Arjun Sharma vs Union Of India

The Court proceedings have been conducted through remote video conferencing mode due to the prevailing situation in the State due to Covid-19

pandemic.

This application under Section 439, Code of Criminal Procedure, 1973 (CrPC) has been filed by the accused-petitioner, Sri Arjun Sharma seeking

bail in connection with NCB Crime No. 01/2021, registered under Section 8(c), Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS

Act’, for short) and punishable under Sections 22(c) and 29 of the said Act.

Heard Mr. D.J. Haloi, learned counsel for the accused-petitioner and Mr. S.C. Keyal, learned Standing Counsel representing respondent Narcotics

Control Bureau (NCB).

Learned counsel for the accused-petitioner has submitted that the case has been registered after recovery of a total quantity of 7.660 Kgs of

contraband substances but nothing has been recovered from the possession of the accused-petitioner. Two different quantities of contraband

substances were recovered and seized from the possession of two other accused persons viz. Md. Salam and Sri K. Basanta Singh. Even when

search operation was carried out in the house of the accused-petitioner nothing was recovered. The accused-petitioner has been arrested merely on

suspicion and has to remain in custody without there being any material basis, he submits. After his arrest, the accused-petitioner was remanded to

custody on 03.01.2021 and since then, he has remained in custody. Mr. Haloi has, thus, submitted that the accused-petitioner may be released on bail

subject to any terms and conditions.

Learned Standing Counsel appearing for the respondent NCB has submitted that a total quantity of 7.660 Kgs of contraband substances were

recovered during the investigation and the materials collected during the course of investigation clearly and specifically establish the involvement of the

accused-petitioner in the transaction. It has been submitted that the result of chemical examination has given positive result for Methamphetamine and

evidently, the quantity of contraband substance seized is commercial quantity. It is also submitted by Mr. Keyal that the accused-petitioner in his

statement, purportedly recorded under Section 67 of the NDPS Act, had admitted about his involvement in the transaction. In support of his

submissions, learned Standing Counsel, NCB has relied on the contents of the written objection submitted on behalf of the respondent NCB apart from

relying in the decisions referred therein.

I have duly considered the submissions of the learned counsel for the parties and perused the materials placed before this Court. I have also gone

through the decisions on which the learned Standing Counsel, NCB has placed reliance to buttress his submissions.

The case of the prosecution, as could be gathered from the documents and materials placed before this Court, is as follows :-

7.1. At about 09-55 hours on 02.01.2021, Intelligence Officer, NCB, Guwahati received an information from a reliable source that one person, Md.

Salam was coming to a restaurant named Naga Kitchen, 3rd Floor, opposite Pantaloon Mall located at G.S. Road, Guwahati to deliver a huge quantity

of Methamphetamine tablets to another person named Sri Arjun Sharma i.e. the accused-petitioner. The source further informed that Md. Salam

would be coming to the said restaurant along with his accomplice named Sri K. Basanta Singh. The information further revealed that those persons

had kept more Methamphetamine tablets at their places of residence.

7.2. The said information was reduced into writing and submitted before the Superintendent, NCB, Guwahati at 10-00 hours on 02.01.2020 and the

matter was also informed to the Zonal Director, NCB. On being directed, a team was constituted with one of them as Investigating Officer (I.O.)

authorized to search, seize and arrest. It is stated that at around 12-00 hours, the team so constituted, proceeded to Naga Kitchen and reached there at

about 12-30 hours. By reaching there, they sought the assistance of 2 (two) independent witnesses in order to carry out the process of search and

seizure in their presence.

7.3. Inside the Naga Kitchen restaurant, the team found two persons sitting in a table in front of each other. The team along with the independent

witnesses approached the said two persons showing their identities and asked about the drugs. The two persons disclosed their identities as Sri Arjun

Sharma i.e. the accused-petitioner and Md. Salam. Md. Salam had a bag in his lap. On being asked, he opened the bag and took out one transparent

polythene packet containing tablets marked as ‘R’ and ‘WY’. Some tablets from the packet were taken out and crushed into powder

form. When checked through the drug detection kit brought by the NCB team it indicated Methamphetamine. When the accused-petitioner was

confronted by the NCB team, he informed that he had come there to receive about 6 Kgs of Methamphetamine tablets.

7.4. The packet was weighed and on weighment, it was found to be 5.800 Kgs. The packet was then sealed and marked using the seal of NCB.

7.5. It was informed by Md. Salam that his accomplice, Sri K. Basanta Singh was waiting outside the restaurant. By pointing towards him through the

window glass pane, Md. Salam had identified him. Accordingly, the personnel from NCB team intercepted the other accused person, Sri K. Basanta

Singh.

7.6. Apart from the Methamphetamine tablets weighing 5.800 Kgs some other materials/articles like Adhaar card, wallets, currency notes, ATM

cards, PAN cards, etc. were seized from the possessions of the persons so apprehended in presence of the independent witnesses. After such

seizure, those were sealed with the signatures of the seizing officer of the NCB team, independent witnesses and the accused persons. Search and

seizure list and a panchnama was prepared on the spot. Thereafter, all the three persons were taken to the office of the NCB and the seized

contraband substances were deposited to the NCB malkhana.

7.7. On the basis of the information revealed by the accused persons, 1.86 Kgs of Methamphetamine tablets was seized from the possession of Sri K.

Basanta Singh at Khadananda Lodge, near Downtown Hospital, Guwahati.

7.8. The statements of all the three apprehended accused persons were recorded under Section 67 of the NDPS Act and thereafter, they were

arrested. After arrest, all the three accused persons were produced before the Court of learned Chief Judicial Magistrate, Kamrup (Metro) Guwahati

on 04.01.2021. The seized samples were also produced before the Court and samples for chemical examination were drawn in the presence of the

learned Magistrate.

7.9. The procedure prescribed in Section 67 of the NDPS Act has been stated to be complied with.

It is contended on behalf of the respondent NCB that 7.660 (=5.800+1.860) Kgs of Methamphetamine tablets have been seized from the possession

of the accused persons. As per Entry No. 159 of the Table appended to the NDPS Act, issued in exercise of powers conferred by clauses (viia) and

(xxiiia) of Section 2 of the NDPS Act, a quantity of Methamphetamine tablets above 50 grams is termed as commercial quantity. Viewed in a relation

to the total quantity of Methamphetamine tablets seized in connection with the case in hand, it is prima facie evident that the quantity of the contraband

substance i.e. Methamphetamine tablets seized is commercial quantity. Learned counsel for the accused-petitioner has not made any submission in

this regard at this point.

It is settled law that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the

NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of

granting bail.

Section 37 of the NDPS Act starts with a non-obstante clause. Keeping the nonobstante clause in mind, a reading of sub-section (2) of Section 37

of the NDPS Act makes it clear that the power to grant bail to a person accused of having committed an offence either under Section 19 or Section

24 or Section 27A and also offences involving commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section

439, CrPC, it is also subject to the restrictions placed by sub-clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an

opportunity to the Public Prosecutor to oppose the application for such release, the other two conditions viz. (i) the satisfaction of the Court that there

are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on

bail, have to be satisfied. In other words, these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of

bail. The operative part of Section 37, NDPS Act is in the negative form. Such stringent restrictions have been put on the discretion of the Court for

considering application for release of a person accused of offences prescribed therein by the Legislature consciously in view of the seriousness of the

offences. The conditions mentioned in Section 37 of the NDPS Act are cumulative and not alternative. The satisfaction contemplated regarding the

accused being not guilty, has to be based on ""reasonable grounds"".

The expression “reasonable grounds†means something more than prima facie grounds. It contemplates substantial probable causes for

believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and

circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence [Collector of Customs, New

Delhi vs. Ahmadalieva Nodira], [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., AIR 2020 SC 721]. The Court while considering the

application for bail with reference to Section 37 of the NDPS Act is not called upon to record a finding of not guilty. It is for the limited purpose

essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing

that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects,

noted above, is sine qua non for granting of bail under the NDPS Act in respect of an accused of an offence involving commercial quantity.

From the materials made available before this Court, it has, thus, emerged that 7.660 kgs of Methamphetamine tablets were recovered from the

possession of the two accused persons â€" Md. Salam and Sri K Basanta Singh. At the time of search, recovery and seizure of 5.800 Kgs of

Methamphetamine tablets from the possession of Md. Salam the accused-petitioner was found in his company in the same table inside the restaurant,

Naga Kitchen. As per his own statement, he was the receiver of the said contraband. The materials on record prima facie shows that search,

recovery and seizure were carried out by the NCB team in presence of two witnesses.

From the materials on record it is evident that a large quantity of contraband was recovered during the operation carried out by the NCB team and

such materials prima facie indicate the involvement of the accused-petitioner in the transaction involving 7.660 Kgs of Methamphetamine tablets

which is a contraband substance under the NDPS Act. The accused-petitioner is one of the three persons involved in the said transaction. In an

application for bail involving contraband of commercial quantity which brings in the limitations prescribed in Section 37 of the NDPS Act, it is not the

period of detention but the merits qua the twin conditions laid down in Section 37 of the NDPS Act which are required to be considered. Considering

all the above facts and circumstances in its entirety, this Court is not persuaded to reach a finding that there are reasonable grounds to reach a finding

that the accused-petitioner is not guilty of the offences for which he has been arrested.

In view of the above discussion, this Court finds that the application is bereft of any merit. Consequently, the same is dismissed.

It is, however, made clear that the observations made above are only for the purpose of consideration of the present accused-petitioner’s

prayer for bail and none of the observations made in this order shall have any bearing on the trial of the accused-petitioner, if he is charge-sheeted in

the case.