Nizamuddin vs Union of India (UOI)

Ravindra Singh, J.—This is the IInd bail application filed by the applicant Nizamuddin with a prayer that he may be released on bail in Case Crime No. 3 of 2004, u/s 8/21/27A/29, N.D.P.S. Act, P.S. Narcotics Control Bureau, Varanasi.

The Criminal Misc. 1st Bail Application No. 21795 of 2004 has been disposed of on 14.11.2005 by this Court as not pressed.

The prosecution story, in brief, is that in the present case the F.I.R. has been lodged by Sri Sanjeev Kumar Singh. The alleged arrest and recovery is said to have been made by the officers of Narcotics Control Bureau (in short ''N.C.B.''), Varanasi, on 13.4.2004 at about 11.30 p.m. According to recovery memo the officials of the N.C.B. received information on 13.4.2004 in respect of a transportation of heroin in heavy quantity for the sale purpose, on that information, a team of N.C.B. staff came at Allahabad. At about 1.30 p.m. a Gama vehicle bearing its registration No. RJ-35-T-0016 was intercepted, after its search, a recovery of 20 kgs. heroin was made and the accused Kudratullah alias Firoz and Bhairo Lal were arrested, they confessed before the arrested officer that the aforesaid heroin was to be received by the applicant who was present in a Tata Sumo Vehicle, but he managed to escape, after the said discloser.

The N.C.B. Staff of Varanasi, were informed and requested to arrest the applicant on that information the team of the N.C.B. Staff, Varanasi, arrested the applicant and co-accused Tarak Nath Ghosh and seized the Tata Sumo vehicle.

Heard Sri Ravindra Sharma learned Counsel for the applicant and Sri Sanjay Kumar Singh learned Counsel for N.C.B.

It is contended by the learned Counsel for the applicant :

(i) That no heroin or any other contraband was recovered from the possession of the applicant. According to the prosecution version itself 20 kgs. heroin was recovered from the possession of co-accused Kudratullah alias Firoz and Bhairo Lal.

(ii) That the name of the applicant has been disclosed by co-accused Kudratullah alias Firoz by alleging that the applicant had to take the delivery of the aforesaid heroin who was in a Tata Sumo vehicle. The applicant was arrested, but nothing incriminating was recovered from his possession or from his seized vehicle. The only evidence against the applicant is, the confessional statement of co-accused Kudratullah alias Firoz and the statement of the applicant, which was taken in writing by the arresting officer, but the said confessional statement has not been voluntarily made. It has been extorted under threat and coercion, therefore, no reliance can be placed on such statement. The applicant was arrested he was badly beaten and he was given the electric shocks, in order to extort confession. He was medically examined in Varanasi Jail on 16.4.2004. Five injuries were found on his person, which were caused by hard and blunt object. All the injuries were simple in nature and duration was about 1 to 3 days.

(iii) That there is no independent witness to support the prosecution story. All the witnesses of arrest are officials of N.C.B. They are interested and partisan witnesses. No reliance can be placed on these witnesses.

(iv) That the applicant is having no criminal antecedent. There is absolutely no likelihood of his involvement in such type of offence if he is released on bail.

(v) That there is no compliance of mandatory provision of N.D.P.S. Act.

It is opposed by Sri Sanjai Kumar Singh the learned Counsel for the N.C.B. by submitting :

(i) That the complaint has been filed under Sections 8/21/ 27A and 29, N.D.P.S. Act in respect of the incident which had occurred on 14.4.2004 in which 20 kgs. heroin was recovered from the possession of co-accused Kudratullah alias Firoz and Bhairo Lal.

(ii) The statement of co-accused Kudratullah alias Firoz, Bhairo Lal, Ramesh Sharma, Suresh Singh and Baliram Misra were voluntarily recorded on 14.4.2004 u/s 67 of the N.D.P.S. Act. According to their statement the applicant is actually involved in the commission of the alleged offence. According to their statement the recovered 20 kgs. heroin was to be delivered to the applicant.

(iii) The statement of the applicant was also voluntarily recorded on 14.4.2004 u/s 67 of the N.D.P.S. Act. It has been recorded in writing and signed by the applicant. He has confessed his involvement in the commission of the alleged offence.

(iv) That voluntarily statement of Subhash Banerjee u/s 67 of the N.D.P.S. Act was recorded on 15.4.2004 and voluntarily statement of Tarak Nath Ghosh was recorded u/s 67 of the N.D.P.S. Act on 28.4.2004. Apart from the above statements there are large number of other material documents establishing the actual involvement of the applicant in illicit trafficking of heroin. In support of above submissions a case of Union of India v. Ram Samujh and Anr. 1999 (3) ACR 2105 (SC): XXXIX 1999 ACC 643, decided by Hon''ble the Apex Court has been cited, in which Hon''ble the Supreme Court has made the following observations :

It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in the mind that in murder case, accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or inflicting death blow to number of innocent young victims, who are vulnerable ; it causes deleterious effects and deadly impact on the society ; they are 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.

(v) That the contention of the applicant that the confessional statement of the applicant was taken under coercion and he was badly beaten and electric shocks were given to him is absolutely false, because the medical examination report filed by the applicant shows that all the injuries were simple and on the non-vital part of the body which may be caused during the course of arrest also.

(vi) That it is settled law that statement u/s 67 of the N.D.P.S. Act is admissible in evidence and it shall not be hit by Section 25 of the Indian Evidence Act. Recording of telephonic talk between the applicant and co-accused Kudratullah alias Firoz is also available showing his involvement in illicit trafficking of heroin. In the case of T. Narasingh Murty Vs. G.N. Gajapati and Another, , in which it has been held by the Hon''ble Supreme Court that all records relating to several forms are admissible or reliable evidence. In such circumstances the applicant is not entitled for bail.

After considering the facts and circumstances of the case, submissions made by the learned Counsel for the applicant and Sri Sanjai Kumar Singh learned Counsel for the N.C.B. and considering the nature of the offence and its gravity and without expressing any opinion on the merits of the case the applicant is not entitled for bail, therefore, the prayer for bail is refused.

Accordingly, the bail application is rejected.