Case: Union of India Vs. Prateek Shukla

Under the NDPS Act, the burden of proof lies on the accused and not the prosecution and the High Court has wrongly reversed the burden of proof; and (vi) Absolutely no valid reasons have been indicated in the judgment of the Single Judge for the grant of bail. 8. Pursuant to the notice that was issued by this Court on 16 December 2020, the respondent has been served. On 15 February 2021, the hearing of the proceedings was posted on 8 March 2021 on the request of the learned counsel appearing on behalf of the respondent, who had recently entered appearance, for filing a counter affidavit. A counter affidavit has been filed. 9. Learned counsel appearing on behalf of the respondent has adverted to the counter affidavit, which has been filed on behalf of the respondent. The contention of the respondent, as set out before this Court, by Mr Vishal Arun, learned counsel, is that: (i) The respondent had resigned as a Director of the Company on 4 May 2018 having joined the Company earlier in the month of January 2018; (ii) The quarterly returns in respect of acetic anhydride for the period January 2018 to March 2018 had been submitted to the concerned office of the NCB; (iii) After his resignation on 4 May 2018, the respondent has had no relationship with the Company and may not be held responsible for the non-filing of the quarterly returns; (iv) The documents which have been filed before the trial Court would indicate that the alleged purchase orders for the controlled substance as well as the delivery at the premises of the Company took place after the resignation of the respondent; (v) After the respondent had resigned from the position of a Director in the Company, intimation was furnished to the NCB on 22 May 2018; and (vi) The purchase orders are from the month of June 2018, by which date the respondent had no connection with the Company. 10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail: Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail. 11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows: 18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises. 12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. While evaluating the merits of the rival submissions in the context of the correctness of the order passed by the High Court granting bail, it would be necessary, at the outset, to note the reasons which weighed with the High Court in doing so. The High Court having recorded the submissions of the respondent and of the learned counsel for the NCB has indicated the following reasons for grant of bail:Having considered the submissions and having perused the material on record, without commenting on the merits of the matter, prima facie, it appears that the applicant may not be guilty of any offence and considering his clean past and being an educated person as submitted that, he has a degree in Bachelor of Technology (B.Tech.) may not commit any offence in future, I am of the view that the applicant has made out a case for bail.11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows:18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors. Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises.12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology may not commit any offence is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act.