1 568.277 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 568 OF 2010 in CRIMINAL APPEAL NO. 277 OF 2010 Jayabalan Freddie Ratnaswamy . Applicant/Accd no.2 vs Union of India .. Respondents Mr.Lalla and Mr.Shankar Dhoble i.b Lalla & Lalla for Applicant Ms.Revati Mohite Dere and Mr.Mandar Goswami for Respondent no.1 Ms.M.R.Tidke APP for Respondent no.2 CORAM: N.D.DESHPANDE, J DATED: 20th January, 2011 & 24th January, 2011 P.C. 1. Heard Mr.Lalla learned counsel for the applicant/accused no.2. 2. The applicant-accused, who is convicted and sentenced to ten years R.I. Under section 8-C, 21 and 29 of the N.D.P.S.Act, from the date of his arrest i.e.17.1.2006, he is in jail. His appeal has been admitted. It appears that the application is 2 568.277 pending since April, 2010 and he complained that there is no say filed by the respondent-prosecution and they are taking time on one pretext or other. Since the accused is convicted, detail hearing is required for consideration of his bail application. Mr.Lalla learned counsel for the applicant on merits, stated that there is no recovery of contraband from him, even as per prosecution case and on the charge of conspiracy there is no evidence. He undertakes that the accused/applicant would be bound by all terms and conditions. As such hearing of the bail application requires immediate attention for its disposal. Kept back at 3.00 p.m. 3. Resumed on 24th January, 2011. Mr. Mandar Goswami has field his appearance in the matter on behalf of the respondents. He stated that it is mandatory for deciding the bail application, to hear the prosecution. Accordingly, both parties were heard at length. 4. The respondents recorded their strong objection and opposed the application for bail pending hearing and relied on the following decisions: 5. The decisions of the Apex court and also decision passed by this Court in various matters 3 568.277 wherein accused had applied for bail pending appeal and having suffered sentence even to the extent it was more than 50 %. 6. After hearing the submissions of both sides, and upon consideration of the record, following point required to be considered that whether the appellant- original accused no.2 has made out his case for release on bail pending his appeal against conviction in the light of section 37 (b) of the NDPS Act. 7. Admittedly, for under trial and when conviction and sentence in force, the applicant's bail application under the NDPS Act shall be decided under section 37. This is a special enactment to achieve the objects of the said Act. Section 37 of NDPS Act reads as under : S. 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 for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (1)the Public Prosecutor has been given an opportunity to oppose the application for such release and 4 568.277 (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. (1) 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. 8. No doubt, it is stringent against the accused who is an under trial or a convict before the Appellate court awaiting for decision of an Appeal. Section 37 (2) also make it clear that limitations under Code of Criminal Procedure, 1973 or any other law for the time being in force shall also have a bearing besides the merits of the bail application made under section 37 of the N.D.P.S Act. For an appeal against conviction or acquittal, a procedural right is given in Code of Criminal Procedure. For an application under section 37, offences are broadly classified under two heads : Offences punishable for five years and more than five years and where punishment is less than five years. 9. The learned counsel for the appellant raised three points to substantiate present bail application: (a) The applicant (accused no.2) as on today has suffered five years sentence which is 50 % of the total sentence passed. (b) His appeal is unlikely to reach final hearing 5 568.277 in near future; considering present pendency in High Court and (c) on merits there is no evidence of seizure and no contraband is recovered from him. There is no substantive evidence and conviction is merely based on his so called confessional statement recorded under section 67 of the Act, when he was examined by an Empowered officer and arrested thereafter. According to the him, said information or the statement recorded under section 67 of the Act has been retracted by him within two weeks being not voluntary disclosure therefore cannot be relied upon. It was given in writing before the Special Judge under N.D.P.S. Act and as such there is no evidence. It was also urged that there is no independent corroboration to the said confession recorded under section 67 of the Act. He submitted that no conviction can sustain in law on such retracted solitary statement. Accused no.2 is an Indian national and is permanent resident of Chennai city having settled business. He is running a licensed liquor shop at Chennai although there are no such averments found in the bail application. Learned counsel for the applicant placed reliance on following decisions: (2006) 1 SUPREME COURT CASES (Cri) 279 (Mansing vs Union of India) and also other decisions of this Court for releasing the accused on bail. Those are judgments delivered in (i) CRIMINAL APPEAL NO.733 OF 2008 in CRIMINAL APPEAL NO. 520 OF 2008 dated 3.2.2009 decided 6 568.277 by Division Bench of this court (Bilal Nazki and A.V.Mohta, JJ), (ii) Order dated 22.7.2009 passed by Single Judge of this court in CRIMINAL APPLICATION NO. 1259 OF 2008 in CRIMINAL APPEAL NO.552 of 2008 by Smt Mridula Bhatkar, J (OUSMANE DIALLO VS UNION OF INDIA ) (iii) order dated 9.3.2010 passed in CRIMINAL BAIL APPLICATION NO. 854 OF 2009 in CRIMINAL APPEAL NO.1253 of 2008 and (iv) Order dated 4.4.2008 passed in CRIMINAL APPLICATION NO. 16 OF 2009 in CRIMINAL APPEAL NO.19 OF 2008. Perused these judgments which are mostly relied on decisions of the Apex Court reported in MANSING VS UNION OF INDIA supra. 10. Indisputedly, applicant is a convict under section 8 (c) r/w 29 r/w 21 (c) of N.D.P.S.Act and 8 (c) r/w 23 (c) r/w 28 of N.D.P.S.Act and is sentenced to suffer R.I.for 10 years and to pay fine of Rs.1,00,000/- in default to undergo further R.I. for six months. He has been jointly charged and tried along with accused no.1 who is also held guilty. Accused no.1 was found with 3.5 kgs of heroin concealed in his traveling baggage. It was seized at the airport when he was about to board his schedule flight on 17th January,2006 in the early morning by NCB Officers at Mumbai pursuant to an intelligence report of NCBN Chennai passed on 16th January, 2006 a day before. Both persons were jointly charged,tried and convicted. 11. There is no specific charge of criminal conspiracy 7 568.277 for transporting narcotic drug and the charge is co- extensive, on the basis of seizure panchanama. The present applicant (accused no.2) was accosted at the airport when the seizure panchanama was in progress as per the sources based on intelligence. 12. The main point that was urged at the time of hearing by both sides, is the applicability of section 37 of the N.D.P.S.Act which is the sole section applicable for deciding the present bail application which is not seriously disputed. The said section is mandatory and requires its elaborate discussion for its applicability to a given case. Such a need was found and even also upheld by the some of the decisions of this court while deciding similar bail application of a convict and whose appeals are pending. 13.Learned counsel for the respondents placed reliance on various orders passed by single Judge of this court in CRIMINAL APPLICATION NO.1 OF 2010 in CRIMINAL APPEAL NO.394 OF 2007 decided on 23.3.2010 (Pritam Namdeo vs Union of India) so also order dated 21.1.2010 passed in CRIMINAL APPLICATION NO.433 OF 2009 in CRIMINAL APPEAL NO. 618 OF 2008 of this court which are recent judgments and also judgment dated 23.1.2009 by the apex court in (2009) 2 Supreme Court cases 624 (UNION OF INDIA VS. RATTAN MALLIK ALIAS HABUL). Above two authorities referred earlier are reported in (2007) 3 Supreme Court cases (Cri) 505 (Union of India vs Shiv Shanker Kesari). 8 568.277 14. Thus, from the above cited authorities, it is found that there is no escape from the applicability of section 37 (1)(b) (ii) of the N.D.P.S.Act It is provided that no person shall be granted bail unless these two conditions are satisfied. (1) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty and (2) 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. The expression used in section 37 (1) (b) (ii) is reasonable grounds . The expression means something more than prima facie grounds. It connotes substantial probable cause for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. The above clauses are quoted from the judgment in Union of India vs Shiv shanker Kesai supra. 15. After going through the above quoted authorities and various decisions after the judgment dated 14.9.2007 Union of India vs Shivshankar Kesri it is 9 568.277 seen that the custody period undergone as an under trial after the accused is held guilty by the trial court has not been taken as a ground by the accused to claim bail pending his appeal. The grounds for satisfaction are grounds mentioned in section 37 (1) (b) and in no other section. So bail application will have be viewed as if the accused is not convicted and is an under trial and stands charged for the commission of an offence which is non-bailable and cognizable under the N.D.P.S.Act. So without touching the merits of his conviction which would be done at the time of final hearing of the appeal when entire evidence could be re-appreciated and that scrutiny cannot be done at this stage and this Court will have to evaluate the case of the accused so also the complainant- prosecution has to see whether there are reasonable grounds for believing that he is not guilty firstly and then he is not likely to commit any offence. 16. Deciding the bail application will not certainly prejudice either of the parties, as at this stage, the Court has to satisfy only that point whether there are reasonable grounds to hold the accused not guilty. This is the main test and other grounds that he is likely to commit an offence in future or while on bail cannot be anticipated by any standard. Only his presence can be secured by putting some stringent conditions. 17. On this first ground, the Court has to find out whether such reasonable grounds exist in favour of the accused about his innocence. The prosecution case 10 568.277 begins with intelligence and information which came to Mumbai where it was investigated. There was recovery of contraband. This recovery was effected from the accused no.1 while he was associated with accused no.2 and therefore accused no.2 was arrested, charged and tried. The accused no.1 was tried jointly with accused no.2. For such prosecution not because, the trial court framed the charges and found the accused guilty would certainly not deny him to appreciate on the point of reasonable grounds by this Court for deciding a bail application. No direct seizure would have favoured the accused but certain facts make it clear that during this period, till the accused no.1 was seized with the drugs at the airport the present applicant-accused was found associated. There is documentary evidence relied upon and produced by the prosecution that they were traveling together from Chennai city to Mumbai, stayed together and found together. These are believable grounds for his complicity in drug trafficking and transporting them abroad. This has come on record not only from the statement recorded under section 67 of the Act but, in the form of certain documents and from the direct evidence of the Empowered officer and his team. Thus, it is indirect evidence of the part of accused no.2, the present applicant that he handed over the contraband bag containing the drugs trafficking which is a big chain. Thus, at the material time, accused no.2 is found associated with and is liable for prosecution giving him/them an opportunity to prove their innocence at every walk of the trial. So the prosecution was based on certain grounds which prompted to take action for collection of 11 568.277 necessary evidence in the form of documents and additional information empowered as required under section 67 of the N.D.P.S.Act. No doubt, the first conviction order in an appeal requires re-appreciation of the evidence. Hence, no case is made out by the present applicant for his bail pending his appeal. The above observations are required to be made in view of the directions of the Apex court in above decisions quoted supra and it is based on best test of section 37 (b) and accordingly, these observations are made. No doubt, every day custody is prejudicial to the applicant and he shall also have liberty that his case will have to be heard and decided on the touchstone of section 37 of the N.D.P.S.Act and no other considerations for bail and shall have a right to get his Appeal heard at the earliest. With the above observations, Criminal Application is disposed of. N. D. Deshpande, J