Case :- BAIL No. - 3647 of 2008
Petitioner :- Ajjan
Respondent :- Central Narcotics Bereau,Lucknow
Petitioner Counsel :- Avinash Srivastava,Lakshmana Singh
Respondent Counsel :- I.B. Singh
Hon'ble Shri Kant Tripathi,J.
1. Heard Mr. A.P. Mishra for the applicant and Mr. I.B. Singh, learned senior counsel for the Central Narcotics Bureau, Lucknow and perused the record.
2. The applicant Ajjan has filed this application for bail in the case crime no. 6 of 2007 under section 8/21 and 8/29 of the Narcotic Drugs & Psychotropic Substances Act (in short 'NDPS Act'), police station CBN Lucknow.
3. According to the complaint filed by the opposite party in the court concerned, a team of officials of the Central Narcotics Bureau, Lucknow headed by Mr. J.L. Meena, Superintendent, intercepted the co-accused Nasreen Bano on 5.10.2007 on the basis of the information given by an informer. Before affecting a formal arrest of co-accused Nasreen Bano, she was interrogated by Shobhit Bisht, Sub Inspector. She stated that she was in possession of 1.100 Kg. Heroin, which had been purchased from Ajjan (the applicant) through one Taha, who were involved in the business of selling narcotic substances. On the basis of this statement a search was made and co- accused Nasreen Bano was found in possession of 1.100 Kg. Heroin. It may not be out of context to mention that the statement of Nasreen Bano was recorded in writing before making the search. At that time two independent witnesses Sukai Ram and Lalla were also present, who were interrogated respectively on 17.12.2007 and 10.12.2007 by the investigating officer. During the course of investigation, the custody of co-accused Nasreen Bano was taken by the investigating officer on 17.12.2007 under the orders of the Court and her statement was recorded on 18.12.2007. In that statement too she supported her previous statement dated 5.10.2007. The present applicant Ajjan was interrogated on 13.5.2008 while he was allegedly in custody. He had also admitted the complaint allegations made against him.
4. Mr. A.P. Mishra, the learned counsel for the applicant submitted that no recovery has been made from the applicant Ajjan. He has been made accused only on the basis of Confessional statement of co-accused Nasreen Bano. The confessional statement of co-accused implicating the applicant has no relevance. The statement of the applicant was recorded on 13.5.2008 while he was in custody, therefore his statement has also no relevance. It was next submitted that there is nothing to indicate that the confessional statement of the co-accused as well as of the applicant were without threat, inducement and coercion. In other words, there is nothing to show that the applicant as well as co-accused Nasreen Bano made the confessional statements voluntarily without any pressure of the officials of Narcotics Bureau. It was also submitted that the Narcotics Bureau officials had powers of the police officers, therefore the confessional statements alleged to have been made before them are hit by sections 25 and 26 of the Evidence Act.
5. In support of his submissions, Mr. A.P. Mishra placed reliance on Union of India vs. Bal Mukund & others, 2009 (2) EFR 216. In that case the Apex Court has held in para 21, 26 and 30 as follows:
"21. ............If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest."
"26. .............If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken."
"30. .....a conviction, in our opinion, should not be based merely on the basis of a statement made under Section 67 of the Act without any independent corroboration particularly in view of the fact that such statements have been retracted."
6. The learned counsel for the applicant further placed reliance on Monish H. Bhalla VS. Satya Prakash Bahl @ S.P. Bahl @ S.P. and others, 2005 Crl. L.J. 1827. In that case the Bombay High Court after referring to various decisions of Privy Council and the Apex Court held, in para 6, as follows:-
"On a specific query by this Court, it was admitted that besides the statement of co- accused there is no other material against the respondent No.1 Satya Prakash Bahl. In such case, the question which arises for consideration is whether the confession of one of the accused implicating the other accused, can be treated as substantive evidence. The statements of co-accused have been recorded under section 67 of NDPS Act like one under section 15 of the TADA Act,which makes the statement of an accused admissible against the co-accused, conspirators or abettors. In such case, one would have to fall back on section 30 of the Evidence Act to see what use can be made of the statement of one accused against the co-accused. This aspect has been considered by the Honourable Supreme Court in a number of matters i.e. in the case of Bhuboni Sahu v. The King, AIR 1949 P.C. 257 : (1950 Cri LJ 872); Haricharan Kurmi v. State of Bihar, (1964 (2) Cri LJ 344) : AIR 1964 SC 1184; Kashmira Singh v. State of M.P., 1952 SCR 526 : AIR 1953 SC 159; (1952 Cri LJ 839). In Haricharan Kurmi (supra), the Supreme Court has observed in para No. 12 thus :
"It would be noticed that as a result of the provisions contained in section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That briefly stated, is the defect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh vs. State of Madhya Pradesh 1952 SCR 526 : (AIR 1952 SC 159) there the decision of the Privy Council in Bhuboni Sahu's case (76 Ind App 147) (AIR 1949 PC 257) has been cited with approval."
7. Mr. I.B. Singh, the learned senior counsel, on the other hand, submitted that the confessional statement made by co-accused Nasreen Bano which has been subsequently ratified by the applicant himself makes out a prima facie case against the applicant. The Narcotics Bureau officials had no doubt powers of police officers but in view of section 67 of the Narcotics Drugs and Psychotropic Substances Act (in short NDPS Act) the confessional statements before them are relevant and are not hit by section 25 and 26 of the Evidence Act. In support of this submission Mr. Singh relied on Kanhaiya Lal vs. Union of India, 2008 (61) ACC 7 (para 38) and Union of India vs. Munna and another, 2004 (2) EFR 517. It was also submitted that the bail matter of a case in which commercial quantity is involved has to be dealt with in accordance with section 37 of N.D.P.S. Act. It was next submitted that the evidence collected during the investigation reveals that the applicant is involved in the business of sale of Narcotic substances and has also a criminal history, therefore, his release on bail is not proper and in case he is released on bail, he will again indulge in such criminal activity.
8. Mr. Singh further placed reliance on the decision of the Apex Court in State of M.P. vs. Kajad, 2001 SCC (Cri) 1520, in which the Apex Court has held as follows:
"The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the court that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for."
9. The aforesaid principles have been reiterated by the Apex Court in N.R. Mon vs. Mohd. Naseemuddin (2008) 6 SCC 721 and Union of India vs. Abdulla (2004) 13 SCC 504 and few other decisions.
10. The trial is still pending and no prosecution evidence has been adduced, therefore, it is not proper to express any opinion regarding relevancy and credibility of the confessional statement of co-accused and the applicant. In case any opinion is expressed, it may prejudice the trial. In bail matters the courts are not required to evaluate the evidence and make documentation of the merits of the case. This is a matter for the trial court. While considering a bail matter, the court has to prima facie consider the evidence and arrive at conclusion whether or not any case for bail is made out.
11. As per the allegations in the complaint against the applicant, the quantity of the narcotic substance involved was of the commercial quantity, therefore, the stringent conditions provided in section 37(1)(b) of the NDPS Act will govern the bail application. In such type of cases only the provisions of the Code of Criminal Procedure can not be invoked. Section 37(1)(b) has imposed two conditions, fulfilment of which is necessary before grant of bail, firstly, the public prosecutor must be given an opportunity to oppose the application for bail and secondly, where the public prosecutor opposes the application for bail, the court must record its satisfaction before releasing the accused on bail that - (a) there are reasonable grounds for believing that the accused is not guilty of such offence, and (b) that he is not likely to commit any offence while on bail. Therefore, an accused who is involved in dealing with the narcotic substances involving commercial quantity is not entitled for bail in a routine manner. It may not be out of context to mention that the conditions provided in clause (b) of section 37(1) are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force in regard to grant of bail.
12. In Babua vs.State of Orissa, AIR 2001SC 1052, the Apex Court has held that at the stage of bail all that could be seen is whether the statements on behalf of the prosecution witnesses, if believable, would result in conviction. It has also been held that the liberty of a citizen has to be balanced with the interest of the society and it would be in the interest of the society to keep the persons involved in drugs and psychotropic, behind bars during the pendency of the case.
13. In the instant case, the applicant has a criminal history of several cases and according to the evidence collected during the investigation he is prima facie involved in dealing with the narcotic substances, and the Heroin recovered from the co-accused was allegedly sold by the applicant. At this stage, it can not be said that the applicant is not prima facie guilty of the aforesaid offences, if the evidence collected during the investigation is taken at its face value. The apprehension of Mr. I.B. Singh that in case the applicant is released on bail he will indulge in a similar criminal activity has, prima facie, substance.
14. Keeping in view the facts and circumstances of the case, gravity of the crime, complicity of the applicant and the nature of evidence, I do not consider it proper to release the applicant on bail.
15. The bail application is, therefore, rejected.
Order Date :- 13.8.2010
(Delivered by Hon'ble Ashwani Kumar Singh, J. under Chapter VII Rule 1(3) of the Rules of the Court.)