Kalubhai Valjibhai Vahoniya vs State of Gujarat

Z.K. Saiyed, J.—Present applicant, accused of CR No. II-37 of 2006 registered before the Gorva Police Station, Vadodara, has filed this bail application u/s 439 of CrPC for the alleged offences punishable u/s 8(c), 15, 18, 20, 29 and 58 of NDPS Act, read with Section 120-B, 195, 419, 465, 467, 468 and 471 of IPC. The offence was committed on 7.4.2008 and complaint was lodged on 8.4.2008. The present applicant was arrested on 19.8.2008.

It is submitted by the learned advocate for the applicant that the FIR was lodged by the applicant against two accused and during the raid at the place of accused, contrabands in the form of Charas, Hashish, Ganja were found in the possession of the accused. Subsequently, it is alleged by the prosecution that the present applicant had, with the help of other Police Inspector Shri R.M. Rathod, had made concocted case of narcotics against the accused and applications were given by the accused to Home Department, and the investigation of the case was handed over to CID Crime. Subsequently, CID Crime filed final report exonerating the original accused in the FIR from whose place the contraband was found and the present applicant came to be arrainged as an accused with two other accused and charge-sheet was filed accordingly.

It is also submitted by the present applicant that he has received information regarding illegal possession of contrabands from P.I. Shri R.M. Rathod of Vadi Police Station. So, applicant raided that alleged house and under due process of law, panchnama was carried out by applicant and lodged FIR at Gorva Police Station. But, from the investigation of CID Crime, Gandhinagar, it has come on record that no offence has been committed by that accused, so report u/s 169 of CrPC has been filed against the accused.

It is also submitted by the present applicant that victim Mr. Prakash Pillai was implicated as an accused was authorised to collect amount of Rs. 15 crores from Somani Brothers, which was required to be recovered on behalf of one GTP Steel Company from Somani Brothers who have hatched conspiracy with one Mr. Rathod to falsely implicate Mr. Prakash Pillai in narcotic case. It is also contended that present applicant had only assisted the P.I. by raiding the premises of Mr. Prakash Pillai and drawing the panchnama. Though, P.I. Mr. Rathod was present at the time of drawing the panchnama, along with other members of raiding party, yet their presence was not recorded in that panchnama. It is argued by learned Senior advocate Mr. SV Raju that P.I. Mr. Rathod had found one black bag from Arunodaya Circle which was subsequently planted at the house of Mr. Prakash Pillai and present applicant had shown that the bag is recovered from the premises of Mr. Pillai. So, Mr. Raju has drawn the attention of this Court to the said allegation and submitted that charge-sheet is absolutely misconceived and false. He has also contended that information regarding the offence was received and it was entered into station diary and thereafter warrant u/s 42 of NDPS Act was issued and during the said raid, contraband was found from the house of Mr. Pillai.

Learned Senior Advocate Mr. SV Raju has further contended that original accused No. 3 Mr. Rathod had gone to the place of Mr. Pillai before the present applicant and thereafter present applicant was called when original accused Mr. Pillai raised objection about the jurisdiction of P.I. Mr. Rathod. So, he was called to prepare panchnama, and, therefore, Mr. Raju has contended that there is no stretch of imagination to say that between Mr. Rathod and present applicant, there was a conspiracy to falsely implicate Mr. Pillai in NDPS Case. Mr. Raju has read the statement of the staff members of PI Mr. Rathod and contended that Mr. Rathod was present at the house of Mr. Pillai and thereafter present applicant was called. So, it is easily transpired that Mr. Rathod has planted contraband and not by present applicant. So, Mr. Raju has argued that simply applicant can be cited as an accused of the offence punishable u/s 58 of NDPS Act and for which punishment provided is only six months and, therefore, the applicant is entitled to be released on bail.

Mr. Raju has also contended that there is no evidence in the entire charge-sheet to connect the present applicant in the conspiracy to falsely implicate the accused Mr. Pillai in NDPS Case. Mr. Raju has read the papers of charge-sheet and contended that applicant is a public servant and all his legal rights of service are intact with the Government and his presence can be secured and there is no reason to say that he would not be available at the time of trial.

Mr. Raju has relied upon the decision of the Apex Court in the case of Virupaxappa Veerappa Kadampur Vs. The State of Mysore, and contended that present applicant has drawn the panchnama of seizure "under colour of duty", therefore, preparation of false panchnama and report regarding seizure of contraband is required to be treated as the said act done "under colour of duty". Mr. Raju has also relied upon the decision of the Apex Court in the case of K.K. Patel and Another Vs. State of Gujarat and Another, and argued that from the observation of the Apex Court that the question of under colour of duty is applicable and this is a fit ground to consider the plea of this bail. Learned advocate has also vehemently argued that from the papers, it appears that present applicant was not in the knowledge regarding contraband and he was just called by other P.I. of other police station who has carried out the raid outside of his jurisdiction and told him to follow the provisions of NDPS Act. So, it was his duty to draw the panchnama of seizure and to register the offence. So, Mr. Raju has finally contended that the applicant has good case and sound reason to get the bail.

Heard Mr. Maulik Nanavati learned APP for the State and Mr. NK Majmudar learned advocate for witness No. 14. Mr. Maulik Nanavati has read the papers and contended that the applicant is complainant and from other accused Mr. Rathod, I.P., he has received information and thereafter he became a complainant. Mr. Nanavati has also read the seizure panchnama and other documents and argued that in panchnama also it appears that the name of other P.I. Mr. Rathod is absolutely absent and from the face of panchnama, it appears that it is on record to say that applicant has received information of offence and then procedure of law was followed and it is on record to show that on intimation of other P.I., Mr. Rathod went to the place of offence It is also contended that Mr. Rathod is not cited as witness and in fact, Mr. Pillai was in jail and his wife has filed petition, therefore, that fact has come on record. He also contended that Section 161 of Code of Criminal Procedure cannot come in way to obtain prosecution sanction. Mr. Nanavati has read the statements of witnesses and contended that conspiracy to plant bogus case against Mr. Pillai is prima-facie established and the police officer cannot misuse serious provisions of NDPS Act just to book innocent person in a false case of NDPS. It is also contended that from the evidence of prosecution case, it is prima-facie established that applicant and other police officer have committed the offence and innocent person was booked under a false case of NDPS. So, it cannot be considered that original panchnama and FIR was lodged under the colour of duty with discharge of duty.

I have gone through the panchnama of seizure. It appears from the panchanama that present applicant has received information regarding contraband and then panchas were called and all mandatory provisions of law were followed. I have also gone through the statement of witnesses who have explained that as per the directions and instructions of the present applicant, they have dictated their statements. It appears from the statement of one policeman Bharatsingh Purshottam, who has firmly stated before the I.O., that he was not the member of the raiding party and on that very day, he was assigned the duty at hospital and present applicant told him that he shall say that he was present at the place of search and this witness has also called a person at the place with articles of the weight measurment. From the contents of the statement of this witness, prima-facie, it appears that no legal procedure was followed by the present applicant and statements of the witnesses were concocted under the guise of present applicant. It also appears that other P.I. Mr. Rathod made a raid to the place of Mr. Pillai and present applicant has joined their hands with Mr. Rathod, therefore, the definition of criminal conspiracy is concerned, the main ingredients "agreement" is proved from the papers and it is prima-facie established that the present applicant and P.I. Mr. Rathod with other accused have hatched the conspiracy. Section 120A of IPC reads as under:

120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done:

an illegal act, or

an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

In view of the aforesaid definition, the meaning of criminal conspiracy is made clear. Thus, if the said definition is taken into account, then, word "agreement" can be said to be a relevant or main ingredient in the said offence. The basic formula of the aforesaid offence is "Actum Contra Actum" or "Promise against Promise", meaning thereby, there has to be an agreement between two or more persons for committing any illegal act or committing a legal act by illegal means. Agreement itself can be said to be an act and the base of mutual agreement therein is the commitment of each conspirator, which is a promise against promise and the basic principle terming the agreement itself as an act is contemplated under law in the said provision. The learned author Halsbury''s in Halsbury''s Law of England IV Edition, Vol. - II, in para-44 has noted on the aforesaid point, as under:

Conspiracy consists of the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court.

Considering the said point, various High Courts and Hon''ble Apex Court has numerous times observed that "agreement between two or more persons for committing an illegal act is sufficient and therefore, it becomes immaterial as to whether the offence has been committed or not. The agreement arrived at for violating the law for criminal conspiracy, is an essential ingredient to hatch the aforesaid criminal conspiracy, is something special than abatement, and both the points are different and it has been necessary to consider the impact upon the facts pursuant to verification of evidence. Criminal conspiracy can be true on the basis of circumstantial evidence and it can also be inferred from the attitude of the conspirator that the agreement had arrived at. The evidence against one conspirator for committing an illegal act can also be taken as such against other accused.

"Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another fact of the state of mind. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believe in "reason to believe" as a higher level of state of mind. Likewise, "knowledge" will be slightly on higher side than "reason to believe". A person can be supposed to know where there is a direct appeal to his sense and a person is presumed to have a reason to believe if he has sufficient cause to believe the same.

From the above discussion and observation of law after perusing the papers, I have found that there was an agreement with the Police Inspector Mr. Rathod to book innocent person in a false case of NDPS Act. A bare submission by way of explanation of applicant that when he was at his police station, the other accused P.I. Mr. Rathod called him, so he went to the place and procedure of raid was conducted by him but from the panchnama, FIR and other evidence, it appears that the applicant has neither mentioned in panchnama nor in FIR the name of accused Mr. Rathod. From the perusal of the statements of witnesses, it is found that the present applicant has conspired with other accused to book an innocent person in serious case of NDPS.

Police is meant for public security and to maintain law and order situation. When police is crossing their limits and misusing their power and trying to damage the carrier of an innocent person just to book him in a serious offence, then, with a strict observation the illegalities of the policeman is required to be curtailed. I have also not found that protection of Section 197 of CrPC can be given to the present applicant. Protection of Section 197 of CrPC can be given when alleged act done by public servant is reasonably connected with the discharge of his official duty. I am of the opinion that alleged offence committed by present applicant and others has nothing to do with discharge of their official duties. So, the question of sanction cannot arise in present case. I have found that present applicant has committed serious offence, therefore, bail cannot be granted in such a serious offence.

In view of above discussion and observation, this application fails and is hereby dismissed. Rule is discharged.