2008 ALL MR (Cri) 1269
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.R. DONGAONKAR, J.

K. Laxminarayan S/O. K. Pulliah Vs. State Of Maharashtra

Criminal Application No. 211 of 2008

18th March, 2008

Petitioner Counsel: Mr. R. M. DAGA
Respondent Counsel: Mr. THAKARE

Narcotic Drugs and Psychotropic Substances Act (1985), S.37 - Bail under - 2522 Kg. of Ganja loaded in 67 gunny bags found in abandoned truck - Applicant for bail owner of the truck - According to him ganja was being carried without his permission - His address stated in R.C. Book of the truck found to the false - He was also unable to give the name of the driver - Crime was registered against him earlier also in a similar case - Held in the circumstances mere fact that applicant has undergone long period of (2 1/2 years) incarceration would not entitle him for being enlarged on bail. 2007 ALL SCR 753 - Rel. on. (Para 11)

Cases Cited:
Rajesh Ranjan Yadav @ Pappu Yadav Vs. C.B.I., 2007 ALL SCR 753 : 2007(1) SCC 70 [Para 6,11]
Union of India Vs. Shivshankar, 2007(7) SCC 798 [Para 8]


JUDGMENT

JUDGMENT :- Heard Shri. R. M. Daga, Advocate, for appellant and Shri. Thakare, A.P.P. for Respondent State.

2. This is an application for grant of bail under Section 439 of Code of Criminal Procedure read with Section 37 of the N.D.P.S. Act.

3. The application is being prosecuted for the offence punishable under Section 20(B) and 8(k) of the N.D.P.S. Act, r/w Section 120(B) of the I.P.C. in Crime No.3001/2006. The charge-sheet has been filed and the case is pending before the Special Judge (N.D.P.S.) Court, Nagpur, bearing Special Criminal Case No.70/2006.

4. The allegations against the present applicant/accused are that, on 1-1-2006 at about 4.30 p.m. the police, on information, found one truck bearing registration No.AP-12/T-5153. The information was that the said truck was carrying 'Ganja' to Jabalpur from Andhra Pradesh. The said truck was being followed by Zen Car bearing registration no.AP-5511. The police took search of the said truck as it was found near village Vardha in un-attended condition. It is alleged that during the search of the said truck, 2522 Kg of 'Ganja' loaded in 67 gunny bags worth Rs.75,66,000/- was found. After due investigation, the charge-sheet was filed against the present applicant and three others. It is alleged that the present applicant is the owner of the said truck and the said 'Ganja' was being carried with his consent and under his control. The charge-sheet was filed on 2-10-2006. The matter is still pending.

5. Learned counsel for the applicant has contended that though the charge-sheet is filed on 2-10-2006, no charge has been yet framed. According to him, two accused are released on bail by this Hon'ble Court and one accused is released by the trial Court. Therefore, on the strength of parity, he claimed that this applicant also needs to be released on bail. He has further submitted that the truck was found in abandoned condition on the road near Kanhan. The case against the present applicant is only that he is the owner of the said truck. He was arrested on 3-4-2006. According to him, the other persons may be responsible for the offence but not this applicant as the said contraband was being carried without his consent. He is, therefore, not liable for the offence. According to him, the driver was forced to leave the said truck on 31-12-2005 and therefore, neither the driver nor the owner of the said truck are liable for the said offence. Further, according to him, this applicant was arrested in one Crime No.5/2006 of Police Station Vishakhapattanam and he was released therein. Incidently the said offence is also under N.D.P.S. Act. The learned counsel has further contended that in the said offence this applicant has been released on bail and therefore, he cannot be held liable for rejection of bail in this case. Further, according to him, the applicant is in jail since about 2 1/2 years. Accused No.2 has been discharged and the other accused are attending the trial. Therefore, according to the learned counsel, on the ground of parity as well as on the ground that the present applicant is in jail since about 2 1/2 years and no charge is framed so far, and as it is not certain as to when trial would begin and end, the applicant would be entitled for bail. Further, according to him, the alleged contraband was being carried in the said truck, though the said truck was hired for carrying coconut. As such the applicant would be entitled for bail.

6. As against this, while seriously opposing the bail application learned A.P.P. Shri. Thakare, has contended that in view of the provisions of Section 37 of the N.D.P.S. Act regarding bail, as twin conditions are not satisfied, the applicant would not be entitled for bail. Further, according to him, in the investigation, the address of the applicant as stated in the R.C. Book of the truck was found to be false. According to him, the applicant did not disclose the name of the driver in the investigation nor even now he is ready to give the name of the driver of the said truck, who was plying the said truck, and therefore, the applicant would not be entitled for bail. It is also his submission that the contention of the applicant that the truck was found in abandoned condition, does not exonerate the applicant. Further, according to him, there is no parity of the present applicant with the other accused who are released on bail because the present applicant is the owner of the said truck and the said fact is not disputed. It is also contended by him that simply because the applicant is in Jail since about 2½ years, he would not be entitled for bail only on that ground, in view of the judgment of Apex Court reported in 2007(1) SCC 70 : [2007 ALL SCR 753], Rajesh Ranjan Yadav @ Pappu Yadav Vs. C.B.I. and another. Therefore, according to him, the applicant does not deserve bail, more so because he is found to have committed another offence under the N.D.P.S. Act as Vishakhapattanam, for which he is facing trial, though presently he is released on bail.

7. In order to appreciate the contentions of the learned counsel, it is necessary to bear in mind that the bail of accused of the offences under N.D.P.S. Act has to be considered in the backdrop of the relevant provision of Section 37 of the said Act. Section 37 of the N.D.P.S. Act reads thus.

"S.37. Offence to be cognizable and non-bailable.- (1) Not-withstanding 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 27-A 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 Limitation on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

It is obvious that limitations on granting bail specified in clause (b) of Section (2) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, of granting of bail.

8. As regards applicability of Section 37 to the matters of bail for the offence under N.D.P.S. Act, the observations of the Apex Court in 2007(7) SCC 798, Union of India Vs. Shivshankar are attracted. In para 5 & 6 of the said judgment, it has been observed thus.

"5. Section 37 of the Act reads as follows:

37. Offence to be cognizable and non-bailable.- (1) Not-withstanding 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 27-A 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 Limitation on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

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 is 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."

Further in Para 11 and 12 of the said judgment, following are the observations.

"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 purposes 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 its 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.

12. Additionally, the court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion."

Therefore, it is obvious that before granting bail to the accused who is being prosecuted for the offence under N.D.P.S. Act; these conditions need to be satisfied.

9. In the present case, the allegations against the applicant are that about 2522 Kg. of 'Ganja' loaded in 67 gunny bags was found in the said truck. The severity of the offence can be comprehended. The quantity of Ganja appears to be much more than commercial quantity perhaps attracting offence u/s.20(C) of N.D.P.S. Act. Therefore, when the applicant is admittedly owner of the said truck & when his name is registered as the owner of the said truck in R.C. Book, it is obligatory on his part to explain how the 'Ganja' in such a large quantity was being carried in his truck.

10. No doubt, he has tried to make out a case that the said 'Ganja' was being carried out without his permission, but the fact remains that as per prosecution his address as stated in the R.C. Book of the said truck was found to be false. He is also unable to give the name of the driver. He was arrested for the similar offence in Vishakhapattan area, in which he was found along with 50 bags of 'Ganja' with the other accused Banot Ravi, for which Crime No.5/2006 was registered against him. No doubt, the applicant seems to have been released (as contended) on bail in that case, but the part of the order of bail in that case reads thus.

"Order

......

3. In this case the accused are levelled with the offence under sec.20(b) read with 8(c) of NDPS Act on the allegation that they were in possession of 50 bags of ganja in gunny bags weighing about 800 kgs. After receiving information, while they were transporting the ganja, the complainant seized the said ganja bags in the presence of Excise officials and mediators and the accused were arrested on 8-3-2006.

4. The learned counsel for the petitioners has submitted that A.3 in this case was enlarged on bail. As such, there is no possibility of tampering with evidence if the petitioners are enlarged on bail because they are permanent resident of Khammam.

5. On the other hand, the learned Addl. Public Prosecutor has submitted that since accused no.3 was enlarged on bail and as the charge-sheet is laid into the court which is numbered as S.C. 36/06, there is no objection to release the petitioners on bail but subject to conditions. (Emphasis supplied)

6. As it appears from the charge-sheet A.1 and A.2 who are petitioners herein belongs to Khamman district. Therefore, if they are enlarged on bail without imposing any conditions, securing their presence will be difficult, as rightly submitted by the learned Addl. Public Prosecutor. Hence, while granting bail, some conditions may be imposed. Accordingly, the petitioners may be enlarged on bail subject to some conditions.

7. In the result, the petition is allowed and the petitioners/accused no.1 and 2 are ordered to be enlarged on bail on their executing a bond for a sum of Rs.10,000/- each (Rupees ten thousand each only) with two sureties for like sum each and that the sureties should belong to Visakhapatnam city, to the satisfaction of this Court."

The order clearly shows that he was released on bail because of the conceding by the prosecution and therefore, simply because he was released on bail in that case, he ipso-facto would not be entitled for bail in this case, more so because the provisions of Section 37 of the N.D.P.S. Act makes it obligatory on the part of the Court to be satisfied that the accused is not likely to commit any offence while on bail. Here, this is not such a case. On the contrary, when the applicant is alleged to be the owner of the truck, found with large quantity of 'Ganja' as mentioned above, it is difficult to say that he is not likely to commit any offence while on bail.

11. Turning to the other contention of the learned counsel that the accused/applicant is in jail since about 2 1/2 years therefore, he is entitled for bail as the trial is not likely to commence in near future. It is necessary to see the observations of the Apex Court in 2007(1) SCC 70 : [2007 ALL SCR 753], Rajesh Ranjan's case, in Para 10, wherein it has been observed thus.

"10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said that there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted."

While referring to the earlier decision, the Apex Court in Para 11 has observed thus.

"11. As observed by this Court in State of U.P. Vs. Amarmani Tripathi vide paras 18-19 : (SCC pp.31-32)

18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail* (see Prahlad Singh Bhati Vs. NCT, Delhi and Gurucharan Singh Vs. State Delhi Admn.). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar Vs. Rajesh Ranjan (SCC pp. 535-36, para 11)

11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are :

(a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the court in support of the charge.

19. This court also in specific terms held that : (SCC pp.536-37, para 14)

The condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail".

Further, in para 12, it has been observed thus.

"12. The above decisions have referred to the decision of this Court in the appellant's own case Kalyan Chandra Sarkar Vs. Rajesh Ranjan in which it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitled him to be enlarged on bail."

Therefore, merely because the applicant has undergone long period of incarceration, that fact by itself would not entitle him for being enlarged on bail, more particularly when he is unable to explain wrong mentioning of the address in R.C. Book of the truck and failed to give details of the driver who was driving the said truck at the relevant time and has been claimed to have been forced to leave the truck on 31-12-2006 and for non lodging of report for the same.

12. As regards parity, in respect of other accused, suffice it to say that this applicant is alleged to be the owner of the said truck in which the alleged contraband was being carried. The names of the other accused were traced only because of one chit found in the truck. They are facing trial. The accused who has been discharged by this Court, seems to be the accused against whom there was no sufficient material.

13. In the circumstances, it is not possible to say that there is sufficient ground for accepting the contention for release of the applicant on bail in pursuance to the provisions of Section 37 of the N.D.P.S. Act. It is not possible to say positively and even with some concession that he is not likely to commit any offence while on bail. In the present case, it is impossible to say that in view of the provisions of Section 37 of the N.D.P.S. Act, the applicant would be entitled for bail.

14. It cannot be forgotten that large quantity of 'Ganja' was found in the truck of the applicant. He is unable to explain as to how it could happen, even prima facie to exonerate him, as pointed out above. He did not point out name of his driver. No report is lodged regarding his leaving of truck due to force by somebody. Address of the applicant recorded in R.C. Book of the Truck is alleged to be false. He is facing prosecution for similar offence for possession of large quantity of Ganja. All these factors would negative his case for bail.

15. It is also clear that merely because he is in jail for about 2½ years, that fact by itself would not make him entitled for bail. Merely because the applicant has produced the receipt of hiring the truck for carrying coconut would also not be sufficient to hold that 'Ganja' was being carried out in the said truck in large quantity without his consent or connivance. It is needless to say that when the case is under N.D.P.S. Act, the court is bound by the provisions of Section 37 of the N.D.P.S. Act while considering the bail application. Further, case of other accused is distinguishable on facts. Hence, that order cannot be pressed into service for claiming bail in this application.

16. Accordingly, this application is liable to be rejected. It is rejected. The learned trial Judge is directed to dispose of the case against the applicant and others as expeditiously as possible in any case within a period of six months from today. Liberty to the applicant to move for bail, if necessary, in future, if the trial is not over within six months.

17. It is made clear that the above observations are in prima facie view of the matter and shall not influence the trial Judge in any way while deciding the matter on merits.

Application dismissed.