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VINOD @ PAL SAHAB versus STATE OF U.P.

High Court of Judicature at Allahabad

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Vinod @ Pal Sahab v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 11372 of 2007 [2007] RD-AH 10396 (4 June 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 45

Criminal Misc. Bail Application No. 11372 of 2007

Vinod alias Pal Sahab

Versus

State of U.P.

Hon'ble V.K. Shukla, J.

Brief background of the case is that from the possession of the applicant 400 gm. of Charas has been recovered and applicant has been charged sheeted under Section 18/20 N.D.P.S. Act, P.S.  Ayana District Auraiya.

Sri Ranvir Singh, learned counsel for the applicant contended with vehemence that in the present case applicant is victim of false implication and further Section 50 N.D.P.S. Act has not at all been complied with and the quantity of Charas, which has been recovered from the possession of the applicant is less than commercial quantity.

From the side of State-Respondent, it has been contended that provision of Section 50 of N.D.P.S. have been fully complied with  and huge quantity of Charas has been recovered from the possession of the applicant, as such no interference is required.

After respective arguments have been advanced, undisputed factual position which has emerged  in the present case is that Section 50 of  N.D.P.S. Act has been complied with, as is evident from the F.I.R., as specific query was put to the applicant as to whether he intend to get himself examined before the Gazetted Officer. On this question being put, applicant has refused and asked the concerned Station Officer to proceed  to search. Thus Section 50 of N.D.P.S. Act has been prima facie complied with, and contrary view is not feasible at this stage.

In notification  S.O. 1055 (E) dated 19.10.2001, in exercise of the powers conferred by clauses (viia) and xxiiia) of section 2 of the Narcotic Drugs and  Psychotropic Substances Act, 1985 (61 of 1985) and in suppersession of Ministry of Finance Department of Revenue Notification S.O. 527 (E) dated 16th July, 1996, except as respects things done or omitted to be done before such suppersession, the Central Government hereby specified the quantity mentioned in columns 5 and 6  of the Table below, in relation to the narcotic drug or psychotropic substance mentioned in the corresponding entry in  columns 2 to 4 of the said Table, as the small quantity  and commercial quantity respective for the purposes of the said clause of that section.

Sl. No.

Name of Narcotic Drugs and Psychotropic Substance (International non-propriety name (Inn)

Other non propriety name

Chemical Name

Small Quantity (in gm.)

Commercial Quantity (in gm/kg.

                     23           Charas                                                                   100             1kg.

                       

          Under this  notification small quantity in respect of Charas, which is at item No. 23 of the table, is 100 gm. and commercial quantity is 1kg. Here from possession of the applicant  quantity, which has been recovered is 300 gm.  Section 20 (b) (ii) (B) of N.D.P.S. Act, 1985 provides that where quantity  involved is lesser than commercial quantity but greater than small quantity,  punishment with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees, may be imposed.

          Section 37 of N.P.D.S. Act, 1985 provides  offences to be  cognizable and non-bailable. Section 37 of N.D.P.S. Act, 1985 is being extracted below:-

37 Offences to be cognizable and non-bailable:-(1) Notwithstanding 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  a term of imprisonment of five years or more under this Act  shall be released  on bail or on his own bond unless;

(i)the Public Prosecutor has been given an opportunity to opposite 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 limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

Thus under this particular specific provision  where the  person accused of an offence punishable with the term of imprisonment   of five years or more, cannot be granted bail unless Public Prosecutor has been given an opportunity of  opposing the application for such release and the satisfaction has to be recorded that there are reasonable ground for believing that he is not guilty of such offence  and that he is not likely to commit any offence while on bail.  

            Hon'ble Apex Court in the case  of  Narcotics Control Bureau Vs. Dilip Pralhad Namade reported in AIR 2004 SC 2950 has already taken into consideration that unless and unless pre requisite terms  and condition of Section 37 are not  fully complied with , limitations which are statutorily  imposed  for  bail  has to be complied with. Relevant para nos. 9,10, and11 are being extracted below:-

9. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused-respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction  that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.

10. A bare reading of the impugned judgement shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.

11.The circumstances under which the bail can be granted in the background of Section 37 have been indicated above. The case is not one to which the exceptions provided in Section 37 can be applied.

In the present case also, at this stage it cannot be said that, in the event of offence being proved sentence of five years or more will not be awarded, and as already discussed above, the Charas, which has been recovered from the possession of applicant is 400 gm. and nothing has been brought on record to believe that applicant prima facie is not guilty of such offence and he is not likely to commit same offence after being  release on bail. No case for bail is made out.

Bail application is rejected.  However, as applicant is in jail and speedy trial is integral part of  Article 21 of the Constitution of India, as such in case charge sheet in question has been filed before concerned court, then in that event endeavour shall be made to conclude the trial in accordance with law, preferably within period of one year.

Dt.4.6.2007

T.S.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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