Dhaniram @ Munna Sahu vs State Of Chhattisgarh

This is the 2nd bail application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the Applicant, who has been arrested in connection with Crime No.153/2022 registered at Police Station Marwahi, District Gourela-Pendra-Marwahi (CG) for the offence under Section 20(b) of the NDPS Act. Earlier application has been dismissed as withdrawn vide order dated 19.06.2023 passed in M.Cr.C No.3600/2023.

Prosecution case is that on the basis of information received on 26.05.2022, SHO, PS Marwahi has conducted raid in the agricultural field of the present Applicant and recovered 210 kgs of ganja, which was kept in 6 number of plastic bags based on which, the aforesaid offence has been registered against him.

Learned counsel for the Applicant submits that the Applicant has been falsely implicated in the crime in question for which, he was arrested on 26.05.2022. He submits that material seizure witnesses have been examined but they have not supported the case of the prosecution. He further submits that there is non-compliance of Section 52A of the NDPS Act and and samples were not drawn on the spot itself before the Magistrate, which is absolutely not permissible under the law and to buttress the same, he placed reliance on Union of India vs. Mohanlal & Another reported in (2016) 3 SCC 379, Simranjit Singh vs. State of Punjab reported in 2023 SCC OnLine SC 906 and on a recent decision rendered in the matter of Mustkin vs. State of Chhattisgarh Cr.A. No.1442/2024 S.L.P (Cri.) No.1230/2024 dated 07.03.2024 as also on Allepu Ramesh vs. The State of Chhattsigarh, SLP (Cri.) No.2500/23 and submits that the Applicant therein, who was incarcerated for a period of more than 1 year, was enlarged on bail. He lastly submits that the trial is likely to take quite some time for its conclusion, the Applicant has no criminal past, therefore, considering all these aspects, he may be released on bail by this Court.

Per contra, learned counsel for the Non-Applicant/State opposed the bail application and submits that the lacunae, if any, in investigation shall be considered at the time of trial. She referred to Mukesh Rajaram Chaudhari vs. The State of Maharashtra Bail Application No.54/2023 decided on 27.09.2023 wherein, dealing with the aspect of Section 52A of the NDPS Act, it was observed that non-compliance of procedure under Section 52A of the said Act cannot be the sole consideration on the basis of which, the accused automatically becomes entitled to bail as a matter of right. She further submits that rigors of Section 37 of the NDPS Act would continue to apply and only when the bail Court is satisfied that reasonable grounds of believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, the bail would be granted. She further submits that in the matter of Union of India vs. Mohanlal & Another (supra), the focal issue under consideration before the Supreme Court was with respect to proper disposal of contraband goods seized during the course of investigation and Section 52A of the NDPS Act deals with “Disposal of Seized Narcotic Drugs and Pshychotropic Substances”. She further submits that even if the said provision was not complied with, the prosecution was able to satisfy the charges levelled against the Applicant as the contraband has not been destroyed. She further submits that merely because such procedure has been carried out belatedly cannot give any benefit to the accused, who was involved in a serious offence under NDPS Act. She further submits that the seriousness of the said charge has elaborately been dealt with in the matter of Union Of India vs Ram Samujh And Anr reported in (1990) 9 SCC 429 and she placed reliance on Narcotic Control Bureau vs. Mohit Aggarwal reported in (2022) SCC OnLine SC 891, Rizwan Khan vs. State of Chhattisgarh reported in (2020) 9 SCC 627, Union of India vs. Mohd. Nawaz Khan reported in (2021) 10 SCC 100 and State of Kerala vs. Rajesh reported in (2020) 12 SCC 122 and prays to dismiss the application.

In the matter of State of Kerala vs. Rajesh (supra), law relating to exercise of bail application in the offences under the NDPS Act has been dealt with and the following was observed at para-18:-

“18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh (1999) 9 SCC 429 , 1999 SCC (Cri) 1522, it has been elaborated as under:

“7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) (1990) 1 SCC 95,  1990 SCC (Cri) 65 as under: (SCC p. 104, para 24)

‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students  of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’

To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of  offences under the NDPS Act should notbe released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail.

Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.”

In the matter of Narcotics Control Bureau Vs. Mohit Aggarwal (supra), it was held thus:-

“…………...The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as   persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”

In the matter of Rizwan Khan Vs. State of Chhattisgarh (supra), a principle has been reiterated that the independent witnesses have turned hostile, when there is reliable official witness is no ground for acquittal under the NDPS Act. It was materially observed at para-12 which reads thus:-

“It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar (2018) 13 SCC 808 , (2019) 1 SCC (Cri) 420].”

In the matter of Union of India Vs. Mohd. Nawaz Khan (supra), the issue of conscious possession when a contraband has been found in a private vehicle has been explained and the following was observed at para-26:-

“What amounts to “conscious possession” was also considered in Dharampal Singh v. State Of Punjab . (2010) 9 SCC 608 , (2010) 3 SCC (Cri) 1431, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State Of Rajasthan . (2015) 6 SCC 222 , (2015) 3 SCC (Cri) 881, this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.”

In the instant case, on the basis of secret information, the police has conducted raid in the agricultural fields of the Applicant at village Marwahi and recovered a huge quantity of contraband ganja i.e. 210 kgs kept in 6 plastic bags.

Considering the aforesaid principle laid down in catena of judgments of the Supreme Court, this Court is of the considered view that rigors of Section 37 of NDPS Act would continue to apply and if any procedure has not been followed, the same shall be seen during trial after leading evidence in this regard, though this Court, prima facie, is of the view that substantial compliance has been done at this stage. This Court does not find any reasonable ground to believe that the present Applicant is not guilty of offence and he may not commit any offence while on bail.

For the foregoing reasons, the instant bail application is rejected.

It is made clear that the observations made hereinabove shall not be construed as an opinion on the merits of the case and the trial Court shall decide the case strictly on its own merits in accordance with law in an expeditious manner.