CaseNo..a.ei.I..app.I.....}J.Q..O.9.„Q£..2.QO9. ._` ._ -- _--_ }L ---- _-- `¢> `JE±S -.9`-£ -SerialT16:` Order (s) with Signature (s) 3 02. 1.12.09 BEFORE HON'BLE MR. JVSTICE S. P. WANGDI, JUDGE Present : Mr, Vivek Anand Basnett, Advocate for t:he Petitioner. Mr.:I Karma Thinlay, Additional Public Prosecutor with Mr. Santpsh Kr. Chettri, Assistant Govt:. Advocate for the State. - Respondent. 11 ***** The petitioner has preferred this application for bail under section 439 of the Code of Criminal Procedure, 1973. |He was arrested on 14.11.2009 in connection with Ranipool Police St:ation. Case No.45 of 11 2009 under section 9 of the Sikkim Anti Drugs Act, 2006 and has approached this Court since hi.s application for bail filed before the Special Judge, Sikkim Anti Drugs Act, was rejected. Mr. Vivek Basnett, Learned Advocate 11 appearing on behalf of the accused person submitted that the petitioner is an innocent person and the only 11 basis upon which he was arrested was the FIR. Apart from this, it wast submitted by him that the charge against t:he accused person cannot be sustained on account of t:he 'defective seizure of the controlled subst:ance. The' search and seizure conducted by the I 11 Police was i-n viplation of section 24 of t:he Sikkim Anti L- Drugs Act, 2006. He further, submitted that the 11 detention of the accused person could not be justified also on account, of the fact that the co-accused in the SGPG- 3/ mgh coiirv 5ooo Nos/ 2.4.2oog CaseNo..B.ail..A.pp.I.No..09...of..20.Q9. t` EERE - L¥ =fa Serial No. Older (s) with Signature (s) case was released on bail soon after his arrest. The last leg of his submission was that t:he accused ought to be I released on bail,as he is a patient of acute gastritis and also suffers from a` serious leg in]-ury. Mr. Basnett placed reliance on a Single Bench decision of the Orissa High Court reported in 1995 Criminal,Law Journal 3083 in the matter of Radha I(rishana: Singhari and Ors. Vs. State of Orissa in which that:- tit was held in paragraph 4 thereof I "When \the law prescribes stringent procedure for compliance in case of such serious nature of offence, it is always obligatoiv `'on the part of the investigating agency tb Strictly comply with the mandatory provisions `so as to enable itself to prove the prosecutioh case to the hilt". Supplementitng this argument the Learned Advocate referred} to section 24 (2) of the Sikkim Ant:i Drugs Act, 2006 `wtlich prescribes inter-alia as follows:- ``(2)When ?n officer duly authorized under SeEtion 19 `has reason to -believe that it is not possible to take the person to be searched to or Magistrate ::tahr°cuhtedt,,:'eb±%jsnsgjbj#h°fp:5seespsejrosnofnof°abney controlled substance or article or document, he mayr irlstead of_ taki_p_g such per_Eon_tp tpe npuern%eeersetdsiic££ne¥|?5dhoto3#ct%rscooo:deago:pgc:io,fv#ne%, the near\es| gazetted officer Procedure,,1973." SGPG- 3/ High Courv 5000 Nos./ 2.4.2009 I, -fr s& CaseNo...E9.±l.„AEpl...N.o.....Q9„.of..2009. Serial No. lpfder (s) with Signature (s) 13 Relying iipon the above provision, it was Submitted by hiT that the search was conducted in the absence of a gi;zFtted officer when a large number of officers were av'ailable in the locality where the I petitioner had I been searched. It was therefore, I submitted that thF police having failed to comply with t:he mandatory, |'requirement of law, the entire investigation world be a nullity and the petitioner was entitled to beingjenlarged on bail for t:hat reason. Mr. Ka[rma Thinlay, Learned Additional Public Prosecutor, on th,e other hand, submits that since a large quantity of Spasmoproxyvon i.e., 288 (two hundred and eigr`ty eight) capsules, were found in I possession of the |iaccused person and was seized from his body in pres'ence of witnesses, there was clear 11 prima-facie case of his having commit:ted t:he offence. He furt:her submitted that while considering an application for baiLl in matters pertaining to the present kind, it would be necessary to consider the permissible 11 limits within which t:he Court can exercise its discretion ( and that the case being under the Sikkim Anti Drugs Act, 2006 the pi,rameters provided under section 18 thereof have to b!| considered mandatorily by the Court. SGPG- 3/ High Courv 5000 Nos/ 2.4.2o09 CaseNo.....a.e.i.i.Aft?i......eJ.a,„.Q9...Q£..2009 t, E=TJEE Serial No. Order (s) with Signature (s) Mr. Karma Thinlay, placed reliance upon t:he Judgement reported in (2007) 7 SCC 798 in the matter of Union. of India Vrs. Shiv Shanl(er I(esari, more particularly paragraphs 3 and 6, and submitted that bail can only be granted on fulfHment of two conditions i.e. (i) where there are reasonab.Ie grounds for believing that the accused is not guilty of t:he offence and (ii) t:hat he is not likely to commit any offence while On bail. 5. It was further submitted that if eit:her of these two conditions was not satisfied, the bar in granting bail operates and the accused cannot be released on bail. He also placed reliance upon (2004) 3 SCC 619 in the matt:er of Narcotics Control Bureau Vrs. Dilip Pralh.ad Namade and submitted that the nature of the embargo created under the law was keeping in view the deleterious nat:ure of t:he offence, necessities of public interest and the normal tendencies of the persons inv'olved in such network to pursue with their activities with greater vigour and make hay when at large. 6. I have hea'rd the rival contentions placed on I behalf of t:he parties and in my corisidered view this is not a case where this Court is satisfied that t:here are SGFIG. 3/ High Courv 5000 Nos./ 2.4.2009 CaseNo..Bail...AFHl....No.,„..0.9...c}f..2009. Serial No. Order (s) with Signature (s) reasonable grouh'ds for believing that t:he accused is not guilty of the offence and that he is not likely to commit any offence while on bail. As pointed out by the Learned Addit:ional Public Prosecutor, the Seizure of the cont:rolled substance i.e., the Spasmoproxyvon capsules, was made from the body of the petitioner/accused person which is evident from the seizure memo filed as annexure A-2 to the bail application, and lthat evidently such seizure took place in the presence,,of witnesses. The defect of the seizure as placed by Mi,. Basnett, Learned Advocate, on behalf of the petitioner, does not appear t:o exist prima-facie when we consider the provisions of sub-section (2) of sect:ion 24 of the Sikkim Anti Drugs Act, 2006. This provision clearly stipulates that when an officer duly authorised under sect:ion 19 of Sikkim Anti Drugs Act has reason to b!Iieve that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting wit:h possession of any controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search t:he person as provided under Section loo of the Code of Criminal Procedure, 1973. At this stage it would not be proper for this Court SGPG- 3/ High court/ 5ooo Nos/ 2.4.2oog Serial No. CaseNo..P.?.il..gFpl...„.N9.I..Q.9...Qf...2.P.09. Order (s) with Signature (s) to go into .the controversy as to whether or not the person t:o be searched could be taken to the nearest I gazetted officer ori Magistrate. Prima-facie there exist evidence of seizure and the permissibility of such seizure under the law. This contention therefore, cannot be accepted at this stage and is rejected accordingly. The Learned Additional Public Prosecutor further Submitted that the investigation of the case has since been completed and charge sheet has been filed in.the Court of Special I I Judge, Sikkim Anti Drugs Act, 2006. In my view this also is another evidence by which a prima-facie case does exist against the accused person for having committed t:he offence. Section 18 of the Sikkim Ant:i Drugs Act, 2006 section 37 of th almost in-verbatim reproduction of NDPS Act. Under sub-clause (ii) of clause (b) of section 37 of the NDPS Act negation of bail is the rule and ts graht an exception. On reading section 18 'bf the present Act there do not appear to be I any diffe'rence bet:ween the two provisions. The records of the. case produced do not inspire confidence in this Court t:hat the accused person, at this stage, is not guilty of having cpmmitted the offence and t:hat he is SGPG- 3/ High Courv 5000 Nos./ 2.4.2009 CaseNo..a.ail..ADpl.No......Q9...o£..2aog. Serial No. Order (s) with Signature (s) not likely to commit the offence during the period when heison bail. I 8. . The menace of t:he abuse of the controlled I substance as defined under the Sikkim Ant:i Drugs Act:, 2006 has been of serious concern of the society and it i was with the object to address this that the Sikkim Anti Drugs Act, 2006 twas passed by the legislature. This may not be const:rued as a conclusive finding that the accused person is guilty of having committed the offence. That would for the Special Court to decide after Trial. However, at this stage, this Court is of the prima- facie view that it would be a t:ravesty of Justice to I enlarge the accused on bail. I also do not see any other reason as to why the application for bail should be allowed. ( As regards ,the complaint of illness is concerned, the prosecution is directed to provide the accused person with necessary medical treat:ment if not a.Iready being provided. 9. Therefore, in the facts arid circumstances, t:he application for bail stands rejected. It is made clear I that the observations made in this order is not be construed as find,ings on the merit of he`case. . SGPG- 3/ High Courv 5000 Nos./ 2.4.2009 iii==_ Case No Bail Appl .No. 09 of 2009. Serial No. Order (s) with Signature (s) 10. Before lparting, this court deems it essential to observe that the offence js punishable with imprisonment for six months, or with fine which may ext:end to Rs. 20,000/- (Rupees (twenty thousand) or with both. As the accused person has been in custody for almost a month, it would be in the interest of Justice that the trial of the case 11 is expedited so that it may be disposed of at least within a period of three mbnths if not earlier. The Special Court, Sikkim Ant:i Drugs||Act, East District, is direct:ed to ensure that this case and cases of similar nature, are t:aken up wit:h due priority i,o t:hat the period of trial do not ext:end beyond the period'of imprisonment, if t:he accused person is held guilty. That apart, expeditious and effective disposal of such cases would also fulfil the object of the Sikkim Anti Drugs Act, 2006 in curbing the abuse of controlled substance in the State and accelerate the reform process of the abusers of drugs. 11. A copy of ithis o`rder be transmitted to the Court of the Special Judge, Sikkim Anti Drugs Act, East District at Gangtok, for information and compliance. A copy be also sent t:o the Court of Special Judge, Sikkim Anti Drugs Act, SGPG- 3/ High coiirt/ 5ooo Nos/ 2.4.2oog