Non-consideration of mandatory requirements vitiates the bail order: Rajasthan High Court

 on 07 02 2021 at 03:20:59 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPURS.B. Criminal Miscellaneous Bail Application No. 95 20211. Kayum S o Gani Mohammed Aged About 45 Years ByCaste Musalman R o Laduna Police Thana Seemamau Mandsor Madhya Pradesh.: Mr. B.R. Godara.Mr. R.N. Bishnoi.For Respondent(s): Mr. B.R. Bishnoi AGC.HON BLE MR. JUSTICE SANDEEP MEHTAOrder25 01 2021Reportable1.Two bail applications have been filed on behalf of theaccused Kayum. Shri R.N. Bishnoi Advocate who presented theBail Application No.94 2021 on behalf of the accused Kayum after[CRLMB 95 2021]submission of the bail application No.95 2021 by Shri B.R.Godara prays that he may be allowed to withdraw the same.Accordingly the Bail Application No.94 2021 is dismissed aswithdrawn.2.The bail application No.95 2021 has been filed on behalf ofthe petitioners Kayum and Jabbar Husain who are in custody inconnection with F.I.R. No.144 2019 registered at Police StationLohawat District Jodhpur for the offences under Sections 8 18 8 21 & 8 29 of the NDPS Act and Section 3 25 of the Arms Act.3.Brief facts relevant and essential for disposal of the case arenoted herein below:4.The SHO Police Station Lohawat received a sourceinformation regarding transportation of narcotics in a car onwhich a nakabandi was undertaken at the Jodhpur Phalodi Roadnear the Panchayat Samiti Lohawat. At about 06.45 pm. an AltoCar No.MP 09 WB 0640 came near the nakabandi and was flaggeddown. Four persons were present in the car namely Iqbal Kayum Toshib and Jabbar Husain. As the car was suspected to be carryingnarcotics its search was undertaken. On opening the hood of thecar just underneath the dashboard five plastic packets werefound concealed. The first packet was containing opium weighing1 Kg. The second packet was containing brown coloured powdersuspected to be heroin which weighed 700 gms. with thepackaging. The third packet contained a country made pistolwithout licence. The fourth packet contained 40 cartridges of 7.65mm. each and the fifth packet was containing 10 cartridges of 8mm. each. On the basis of the above recovery FIR No.144 2019[CRLMB 95 2021]came to be registered against the petitioners and two others forthe offences under Sections 8 18 & 21 of the NDPS Act andSection 3 25 of the Arms Act.5.The instant bail application has been filed on the ground thatthe Seizure OfficerSunil Tada admitted in his cross examination that each of the accused had an equal share in therecovered brown sugar and thus the net weight of the brownsugar attributable to each accused would be 175 gms. only whichis below commercial quantity. Learned counsel has further urgedthat the Seizure Officer breached the mandatory requirement ofSection 50 of the NDPS Act as the third option for search wasgiven to the accused. It was further submitted that as the searchand seizure was undertaken after sunset the investigating officerwas under an obligation to comply with the mandatoryrequirement of Sections 41 and 42 of the NDPS Act which werenot followed and thus the entire search and seizure proceedingsare vitiated. It was further contended that percentage of morphinehas not been mentioned in the FSL report while examining thesample of brown sugar and as such no conclusion can be drawnthat the recovered contraband smack heroin brown sugar fallswithin the meaning of manufactured drug as defined in Section2(xvi) of the NDPS Act. It was further contended that the bailapplications of similarly situated co accused Iqbal and Toshib havebeen accepted by Coordinate Bench of this Court and thus thepetitioners also deserve indulgence of bail under Section 439Cr.P.C. on parity. [CRLMB 95 2021]6.Learned Public Prosecutor on the other hand vehementlyand fervently opposed the submissions advanced by thepetitioners’ counsel. He pointed out that the recovery ofcontraband was effected from a vehicle in transit and thus provisions of Section 50 of the NDPS Act would have noapplication because it is not a case involving recovery ofcontraband during personal search of the accused. It was furthersubmitted that as the recovery was from a vehicle in transit provisions of Section 43 of the NDPS Act would operate and therewas no requirement for the Seizure Officer to comply with theprovisions of Section 50 of the NDPS Act or to record theinformation and to forward the same to the superior officer or toobtain a warrant or authorisation before conducting the search. Hefurther submitted that 700 gms. of heroin was recovered carefullyconcealed under the hood of the car which is a manufactured drugfor which punishment is provided under Section 21 of the NDPSAct. As diacetyl morphine was detected by the Forensic ScienceLaboratory after analysis of the drug in question there was norequirement to mention the percentage of morphine therein.Learned Public Prosecutor thus urged that the petitioners do notdeserve indulgence of bail.7.I have given my thoughtful consideration to the submissionsadvanced at bar and have gone through the material available onrecord.8.Firstly I would like to advert to the mandatory provision ofbail postulated under Section 37 of the NDPS Act which reads asbelow:[CRLMB 95 2021]“37.Offences to be cognizable and non bailable.every offence punishable under this Act shall becognizableno person accused of an offence punishable for2[offences under section 19 or section 24 or section27A and also for offences involving commercialquantity] shall be released on bail or on his own bondunless i) the Public Prosecutor has been given anopportunity to oppose the application for suchrelease and(ii) where the Public Prosecutor opposes theapplication the court is satisfied that there arereasonable grounds for believing that he is notguilty of such offence and that he is not likely tocommit any offence while on bail.(2) The limitations on granting of bail specified in clauseare in addition to the limitations under theCode of Criminal Procedure 1973or any otherlaw for the time being in force on granting of bail.Hon’ble the Supreme Court has on more than one occasions considered the aspect of bail under the NDPS Act whencommercial quantity of contraband is involved and it has beenheld that the scheme of Section 37 of the Act indicates that theexercise of power to grant bail is not only subject to thelimitations contained under Section 439 of the Code of CriminalProcedure but is also subject to the limitation placed by Section37 of the Act which commences with a non obstante clause. Theoperative part of the said Section is in the negative formproscribing the enlargement of bail to any person accused ofcommission of an offence under the Act unless the twin conditionsare satisfied. Before granting bail to an accused arrested in[CRLMB 95 2021]connection with recovery of commercial quantity of narcotic drugs the Court has to record the findings mandated by Section 37 ofthe NDPS Act which is a sine qua non for grant of bail. This aspectregarding compliance of mandatory requirement of the NDPS Actwas considered by Hon’ble the Supreme Court in the followingCases:(i) State of Kerala & Ors. vs. Rajesh & Ors. reported in AIR2020 SC 721Union of India vs. Ratan Malik reported inNarcotics Control Bureau vs. Kishan Lal & Ors. reported in AIR 1991 SC 558Union of India vs. Shiv Shanker Kesari reported in(2007)7 SCC 798 and(v) Intelligence Officer Narcotics C. Bueau vs. SambhuSonkar & Ors. Control reported in AIR 2001 SC 830.In all these cases Hon’ble the Supreme Court laid down thatconsidering the parameters under Section 37 of the NDPS Act andrecording a satisfaction in light thereof is mandatory before grantof bail to an accused arrested in connection with the commercialquantity of narcotic drugs or psychotropic substances. In all thesecases except the case of Kishan Lalthe bail granted tothe concerned accused by the High Court was cancelled onaccount of non consideration of the mandatory requirement ofSection 37 of the NDPS Act. It can thus be culled out thatrecording a satisfaction under Section 37 of the NDPS Act isimperative before granting bail to a person accused of the offenceunder the NDPS Act and failure to do so would violate the[CRLMB 95 2021]mandatory requirement of the statute and thereby vitiate the bailorder. 9.On going through the orders passed by the Coordinate Benchof this Court on the bail applications of the co accused Iqbal andToshib it is clear that satisfaction mandated by Section 37 of theNDPS Act has not been recorded before granting bail to theaccused.10.So far as the submission of the petitioners’ counsel that thepercentage of morphine is not mentioned in the Forensic ScienceLaboratory report is concerned suffice it to say that as therecovered contraband is heroin which is a manufactured drugwithin the meaning of Section 2(xi) of the Act only requirementfor the FSL would be to detect the presence of diacetyl morphinetherein as per serial No.56 of the table under the NDPS Act whichis indicated positively in the FSL report.11.The contention of the learned counsel representing thepetitioners that the admission made by the Seizure Officer incross examination would indicate that each accused was having ashare of 175 gms. of smack heroin and 250 gms. of opium fromthe total recovered contraband suffice it to say that all the fouraccused who are residents of Madhya Pradesh were travelling inthe same car. The contraband substances were recovered in bulkconcealed under the hood of the car and not from individualpossession of the accused. The admission which was elicited fromthe Seizure Officerwas in answer to the suggestion givenby the defence counsel that the accused in their interrogation[CRLMB 95 2021]notes disclosed that they had equal shares in the recoveredcontraband. Suffice it to say an interrogation note of the accusedas recorded by the police officer is hit by Section 25 of theEvidence Act and is not admissible in evidence for any purposewhatsoever. Section 35 of the NDPS Act lays the issue beyonddiscussion.12.The contention of the learned counsel for the petitioners thatthe seizure is vitiated on account of non compliance of Section 50of the NDPS Act suffice it to say that seizure was made from thevehicle while in transit and not during the personal search of anindividual and thus Section 50 of the Act would not be applicableand the search and seizure which was obviously made whileexercising powers under Section 43 of the NDPS Act cannot becalled in question.13.In wake of the discussion made herein above this Court is ofthe firm opinion that there are no reasons on the record of thecase which can persuade the Court to record the mandatoryfinding in terms of Section 37(b)(2) of the NDPS Act which readsas below:“37(b)(2) where the Public Prosecutor opposes theapplication the court is satisfied that there are reasonablegrounds for believing that he is not guilty of such offence andthat he is not likely to commit any offence while on bail.”14.As a consequence of the above discussion this Court is notinclined to extend indulgence of bail to the petitioners under[CRLMB 95 2021]Section 439 Cr.P.C. and hence the Bail Application No.95 2021stands dismissed as being devoid of merit.15. A copy of this order be placed in each file.(SANDEEP MEHTA) J14 Tikam 

Summary: Non-consideration of the mandatory requirement of Section 37 of the NDPS Act can debase the actual meaning of a bail order. Recording a satisfaction under the provision is imperative before granting bail to a person accused of the offence under the NDPS Act and failure to do so, would violate the mandatory requirement of the statute and thereby vitiate the bail order. This proclamation was upheld by the Rajasthan High Court presided by J. Sandeep Mehta in the case of Kayum &amp; anr. Vs. State of Rajasthan [S.B. Criminal Miscellaneous Bail Application No. 95/2021].  The SHO, Police Station Lohawat received a source information regarding transportation of narcotics in a car on which, a nakabandi was undertaken at the Jodhpur-Phalodi Road near the Panchayat Samiti, Lohawat. As the car was suspected to be carrying narcotics, its search was undertaken and five plastic packets were found concealed, containing opium weighing 1 Kg, 700g brown coloured powder suspected to be heroin and country-made pistol without licence with 40 cartridges of 7.65 mm. The instant bail application has been filed on the ground that the Seizure Officer admitted in his cross- examination that each of the accused had an equal share in the recovered brown sugar and thus, the net weight of the brown sugar attributable to each accused would be 175 g which is below commercial quantity. The bail application had been filed on behalf of the petitioners who are in custody in connection with F.I.R. No.144/2019, registered at Police Station Lohawat, District Jodhpur for the offences under Sections 8/18, 8/21 &amp; 8/29 of the NDPS Act and Section 3/25 of the Arms Act. It was further contended that the bail applications of similarly situated co-accused have been accepted by Coordinate Bench of this Court and thus, the petitioners also deserve indulgence of bail under Section 439 Cr.P.C. on parity. The honorable court held, “In wake of the discussion made herein above, this Court is of the firm opinion that there are no reasons on the record of the case which can persuade the Court to record the mandatory finding in terms of Section 37(b)(2) of the NDPS Act.” The court further contended, “On going through the orders passed by the Coordinate Bench of this Court on the bail applications of the co-accused Iqbal and Toshib, it is clear that satisfaction mandated by Section 37 of the NDPS Act has not been recorded before granting bail to the accused. As a consequence of the above discussion, this Court is not inclined to extend indulgence of bail to the petitioners under Section 439 Cr.P.C. and hence, the Bail Application No.95/2021 stands dismissed as being devoid of merit.”