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Judgment
Anoop Chitkara, J
For possessing 938 tablets of Nitrosun-10 which is a prohibited drug, the petitioners who are under arrest, and were merely present in the home of
the other accused, from where the Police had recovered the Psychotropic Substances, on being arraigned as accused in FIR Number 95 of 2019,
dated Aug 13, 2019, registered under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called “NDPS
Actâ€), in the file of Police Station East Shimla, District Shimla, HP, disclosing non-bailable offences, have come up before this Court under Section
439 CrPC, seeking regular bail.
Status report stands filed. I have seen the status report(s) as well as the Police file, to the extent it was necessary for deciding the present petition,
and heard learned Counsel for the parties.
Prior to the present bail petition, the petitioners had filed a petition under Sec-tion 439 CrPC, before Special Judge, Shimla, HP. However, vide
order dated 13.09.2019 the Court dismissed the petition.
FACTS
The gist of the First Information Report and the investigation is that on receipt of a secret information the Police party reached at Flat No. 10, Block
C-26, Housing Board Colony, Vikasnagar, Shimla Town on Aug 13, 2019 at 11.45 a.m. On reaching near the flat the police party heard commotion
from inside the said flat and the main door was open. On this the Investigating Officer alongwith the police officials entered into the flat. In the bed
room three persons were creating ruckus and talking in a loud voice. The Police party asked about their identities and they revealed their names as
Sameer Bajaj (owner of the flat), Shubham Bitalu (petitioner in Cr.MPM No. 1984 of 2019) and Ravinder Ranjta (petitioner in Cr.MPM No. 1985 of
2019). The Police also noticed that articles were lying scattered on the bed. Amongst these articles the police found strip of Nitrosun-10 drug and one
tablet was unwrapped. It raised suspicion in the mind of the Police that there might be more drugs in the house/flat. On this the police party associated
independent witnesses and in their presence conducted the search of the house. In another room of the flat there was a wooden shelve on which a
carry bag was lying. On checking the said carry bag, police recovered 46 strips of Nitrosun-10 drug. Out of these 46 strips, one tablet was found
missing from one strip and the re-maining 45 strips had 20 tablets each. Consequently, police recovered, 938 tablets of Nitrosun-10 drug, in all.
Subsequently, the police party also complied with the proce-dural requirements under the NDPS Act and the CrPC and arrested the accused per-sons
including the present bail petitioners. The recovered substance was sent to the laboratory for chemical analysis and it opined as under:
“Various scientific tests such as physical identification, chemical, chromatographic analysis were carried out in the laboratory with the exhibit
stated as tablets of Nitrosun-10, with representative & homogenous sample the above testes performed indicated the presence of Nitrazepam in the
exhibit stated as Nitrosun-10. On quantitative analysis, the amount of Nitrazepam was found to be 9.98 mg per tablet in the exhibit stated as Nitrosun-
The result thus obtained is given below. The exhibit stated as Nirosun-10 is sample of NITRAZEPAM tablets.â€
ANALYSIS AND REASONING:
Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such
a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to
safeguard the interests of the victim, the accused, the society, and the State.
Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a),
defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined
category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum
and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of impris-
onment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
The case of the State is that the quantity recovered is commercial quantity. With-out going into the said controversy, in the present case more
important question for the purpose of deciding the present bail petition is that whether the petitioners, who were visitors to the home of the main
accused, from whose home, the Police had re-covered the contraband, had the initial knowledge and awareness of the drugs being kept in the said
house? The Police had conducted the search of the house on the basis of complaint of a neighbor, who apprised the Police that the house is a den of
drugs. However, he did not name the present petitioners as the regular visitors or members of the drug mafia. The Police either did not make out any
investigation to connect them as members of the mafia, or the incriminating material did not come in the inves-tigation against the petitioners. Thus,
mere presence in the house, without other evi-dence implicating them, or pointing out that they were regular visitors to the said house, would entitle the
petitioners to grant of bail, subject to the stringent condi-tions, as detailed in this order.
The following judicial precedents guide as follows:
a) In MohdAlam Khan v. Narcotics Control Bureau, (1996) 9 SCC 462, Supreme Court holds,
“3. At the outset, it may be pointed out that the appellant was tried by the Special Judge along with the other accused and also along with a
connected case. On 5-3-1989, officials of Narcotic Control Bureau, Bombay (N.C.B. for short) raided the houses of the co-accused. One of the co-
accused by name, Raj Babu Pardan, pointed out the residence of the appellant situated at second floor, S.M. Mansion, 299 Bellasis Road, Bombay,
thereby suggesting to conduct a raid in that premises as well. Accordingly that house of the appellant was searched on 6-3-1989 and some
incriminating documents along with cash amount of Rs. 45,000/-came to be seized. In connection with that seizure, the appellant was brought to the
office of the Narcotic Control Bureau, Bombay for interrogation. While the appellant was in the office of the Narcotic Control Bureau, Bombay for
the purpose of interrogation, the Intelligence Officer of the said Bureau received information to the effect that the appellant was having another flat
No. 102, in building No. 8A1 Quba Co-operative Housing Society, Millat Nagar, Andheri, Bombay-58. The further information received was to the
effect that the appellant was trafficking in narcotic and psychotropic drugs in a big way and that he had stored Mandrex tablets numbering 50,000 to
60,000 in that house. On receipt of this information on the evening of 7th March, 1989, the said premises came to be searched in the presence of
Panchas. In the search, the officials seized 50,000 Mandrex tablets contained in a maroon coloured bag along with certain documents. The samples of
the said Mandrex tablets were drawn under a panchnama. The Deputy Director of Narcotic Control Bureau, was informed about the result of the
search. It may be noted that the said search was conducted when the appellant was being interrogated by the Narcotic Control Bureau officials. It is
also common ground that the said premises was under lock and key and the search party broke upon the lock for conducting the search. In the course
of the interrogation, the appellant was asked about the seizure of those 50,000 Mandrex tablets and he was said to have given statements under
Section 108 of the Customs Act, 1962, and also under Section 67 of the N.D.P.S. Act, 1985. In the course of the search and seizure of the said
premises along with the contraband tablets and agreement dated 8.3.1989, supposed to have been signed by the appellant in favour of the
promoter/builder was also seized by the officials.
The learned Additional Solicitor General submitted that the agreement by the appellant found in the premises in question and recovered by the
officials containing the signature of the appellant is sufficient to establish that the appellant was the owner and in possession of the premises. In this
connection, he invited our attention to Section 66 of the N.D.P.S. Act and submitted that the prosecution has established the case beyond doubt. He
also submitted that the admission of the appellant during the course of interrogation under Section 67 of the N.D.P.S. Act is admissible in evidence
and coupled with the fact of seizure of agreement containing the signature of the appellant, it is not open to the learned counsel for the appellant to
contend that the prosecution has failed to establish the ownership of the appellant regarding the premises in question.
We have considered the rival submissions. We do not think that the learned Additional Solicitor General is right in invoking the aid of Section 66 of
N.D.P.S. Act for Section 66(i) visualises the production of a document which has been seized from the custody or control of any person or furnished
by any person. In this case, the document namely the agreement has not been seized from the custody of the appellant or it has been furnished by him.
In order to invoke the aid of Section 66, the prosecution should have established that the appellant is the owner and was in actual possession of the flat
in question. Therefore, we are not able to accept the argument of the learned Additional Solicitor General. It is not in dispute that the appellant did not
admit his signature in the agreement in question. The prosecution did not bother to produce any independent evidence to establish that the appellant
was the owner of the flat in question by producing documents from concerned Registrar's office or by examining the neighbours. No statement has
been made by the prosecution that in spite of the efforts taken by them, they could not produce the document or examine the neighbours to prove the
ownership of the appellant relating to the flat in question. It is relevant to note here that two independent witnesses attested the panchnama. Only one
of them was examined as P.W. 5 who did not support the prosecution version and therefore was treated as hostile. In this case except the retracted
statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the
learned Special Judge extracted in the beginning and confirmed by the High Court.
The High Court was not right in holding that “the learned Trial Judge was therefore right in holding that in view of Section 66 of the N.D.P.S.
Act, the said document can be admitted in evidence and it goes to show that the said flat was owned by the appellantâ€. Again the High Court
observed that “even assuming†that the said agreement is excluded from consideration, there remains the specific information received, Exhbt. 33
and his own statement recorded by the Authority under Section 313, Exhbt. 83 and 84 and all of them go to show that the appellant was the owner of
the said flat. As pointed out earlier that nobody has identified the flat in question as belonging to the appellant and in the absence of corroborating
evidence, one cannot come to a confirmed conclusion regarding ownership and possession on the basis of the retracted statements of the appellant
alone.
For all the reasons, we hold that the prosecution failed to establish the ownership of the flat in question as belonging to the appellant and
consequently the conviction and sentence challenged in this appeal cannot be sustained. Accordingly, the appeal is allowed and the conviction and
sentence passed against the appellant are set aside.â€
b) In Ismailkhan Aiyubkhan Pathan v. State of Gujarat, (2000) 10 SCC 257, in a case where 6 persons were found present in a room, from which a
gunny bag was recovered, which was containing charas, Supreme Court holds,
“2. The summary of the prosecution case is the following:
PW 7 Inspector of Police of Crime Branch in the Vigilance Squad got some sleuth information on 6-5-1991 that illicit trafficking was going on in the
room on the 1st floor of a building which was in the possession of one Nasir. He also got information that the said Nasir had kept a stock of ""charas
and was dealing with the same through his servants. On the strength of the aforesaid information PW 7 along with other police personnel reached the
said building for the purpose of catching the culprits. He called out the name of Nasir but none came out holding that name. However, when he
entered the room he found all the 6 accused persons therein. He found a gunny bag being kept in the corner of the room. It was opened and the
substance therein was tested with the help of Shri B.N. Dave, who came by that way (that person is said to be an expert attached to the Forensic
Science Laboratory). Mr Dave conducted an ""on-the-spot scientific test"" and proclaimed that the substance was ""charas"".
It is unnecessary for us to go into the other evidence because we will assume that whatever PW 7 has said is correct and the rest of the evidence
for the prosecution had only supported the version of PW 7. But the question is how the appellants can be fastened with the liability for possession of
the contraband article wrapped in the gunny bag which was kept in the room.
There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs . There is also no evidence to show that
any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who
were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession
of Nasir. But that Nasir is not an accused in this case . He was not examined as a prosecution witness to disclose as to how the accused persons
happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in
question.
Thus, we are left with only a modicum of evidence as against the accused, which only shows that they were present in the room which was in the
possession of one Nasir and that the said room contained a gunny bag with the narcotic substance ""charas"".
We are unable to sustain the conviction of the offence under Section 20(b) read with Section 29 of the Act as for any one of the appellants on the
strength of the aforesaid evidence. It is too insufficient to bring home the guilt of the appellants.
It appears that the High Court put the burden on the appellants to explain as to how they were present in the room. This is what the High Court has
observed:
In the present case , at odd hours of the night when the premises was raided, all the accused were present and have not explained as to how and why
and since when they were present in the premises. Therefore, in our opinion, only inference can be drawn from their unexplained presence in the
premises, they being not tenants of the premises is that they were in possession of the premises at the relevant time and the substance found from that
premises is possessed by them.
There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in
possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely
because these persons were present when PW 7 went there.
Either those persons would have been casually present in the room or at least one of them would have been unaware of what was going on inside
the room. We are not told who among the many accused that one possible innocent person could have been.â€
c) In Om Prakash alias Baba v. State of Rajasthan, 2009 (10) SCC 632, Supreme Court holds,
“2. The prosecution story is as under:
On 11-9-1999 at about 7.00 a.m., PW 11, Ram Chander, SHO, Kotwali Fatehpur and several other police officials raided the house allegedly
belonging to the appellant to arrest Pankaj, his son in some criminal matter, and as they approached his residence, they saw the appellant who was
present, attempting to run away. He was however apprehended and the house entered and searched and a huge quantity of Charas, opium and Gaanja
were recovered from under a mattress in a newly- constructed room. The S.H.O. sent information to the Superintendent of police, Seekar and
completed the other formalities relating to the search & seizure. Several independent witnesses were also called to countersign the search memos.
The contraband recovered was sent to the Malkhana and thereafter for analysis to the Laboratory and a report was duly received. On completion of
the investigation the appellant was charged for the offences above-mentioned and as he pleaded innocence, he was brought to trial.
A bare perusal of the evidence aforementioned would reveal that the ownership and possession of the house and the place of recovery is
uncertain. As a matter of fact PW.3 has categorically stated that the house from where the recovery had been made belonged to one Durga Bhanji
and not to the appellant. Even assuming for a moment that the house did belong to the appellant and was in his possession, the prosecution was further
required to show the appellant had exclusive possession of the contraband as a very large number of persons including the appellant and five of his
brothers, their children and their parents were living therein. Admittedly, there is no evidence as to the appellants exclusive possession.â€
d) In Naushad v. State of Kerala, 2000(3) Crimes 15, Kerala High Court has held as follows,
“4.… Thus as rightly pointed out by the learned Counsel for the appellant, there is no reliable and acceptable evidence that the room in question,
was in the exclusive and conscious possession of the appellant and the other family members had no access to this room. Hence, it is very difficult to
accept the case of the prosecution that the room in question was in the exclusive possession of the appellant.â€
Given the above reasoning, in my considered opinion, the judicial custody of the petitioners/accused is not going to serve any purpose whatsoever,
and I am in-clined to grant bail on the following grounds, apart from above, but subject to strin-gent conditions:
a) The petitioners are in judicial custody since Aug 13, 2019.
b) The investigation is complete and the report under section 173(2) CrPC stands filed.
c) The petitioners are permanent resident of address mentioned in the memo of parties; therefore, their presence can always be secured.
d) In the status report, there is no mention of previous criminal history of the bail petitioner.
In the result, the present petitions are allowed. The petitioners shall be released on bail in the present case, in connection with the FIR mentioned
above, on their furnishing personal bonds in the sum of Rs.10,000/- each, with two sureties each in the like amount to the satisfaction of the Trial Court
or any other Court exercising jurisdiction over the concerned Police Station where FIR is registered.
The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, her family members, and of sureties, through
AADHAR Card, Pan Card, Ration Card, etc. The petitioners shall mention phone numbers and other details, on the reverse page of the bonds.
The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioners.
The petitioners undertake to comply with all directions given in this order and the furnishing of bail bonds by the petitioners is acceptance of all
such conditions:
a) The petitioners shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such
Court, if such Court directs to do so.
b) The petitioners shall not hamper the investigation.
c) The petitioners undertake not to contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics.
d) The petitioners undertake not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted
with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
e) The petitioners shall neither influence nor try to control the investigating officer in any manner whatsoever.
f) In case, the petitioners are arraigned as accused of the commission of any offence, prescribing the sentence of imprisonment of more than seven
years and in case the bail petitioners are arraigned as accused in any case, under the provisions of the NDPS Act, irrespective of the quantity, be it a
small quantity, then within thirty days of knowledge of such FIR, the petitioners shall intimate the SHO of the present police station, with all the details
of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court or to the Trial Court for cancellation of this bail, if it
deems fit and proper.
g) Within 30 days from today, the petitioners shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority
which had given such permission.
h) Apart from above, in case the Petitioners do not turn up before the Trial Court, then the trial Court may issue Non-Bailable warrants and send the
petitioners to the Judicial Custody for the period for which the presence of the petitioners cannot be dispensed with. If the petitioners violate any other
condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall
be lawful and permissible for the Trial Court to cancel the bail.
i) Until the conclusion of the trial, the petitioners shall not enter within a ra-dius of five kilometers from the said house, i.e., Flat No. 10, Block C-26,
Housing Board Colony, Vikasnagar, Shimla, HP, from where the alleged drug was recov-ered. The default of this condition, even for a single time,
shall lead to automatic cancellation of this bail, qua the accused who violates it.
j) In case the petitioners repeat the offence or commit any offence where the sentence is seven years or more, then before granting bail, the Courts
shall con-sider the fact that they were warned earlier about not repeating the offence and not committing it.
This order of bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges
against the petitioners.
In case the petitioners find the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any
condition, then, the petitioner may file a reasoned application for modification of such term(s).
It is clarified that the present bail order is only with respect to the above-mentioned FIR. It shall not be construed to be a blanket order of bail in all
other cases, if any, registered against the Petitioners.
Any observation made herein above shall not be taken as an expression of opinion on the merits of the case, and the trial Court shall decide the
matter uninfluenced by any observation made herein above.
The petitions stand allowed in the aforesaid terms.