, one was a Enfield 350 bullet, which was not having any number plate as such, on which, the co-accused Rahul Kumar was riding and he was found to be carrying a smack of about 602 grams, in two packets of 301 gram each.

3. While it is alleged in the FIR, the applicant was riding a Scooty (Purple colour), bearing registration No. UK08AB0254 and from his possession, 402 grams of

smack was recovered from the diggi of the Scooty. It is contended by the learned counsel for the applicant, that there is no direct nexus with the applicant, to be engaged in the alleged commission of the offence, because it is alleged that the co-accused person, Rahul, he had went to Morabadad and on 22nd May, 2020, he has met with one Nazim at Moradabad, who handed over him three packets to be carried to the co-accused Rahul after exchange of Rs.4,20,000/-, out of which, Rahul, has requested the applicant to carry one of the packets in his Scooty to be handed over to him, back in Haridwar.

4. It is during this process of carrying the aforesaid packet of the contraband as requested by co- accused Rahul Kumar, admittedly, he was apprehended by the Police and ultimately, on the search being carried, the recovery, which was made from the Scooty, was of 402 grams of smack.

5. As per the prosecution case, it was contended that the applicant is liable to be prosecuted for the aforesaid offences, under the NDPS Act, for the reason being that the total amount of contraband, which was recovered and found to be carried by him; was much beyond the prescribed commercial quantity, as it has been specified under the Schedule contained in the NDPS Act, where the commercial quantity of smack has been fixed to be 250 grams, hence, the implication of proviso to Section 37 of the NDPS Act, would come into play while considering the Bail Application.

6. This Bail Application has been argued earlier too, on a number of occasions, and lastly, when the

matter was argued, the counsel for the applicant has placed his argument, from the pretext, that under the given set of circumstances of the case, which has been pleaded, that since the applicant being a person of 56 years of age, and being an employee of an Insurance Company, it cannot be assumed or believed, that he would be involved in the commission of the said offence, apart from the above fact, the plea that the applicant is not carrying any criminal history, was a fact, which was not denied by the Government Advocate in the counter affidavit.

7. On the previous date, the learned counsel for the applicant has submitted that in fact, he cannot be directly attributed to be involved in the commission of the offence because whatsoever the transaction or exchange of money taken place at Moradabad, it was exclusively between the co-accused Nazim and Rahul, who has handed over the three packs to be carried by Rahul, who in turn, had requested the applicant to carry one of the packets in his Scooty, which had 402 grams of smack in it. He submits that his involvement in the commission of the offence cannot be said to be having a direct nexus, for the reason being is his defence is that he was a simply a carrier of the contraband, on the request of co- accused Rahul Kumar .

8. Secondly, the argument of the learned counsel for the applicant, is that since there was no independent witness of recovery, it cannot be said that he was involved in the commission of an offence, until and unless, his engagement in the commission of the offence,

is established beyond doubt, by producing the witness of recovery, which was made from the public place.

9. There are two different segments of arguments, which are to be appreciated by this Court, while considering the Bail Application.

10. The alleged incident is shown to be of 26th May, 2020, i.e. during the period when the lock down was declared and as per the directives of the Government of India, issued from time to time, due to pandemic situation, and that is why, while registering the FIR, as against the present applicant, the offences under Section 188, 289 and 270 of the IPC; to be read with Section 51 of the Disaster Management Act, was also alleged against the applicant, as his movement on the Scooty during the declared lock down period, itself was in violation of the directions issued by the Public Officer, restraining the movement on account of the declaration of the lock down by the Government of India, due to the prevalent chronic pandemic situation.

11. The argument, which has been extended by the learned counsel for the applicant that he was simply a carrier and there is no direct relationship which could be attached to him in commission of the offence, leads to a two logical conclusion, by this Court :-

i. the possession of contraband would be a fact, which stands admitted by the applicant.

ii. Whether, he was asked by Rahul to carry the said contraband, which was later on recovered from his possession, is a subject matter to be proved and established by the evidence on record

during the course of trail, and not at this stage while considering the bail application.

12. But, as far as the opinion of this Court is concerned, I am of the view that for the purposes of attracting the offence, under Sections 8, 21 and 60 of the NDPS Act, the possession of the contraband, which has been specified in the Schedule in the Act, is sufficient enough to level an allegation of involvement of the applicant in the commission of the offence under the NDPS Act. But, however, the perspective, from which, the argument has been extended by the learned counsel for the applicant, that he was simply a carrier hence should be released on bail, as there is no direct involvement, is not acceptable by this Court, for the reason being that this plea has been raised by the applicant for the first time in the present Bail Application, and in order to satisfy the query of the Court on the previous date, i.e. 05.07.2021, the Court has directed the applicant to place the Bail Application, which has been filed before the Trial Court to show that whether such plea was ever taken in the Bail Application or not, as it was a statement of fact available to be pleaded, when bail was filed before the Court below. The order dated 05.07.2021, is extracted hereunder :-

"Mr. Ayush Negi, Advocate, for the applicant. Mrs. Meena Bisht, Brief Holder, for the State. The applicant is an accused for commission of an offence under Sections 8, 21 and 60 of the NDPS Act, 1985. As per the FIR, which was registered against him as FIR No. 135 of 2020 dated 26.05.2020, the role assigned to the applicant is that

he was travelling in a Scooty bearing Registration Number UK 08 AB 0254, in which the Police Team, who had apprehended him and has recovered from him 402 grams of smack.

The argument extended by the learned counsel for the applicant was that Rahul, since being a relative, he had requested the applicant to carry the said article to Haridwar and to hand it over to him after reaching Haridwar, and hence the case of the applicant, was that he was not aware of the fact, as to the article which was directed to be carried by him was smack.

Whether this plea was taken by the applicant before the learned trial Court, while preferring the bail application, is not recorded in the finding which has been recorded while rejecting the bail application of the applicant. The applicant is directed to place the bail application on record whether he has developed this case before the learned trial Court, for the purposes of considering his bail application on this pretext, for which the learned counsel for the applicant prays for one week's time.

The same is granted.

Put up this bail application in next week."

13. In compliance thereto, the learned counsel for the applicant has placed the Bail Application which was filed before the Trial Court, on record by way of a supplementary affidavit, which has been filed him, on 10th July, 2021. However, the Bail Application No. 49 of 2020, which was filed before the Special Judge NDPS Haridwar, is taken into consideration, which was moved on 28.08.2020, in fact, no such specific plea had been

taken by the applicant before the learned Trial Court; that he was not involved in the commission of the offence, but rather was a carrier on behalf of other co- accused person i.e. Rahul. Hence, this plea of being a carrier is not acceptable by this Court at this stage, because the factum of being a carrier, was a plea which was already available to the applicant at the time when he had filed the Bail Application, initially, before the Trial Court itself and he cannot be permitted to take a liberty to qualify his defence for the purposes of seeking his bail; of his alleged involvement in the commission of the offence, complained of in the FIR dated 26.05.2020.

14. The another limb of argument of the learned counsel for the applicant that there was no independent witness of recovery, is yet again not acceptable by this Court, as it has been argued by the learned Deputy Advocate General, that since the lock down was already declared by the Government of India and since the applicant has been booked for the offences under Sections 188, 269 and 270 of the IPC also, it is quite obvious that on account of the declaration of the lock down, the independent public witness was not available and hence, that exclusive exception, cannot be a reason to give any solace to the argument which has been extended by the learned counsel for the applicant that the entire prosecution story is defective, in the absence of there being any independent witness, particularly when the source of contraband and its possession are the facts admitted by the applicant, and the recovery was beyond the commercial quantity.

15. Apart from it, non availability of an independent witness, as per the opinion of this Court, will have no bearing, when it runs contrary to the own argument which has been extended by the learned counsel for the applicant where his case is, that he was a carrier at the behest of the co-accused persons, i.e. Rahul Kumar.

16. Besides this, the learned Deputy Advocate General, has also argued from the perspective that since the co-accused persons and the applicant were apprehended simultaneously, at the same point of time, from the same place, their direct nexus of being engaged in the commission of the offence, which has emanated from Moradabad, in view of the story narrated by them, cannot be ruled out because the recovery itself was made at the same point of time, and applicant admits the fact to be the carrier of co-accused.

17. This Court, at present, is refraining itself to make any observation with regard to the impact of the said argument because that would be a subject matter of trial itself. But since the above arguments were extended by the Counsel for the applicant, Court was under an obligation to deal with every arguments, of the counsel for the applicant.

18. The third argument of the learned counsel for the applicant is that though he admits the fact that the recovery of 402 grams of smack was recovered from him, which is much beyond the commercial quantity, which has been specified to be 250 grams under the NDPS Act, he submits that the impact of the proviso to Section 37 of

the NDPS Act, has to be liberally construed in his favour on the pretext that:

i. the plea of criminal history was not established by the pleadings to the contrary which had been raised by the Government Advocate and since he is not carrying any criminal history and there is very bleak possibility of his future engagement in the commission of the offence, under the NDPS Act, hence, the said impact of Section 37 of the NDPS Act; should be read in his favour.

19. As far as the implication of Section 37 is concerned, the learned counsel for the applicant has made a reference to a judgment reported in (2007) 7 SCC 798, Union of India Vs. Shiv Shanker Kesri, where, if the principle foundation of the said case is taken into consideration, where the implication of Section 37, was taken into consideration by the Hon'ble Apex Court, this Court cannot be oblivions of the fact as it has been dealt with in para 2 of the said judgment, which was dealing with the facts of the said case, where a huge amount of poppy straw was recovered. The carrier of the poppy straw as per opinion of this Court, cannot be kept in parlance or be dealt with the common parameters and yardstick as that of recovery of smack as the carrier of the commercial quantity of smack, will and is bound to have a much wider social impact, as compared to that of poppy straw, which was the subject matter of consideration in the aforesaid judgment, where the implication of Section 37 was considered in para 3 and 4 of the said judgment, which are extracted hereunder :-

"3. According to learned counsel for the appellant the parameters of Section 37 of the Act

have not been kept in view while accepting the prayer for grant of bail. It was pointed out that huge quantity of poppy straw was recovered from the possession of the respondent from house No.K.63/121, Gola Deena Nath, Varanasi. It is submitted that the prayer for bail was rejected by the District Judge in terms of Section 37 of the Act after elaborately dealing with the background facts. Bail can only be granted on fulfillment of two conditions i.e. (i) where there are reasonable grounds for believing that the accused is not guilty of the offence and (ii) that he is not likely to commit any offence while on bail. Learned Single Judge while accepting the prayer for bail has not recorded any finding that there are reasonable grounds for believing that the accused was not guilty. Further, no finding has been recorded that he is not likely to commit any offence while on bail.

4. Learned counsel for the respondent on the other hand submitted that the prosecution has failed to establish exclusive possession and the applicant-respondent had no criminal history. Therefore, it was submitted that the order of the High Court does not suffer from any infirmity."

20. The learned counsel for the applicant has submitted that for the purposes of bringing an action of an accused under Section 37 of the NDPS Act, the Court will have to determine the implications of Section 37 (1)

(b) (2), where it uses the word, "reasonable grounds". The "reasonable grounds", itself cannot be exclusively extracted to be applied over here, under the facts of the present case, merely because of an argument extended by the counsel for the applicant, that he was not carrying any criminal history. The reason being that, the very source of germination of commission of the offence, is common in nature, and a common intention, though the money transaction might be a question of dispute which is an aspect to be decided by the Trial Court based on the evidence to be adduced by the parties, but the

apprehension of the applicant and the fact of collection of the contraband was a joint collection which was made at the same point of time and since the possession itself is a fact, which is not disputed, that itself would be a sufficient ground and a "reasonable ground" to attract the implications of Section 37 of the NDPS Act, when the contraband recovered is more than the commercial quantity, will not be attracted. Because the knowledge of transaction at Moradabad with drug peddler Nazim, because the exchange of money, because having knowledge of co-accused requesting the applicant, to carry the contraband, i.e. 402 gram smack in his Scooty, with an admitted known fact that it was to be handed over by the applicant to the co-accused Rahul, on reaching Haridwar, would, as per opinion of this Court will not bring the case of the applicant under percept of "reasonable grounds", which I am of the view goes against him, hence, the proviso to Section 37 of the NDPS Act, disentitles him to be released on bail.

21. For the reasons aforesaid, I am not inclined to release the applicant on bail. Hence, the Bail Application is rejected.

22. However, it is made clear that whatsoever observation, which has been made by this Court, while considering the present Bail Application, is exclusively tentative in nature for the purposes of considering the Bail Application only, and it may not affect the trial which has to be decided independently.

(Sharad Kumar Sharma, J.) 19.07.2021 Shiv