CHHATTISGARH HIGH COURT
Misc. Cr. Case No. 1341 of 2002. D/d. 17.9.2002.
Rajesh Kumar @ Ramjan Khan - Applicant
State of Chhattisgarh - Respondent
For the Applicant :- Shri Ajay Ayachi, Advocate.
For the Respondent :- Dr. N.K. Shukla, AAG with Miss. Sharmila Singhai, DGA.
Narcotic Drugs and Psychotropic Substances Act, 1985, Section 37 - Recovery of 100 injections of Morphine, each ampule of 2 ml.; 500 tablets of Nitrazepam & 30 grams of opium - Bail - Undue or unexplained delay in placing requisite material with respect to twin requirements of Section 37 (1)(b)(ii) could reasonably be regarded as constituting reasonable grounds for court's satisfaction being recorded in accused's favour - CFSL report did not show that 2 ml. injection contained how much percentage of morphine - No adverse antecedents of applicant - Relations of applicants had made complaints to police authorities about illegal activities of two constables in the area but no action taken on those complaints - Applicant directed to be released on bail on furnishing personal bond in the sum of Rs. 10,000/-. [Paras 18 to 23, 26 and 27]
Cases referred :
Ram Dayal v. Central Narcotic Bureau, Gwalior, 1992 M.P.L.J. 834.
State of M.P. v. Ramkumar, 2000(2) JLJ 47.
Rajdeep Singh v. State of Punjab, 1999(3) Crimes 308.
Tribhuwan Singh v. Bahadur Singh, AIR 1949 Oudh 74 (C. No. 19).
Bidyadhar Dolai v. States, 1993 Cri. L.J. 260.
Satyendra Sah v. State of Bihar, 1996(1) Crimes 267.
Gopu Dlaiah v. State of A.P., 2002(2) Crime 191.
Babu Govekar v. State, 2002(2) Crimes 268.
Asokan v. State of Kerala, 1998(2) Crimes 123.
Hussain v. State of Kerala, 2000(4)Crime 144(SC), 2002(2) Supreme (cr.) 324, 2007(7) Supreme 83.
Abdul Hamid & others v. Radhika Parsad Verma, M. Cr.C. No. 3262/1998.
Tehsildar Singh v. State of M.P.12, 2001(3) MPHT 161.
Fakhruddin , J . - The applicant is in custody in connection with the offence registered by the Police Station Civil Lines Bilaspur at Crime No. 188/2002 for commission of the offence punishable under sections 18 and 20-B of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The prosecution story is that on 27.3.2002 Station House Officer V.K. Mishra (Respondent No. 2) received information and left the Police Station at 13.55 hours along with Sub Inspector J.P. Patel, Head Constable 926 Murlidhar Jayaswal, Constable 209 Sukhchain Prasad, Constable 975 Raghvendra Tiwari, and Constable 358 Basant Kumar for patrolling in order to check and enquire illegal vehicles, Motor Cycle, Jeep, Marshal, Tata Sumo etc., and suspicious persons, criminals, liquor and Ganja. It is said that while the police party was on patrolling, near Minimata Nagar accused-applicant Rajesh Sharma @ Ramjan S/o Kanhaiyalal Sharma, 21 years R/o Gudhiyari, Raipur, presently R/o Sakri, Bilaspur was found in suspicious condition and on investigation he was found in possession of a brown coloured bag containing Morphine injection, nitrazepam tablets and about 30 grams opium (ganja) in white colour polythene. On 27.3.2002 the notice for searching was given at 17.15, Recovery (Baramadgi) Panchnama was prepared at 17.30 in which following articles were recovered :(1) one brown coloured bag (air bag) having title in English "Spanish Bag" containing 10 packets of Morphine injection having 10-10 pieces ampule of 2-2 m.l. (2) 5 packets Nitrazepam tablets each packet containing 10 strips and each strip containing 10 tablets. (3) one white coloured polythene containing opium (ganja). Identification (Pahchan) Panchnama was prepared at 17.40 for identifying opium (ganja) by means of smelling, rubbing and by putting at fire, Weights (Taraju) Panchnama was also prepared but time is not mentioned, Weight (Taul) Panchnama was prepared at 17.50 hours and it was found that the opium (ganja) was of 30 grams, property seizure memo was prepared at 18.00, notice under section 91 of the Cr.P.C. was given to the accused applicant to enable him to produce licence, if any, the information was given to the City Superintendent of Police regarding registration of the crime, who received it on 28.3.2002 at 10.00 hours. The articles were sent to the forensic laboratory, Raipur on 2.4.2002. The report from the forensic laboratory was received on 4.4.2002. As per this report article-A was found to be Ganja (opium). The Morphine injections were also sent for examination on 15.4.2002 to the Forensic Laboratory, Raipur and the report was received on 27.5.2002 to the effect that the injections and tablets are Morphine and Nitrazepam.
3. The prosecution case is that the accused-applicant was taken to the custody on 27.3.2002 and was produced in the Court on 28.3.2002 from where he was sent to the jail custody. The challan was filed in the Court of Special Judge (Narcotics) Bilaspur on 29.5.2002.
4. The accused-applicant applied for grant of bail before the trial Court that was rejected vide order dated 4.4.2002. Counsel for the applicant submits that a perusal of the order shows that there is no opposition by the public prosecutor. He further submits that because the relations of the applicant made complaints to the authorities regarding illegal selling of narcotics drugs that is why the police has falsely implicated the accused-applicant in the crime in question.
5. Learned counsel for the accused-applicant submits that the applicant has been falsely implicated by Civil Lines Police because residents of Masanganj locality (Samast Mohallabasi Masanganj) made a complaint to the Collector and Superintendent of Police, Bilaspur on 8.5.2000 to the effect that under the patronage of Police narcotics drugs, injections and tablets are being sold openly. About 20 persons signed this complaint. In this complaint it is mentioned that Bada Babba @ Rajesh Tiwari, his younger brother Babba @ Ramesh Tiwari, resident of Masanganj and their brother-in-law (jeeja), resident of District - Bandha (U.P.) are dealing in selling of narcotics drugs, tablets and injections, since last one year, which they brought from Bhatapara. This is being done under the patronage of Civil Lines Police. It is also stated in this complaint that on 2.5.2000 at about 8 O'clock in the night Baba Khan (who is a drug addict and resident of Bilha) and others have had a quarrel with Rajesh Tiwari, his brother Babba and brother-inlaw but this matter was not properly dealt with by the Civil Lines Police and the action was taken against the innocent persons. Copy of such report was also sent to the Inspector General of Police, Bilaspur and Commissioner Bilaspur Division.
6. It is contended by learned defence counsel that there is another report dt. 13.10.2000 against two constables and three others lodged by Mumtaj Begum addressed to the Collector, Bilaspur. The said report is quoted below :
- "NAMRA NIVEDAN HAI KI NAGARPARA TALAPARA, BUS STAND MAIN AAJKAL KHULEAAM GANJA AUR BROWN SHUGAR KA DHANDHA JOR SHOR KE SATH CHAL RAHA HAI AUR CIVIL LINE THANE KE SIPAHI SUKHCHAIN AUR VIJAY NAM KE SIPAHI EN NARCOTIC VASTUON KE DEALARS AUR SUPPLYERS KO SANRAKSHAN DE RAHE HAIN SWAYAM INKA DHANDHA KARATE HAIN AUR PAISA KHATE HAIN. IS KAM MAIN GANESH NAIDU, BOBY KHAN, SAMMU KHAN AUR BROWN SUGAR KA VYAPAR CHORI-CHORI KARATE HAIN YE TEENO SHATIR BADMASH BHI HAIN THANE MAIN ENKA RIKARD BHI HAI INKA ABHI EK SATHI FARAR BHI HAI JO KI CHORI KE CASE MAIN SHAMIL THA. YE TEENO CIVIL LINE KE POLICE VALON SE MILE HUYE HAIN. MUKHABIRI BHI KARATEN HAIN AUR CHORI DAKETI AADI JURM MAIN BHI SANLAGN HAIN. POLICE NIRIH MAJDOOR LOGON KO JABARAN UNKE GHARON MAIN GHUSAKAR TALASHI LETI HAI AUR GAREEB LOGON KO SATATE HAIN KUCHH BHI NA PANE PAR BHI PAKAD KAR THANE MAIN LE JAKAR BETHA DETE HAIN AUR 2000/- YA 3000/- RU. KI MANG KARATE HA IN. NAHIN DENE PAR JHOOTHA ILJAM LAGAKAR GANJE KI PUDIYA JABARDASTI JEB KI TALASHI LENE KE BAHANE DALKAR UNHEN APARADHI SIDDH KARATE HAIN. AISA HI EK KAND KAL DINANK 12-10-2000 KO DIN MAIN 12 SE 1.00 BAJE KI KAREEB SOORAJ URF MUNNA KABADI KE GHAR MAIN VIJAY AUR SUKHCHAIN NAMAK SIPAHI GHUS GAYE AUR POORE GHAR KI TALASHI LIYE TATHA MUNNA JO KHANA KHA RAHA THAA USE JABARAN MARATE HUYE THANE LE GAYE AUR SHAAM KO 7.00 BAJE JAB UNKI MANG DWARA 2000/- MUNNA KI PATNI NE DIYE TAB CHHODE. ISKE ATIRIKT MUNNA KE GHAR KE SAMANE MUMTAJ BEGAM KIRAYE SE RAHATI HAI USKE GHAR KI BHI TALASHI LEE GAYI JABKI USKA PATI GHAR MAIN NAHI RAHATA HAI VAH PARDESH GAYA HUYA HAI. GHAR KI STRIYON KE VIRODH KARANE PAR ASHLEEL GALIYON KA PRAYOG KARATE HAIN. NAMRA NIVEDAN HAI KI CIVIL LINE THANE KO NIRDESH DIYA JAVE AVAM DOSHI VYAKTIYON PAR SHEEGHRA KARYAVAHI KARNE HETU AADESHIT KARANE KI KRIPA KARAIN. "
7. On 11.7.2002 when this matter came up for hearing learned counsel for the applicant Shri Ajay Ayachi had drawn attention of this Court on these complaints. On that day this Court directed the Superintendent of Police to submit his report. State was also directed to explain why the enquiry by an independent agency be not conducted.
8. The Superintendent of Police, Bilaspur submitted his report dt. 14.7.2002 on 16.7.2002. In this report about the complaint, which has been made by Mohallawalas of Masanganj, it is submitted that the matter was got enquired by the T.I. Civil Lines. During the enquiry statements of Tarak Agarwal and Abdul Ajij were recorded and it was found that on 2.5.2000 younger brother of Abdul Ajij namely Baba Khan, Badku and Bharat Adholia had done marpeet with Babba @ Rajesh Tiwari and on the said report an offence under sections 307, 294, 323 and 34 IPC was registered at Crime No. 254/2000. The accused were arrested on 6.11.2000 and challan was filed on 12.2.2001 and Criminal Case No. 550/2001 is pending. On the complaint made by Abdul Ajij matter was enquired and on enquiry it was stated that
- "ABHEE NASHEELEE DAVAEE NAHI BECH RAHA HAI, SATARK HO GAYA HAI JAB KABHI ESI JANKARI HOGI POLICE KO ITTLA KIYA JAVEGA. "
9. So far as the complaint of Mumtaj Begum regarding marpeet by Police on innocent persons and illegal acts of two police constables and three others is concerned, it has been stated in the report of S.P. that the matter was got investigated by City Superintendent of Police, Civil Lines, Bilaspur. The complainant had alleged that in Magarpara, Talapara, Bus Stand under the patronage of constables Sukhchain and Vijay there is open selling of opium (Ganja) and Brown Sugar. On enquiry it was found that on 12.10.2000 constable No. 209 Sukhchain was assigned duty of mobile vehicle but he did not reach at 18.10 hours at his duty place. So far as Constable No. 877 Vijay Singh is concerned his duty was from 10.10 hours to 12.00 hours for service of documents in Talpara and Masanganj but he also did not report to the police station till 12.00 hours and came at 18.00 hours in the evening at the time of counting. It has been found that on the aforesaid date and time both the constables went to the house of Mumtaj Begum and Munna @ Sooraj Satnami (Kabadi), they took search of Munna Kabadi and in spite of the fact that they did not find any narcotics drugs, they brought him to the Police Station and without information or permission to the superior officers he was asked to sit in the police station. Thereafter they again went to the house of Munna Kabadi and demanded Rs. 2000/- from wife of Munna Kabadi (Chandar Bai) and gave threat that if the amount was not paid they would beat (marpeet) Munna Kabadi. Chandar Bai had only Rs. 1100/- in her house, under the fear she took loan of Rs. 200/- each from her neighbour Mumtaj Begum and Parmila (deorani- sister-in-law) and after collecting total Rs. 1500/- she went to police station where in front of police station, under the peepal tree near a stationary truck the amount was handed over to constable Vijay Singh and thereafter Munna Kabadi was released by both the constables. This was found proved in the preliminary enquiry and Departmental Enquiry No. 17/2001 has been initiated against both the constables. The charges were levelled to the following effect :-
- 1. DINANK 12-10-2000 KO APANI NIRDHARIT DUTY KE PRATI GHOR LAPARVAHI BARATKAR TALAPARA JAKAR MUNNA URF SOORAJ SATNAMI KE GHAR KI TALASHI LEKAR AVAIDHANIK KRITYA KARANA.
- 2. DINANK 12-10-2000 KO MUNNA URF SOORAJ SATNAMI KE SATH MARPEET KAR, THANA CIVIL LINE LAKAR NIYAM VIRUDHA KRITYA KAR GHOR ANUSHASANHEENTA AVAM UCHCHHSHRAGHALATA PRADRASHIT KAR POLICE REGULATION KI KADIKA 64(11) KA ULLANGHAN KARANA.
- 3. MUNNA URF SOORAJ SATNAMI KO THANE MAIN MARPEET KARNE KI DHAMAKI DEKAR USKI PATNI CHANDER BAI KO BHAYAKRANT KAR 2000 RU. KI MANG KARNA AVAM 1500 RU. BATOR RISHWAT PRAPT KAR POLICE REGULATION KE KADIKA 64(2), (10) MAIN ULLEKIHIT SEVA KE SAMANYA SHARTAUN KA ULLANGHAN KAR SWAYAM KO VIBHAG KE AYOGYA SIDDHA KARNA.
10. So far as the complaint made by Baba @ Salim is concerned it has been submitted in the report of S.P. that the matter was got investigated by City Superintendent of Police, Bilaspur. It is stated that during enquiry Rajesh Tiwari @, Babba was searched on various dates but was not found in possession of narcotics drugs. However on 4.6.2001 proceedings under section 151 of IPC were initiated, he was arrested for the offences under section 107 and 116(3) IPC and istgasha No. 56-183/2001 was filed. It is also stated that on the report of Baba Khan @ Salim dt. 12.4.2001, offence under section 324 was registered at Crime No. 191 /2001 against unknown persons. It was enquired into but since accused persons were not known the matter was closed vide F.R. No. 29/2001. With regard to another report dt. 20.4.2001 lodged by Baba Khan it is stated that report was lodged to the effect that on 19.4.2001 at 23.00 hours at Madhya Nagri Chowk accused Basant Sharma inflicted injuries on the person of Baba Khan by means of sharp cutting weapon. On this report offence under section 324 of the IPC was registered at Crime No. 209/2001 and the complainant was sent for medical examination. Since the doctor stated in the medical report that the injuries are self inflicted as such the matter was closed on 11.7.2001 at F.R. No. 6/2001. It is also stated in the report that Baba Khan is a man of criminal activities, proceedings under section 41(2)/110 IPC were started against him on 28.3.2001.
11. In para-4 of the report it is stated that so far as complaint made by Mumtaj Begum to the Collector Bilaspur is concerned it does not appear to have been received in the office of the S.P. In para - 6 it is stated that so far as report dt. 3.6.2002 made by Mumtaj Begum is concerned; the City Superintendent of Police, Bilaspur is enquiring into this report.
12. It is also stated in the report that on the complaints made by Mumtaj Begum, her husband Abdul Latif a Baba Khan and Mohallawal as the matter was investigated and steps were taken time to time. On the report made by Mumtaj Begum dt. 13.10.2000 against two constables and three others, departmental enquiry is going on against Constable No. 209 Sukhchain and Constable No. 877 Vijay Singh. It has been denied that the present applicant Rajesh Kumar @ Ramjan Khan S/o Kanhaiyalal Sharma has been implicated in the crime in question because of any animosity against him. It is also stated that "AAROPI RAJESH KUMAR GUPTA URF RAMJAN KHAN VA SHRI KANHIYA LAL SHARMA SE MADAK PADARTH INJECTION, GOLIYAN TATHIA GANJA BARAMAD KAR THANA CIVIL LINE, VILASHPUR DWARA SAMUCHIT KARYAVAHI KI GAI HAI. JISKI KHAPAT AAROPI DWARA SAMAJ MAIN PRATYAKSHA ATHAVA APRATYAKSHA ROOP SE KI JA TI, JISKA DUSPRABHAV SAMAJ PAR PADANA LAJMI HAI ATAHA UCHIT AADHAR PAR MANANEEYA UCHCHA NYAYALAYA CHHATTISGARH, BILASPUR SE AAROPI RAJESH KUMAR URF RAMJAN KHAN VA SHRI KANHIYALAL SHARMA KO JAMANAT PAR NA CHHODANE HETUANURODH KARANE KA KAST KARE"
13. When the matter came up for hearing after submission of the report of S.P. on 17.7.2002 this Court directed that Shri Vinod Mishra, Station House Officer be also joined as party and copy of the petition and that of report be supplied to him, and in the meanwhile the matter be enquired by the Superintendent of Police or by the Additional Superintendent of Police.
14. On 19.7.2002 the matter again came up for hearing. On that day a controversy was raised that Mumtaj Begum was not related with the applicant as such photographs of Jyoti (wife of the applicant) and Mumtaj Begum (wife of deceased Baba Khan) were directed to be filed. Counsel for the applicant stated that certain typing mistakes have been crept in, therefore he has filed application for correction. The State counsel sought time to file reply to the application. Notice was also directed to be issued to the present City Superintendent of Police and the then City Superintendent of Police. The State was directed to file photocopies of each diary, and photocopies of departmental enquiry proceedings in sealed cover.
15. The matter was heard at length on 2.8.2002 as learned counsel for the State vehemently opposed the amendment applications filed by the applicant, contending that there is no provision in Criminal Procedure Code for making any amendment in the bail application. Ultimately a detailed separate order was passed on 14.8.2002 on the application (I.A. No. 3779/2002) allowing amendment in the bail application. The State was given opportunity to file counter and such other documents and may make consequential amendment if they so desire. Counsel for the parties raised questions mostly academic about applicability or otherwise of Narcotics Drugs and Psychotropic Substance Act.
16. Learned counsel for the applicant submits that the accused applicant has been roped in crime in question by the Civil Lines police and his case is to be seen in the facts and circumstances emerged from complaints made by the Mumtaj Begum, as also residents of the locality and especially because their voice against the police actions and omissions and patronage given to such persons dealing in narcotics drugs, injections and tablets etc. It is also submitted that on the report lodged by Baba @ Abdul Salim for the offence though registered but the challans were not filed and the F.I. Rs. were sent thus the reports made by husband of Mumtaj Begum/Brother-in-law of the applicant (Baba @ Abdul Salim) were not considered properly and ultimately he died in February, 2002.
17. It is also contended by learned counsel for the applicant that aforesaid two constables namely Sukhchain and Vijay had beaten Munna Kabadi and his wife was compelled to arrange for money, they received Rs. 1500/- from his wife, who belongs to Satnami caste as such scope of applicability of provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ought to have been taken into consideration.
18. Learned counsel for the parties submitted that the matter regarding bail for the offences punishable under the provisions of Narcotics Drugs and Psychotropic Substances Act has to be considered under Section 37 in addition to Section 437 and 439 of the Cr. P.C. Section 37 of the Act is quoted below :
- "37. Offences to be cognizable and non-bailable.
- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
- (a) every offence punishable under this Act shall be cognizable;
- (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless -
- (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and
- (ii) Where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
- (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
19. Learned counsel for the applicant relied on a decision in the case of State of M.P. v. Ramkumar 2000(2) JLJ 47, wherein it is held that 'Very sacred duty is entrusted under the Act to the investigating agency while investigating the case under the Act. The entire credibility of the investigating agency shatters when such witnesses facing prosecution under the Act are treated as independent, creditable and reliable witnesses. The investigation must be impartial, fair and strictly in accordance with law. It should not be used as an abuse of the power vested in the officer entrusted to do the investigation". Learned counsel for the applicant submitted that so far as applicant's case is concerned it is a case of false implication. The applicant was taken into custody on 25th March, 2002. His main contention is that even if according to the prosecution case as the sanha indicates that on 27.3.2002 between 13.55 hours to 6 a.m. higher officers were not informed before proceeding for gasti (patrolling). It is also submitted that the information was not sent to the Deputy Superintendent of Police on that very day but it was sent on the next day i.e. 28.3.2002 at 10.00 a.m. and as such it is violation of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which vitiates the entire investigation. Learned counsel for the applicant submitted that the T.I./Station House Officer had full knowledge about the fact that two constables against whom certain complaints were made having been involved in illegal acts even then he did nothing and allowed them to remain in thana (police station), and on the other hand has acted illegally so that they may be absolved in departmental enquiry. It is submitted that one of the constables was member of the patrolling party and the entire case has to be considered keeping in mind these factors.
20. Learned counsel for the applicant further placed reliance on a decision in the case of Rajdeep Singh v. State of Punjab, 1999(3) Crimes 308, wherein it is held that the prosecution has to establish that incriminating injection contained morphine strength of which was more than 0.2%. In the present case the report does not show that 2m.l. Injection contains how much percentage of morphine, contended counsel for the applicant.
21. Learned counsel for the State was specifically asked as to whether apart from the present case there is any antecedent of the present accused applicant. Learned counsel submits that there is no antecedent of the applicant. Learned counsel for the applicant submits that the report of the Superintendent of Police goes to show that near relation's complaint has been prima facie found proved and defence of the applicant is that the police constables were trying to make pressure on the applicant to compel his Babhi (Mumtaj Begum) to withdraw the reports lodged against the police and that is why they implicated the applicant in the crime in question. Learned counsel for the applicant referred to a decision in the case of Tribhuwan Singh v. Bahadur Singh, AIR 1949 Oudh 74 (C. No. 19) wherein it is held that where there is personal enmity between the police officer concerned and the person arrested, a very high standard of evidence would be required to prove that the police officer acted in good faith in arresting the person.
22. Learned counsel for the applicant also referred to a decision in the case of Bidyadhar Dolai v. The State, 1993 Cri. L.J. 260, wherein it is held that "Though the matter had been argued at length on behalf of the State, yet such allegations made by the respective petitioners have not been met nor any records had been produced to rebut the charges levelled. It was as such to be accepted that in fact the arrest of the petitioners had been done in violation of the provisions." And that "if there is no contemporaneous record of the person to be searched of having been so informed of his right, there is an infraction of the provisions of Section 50 and that the search made under Section 43(b) without complying with the provisions of Section 50 and the consequential arrest made there under are illegal actions having the necessary effect of making the arrest unlawful. This according to him, entitles the person so arrested to be enlarged on bail without the fetters of Section 37(b) under which bail is to be refused unless the public prosecutor has been given opportunity to oppose the move for bail and where the application for bail is objected to, the Court further certifies of it being satisfied that there are reasonable grounds of the person being not guilty of the offence and that he is not likely to commit the offence while on bail."
23. Learned counsel for the application also referred to a decision of Patna High Court in the case of Satyendra Sah v. State of Bihar, 1996(1) Crimes 267, wherein it is held that "The Court granting bail under Section 37 (1)(b)(ii) has also to record a satisfaction that the accused was not likely to commit any offence while on bail. In Tribhuwan Kharwar's case (Supra), the Court had expressed its considered opinion that even assuming that it was possible for the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence, the satisfaction of the Court that if the accused is released on bail, he is not likely to commit any offence, cannot be arrived at by a Court of Law while considering a bail application. If such a satisfaction cannot be arrived at while hearing a bail application, there will be no occasion to record any satisfaction after the end of the trial. If the accused at the end of the trial is found not guilty, he would be acquitted of the charges. If found guilty, he would not be entitled to bail as reasonable grounds existed because of the finding that he was guilty and there could be no case of arriving at a satisfaction that reasonable grounds exists for believing that he is not guilty", and that "The provision that the accused will not be released on bail unless the Court was satisfied that he was not likely to commit any offence while on bail, is not a novelty introduced for the first time under NDPS Act. The language of Sub- sections (8) and (9) of Section 20 of TADA is analogous to Section 37 of the NDPS Act and it also provides that no person accused of an offence punishable under the Act, shall be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." Learned counsel for the applicant referring to this citation submits that the prosecution has not shown that there is any such likelihood that the applicant may repeat such offence and that the petitioner is a petty businessman, he runs a pan-shop and there is no material to show the involvement of the applicant in any offence in the past. In the present case complaints have been made by the Mohallawalas of Masanganj area and also Mumtaj Begum who is Bhabhi of the applicant and those complaints have been prima facie found proved during the enquiry made by the City Superintendent of Police, Civil Lines, Bilaspur and on the basis of such enquiry action has been taken against the two constables.
24. Learned counsel for the applicant also referred to a decision in the case of Gopu Dlaiah and others v. State of A.P., 2002(2) Crime 191, wherein it is held that the provisions of Section 37 of NDPS Act have overriding effect over the provisions of Section 439 Cr.P.C. It is however not the intention of legislature that no bail could be granted in such cases. Even in case where two tests incorporated under Section 37(1)(b) of the Act are not satisfied, if accused could be squarely brought under 1st proviso to Section 437(1) Cr.P.C., Court could grant bail. He also referred to a decision in the case of Babu Govekar v. State, 2002(2) Crimes 268, wherein it is held that "Burden on prosecution to establish offence against accused is much stricter than burden on accused to sustain his defence. Accused has to only probablise his defence by preponderance of probabilities. Evidence showed that accused was not apprehended or accosted in manner which was set out in panchnama or deposed by police officials, conviction was liable to be setaside".
25. Learned counsel for the applicant also referred to a decision in the case of Asokan v. State of Kerala, 1998(2) Crimes 123, wherein it is held that the Court can scrutinize records to see that reasonable grounds existed to hold that petitioner was not guilty of such offence. The F.S.L. report in the present case does not mention as to what were the ingredients of the sample examined. Learned counsel also referred to a decision in the case of Hussain v. State of Kerala, 2000(4) 144(SC), 2002(2) Supreme (cr.) 324, 2007(7) Supreme 83.
26. On perusal of the record so far produced and report of Superintendent of Police prima facie it appears that Station House Officer and other officers of the Civil Lines Police Station Bilaspur in spite of having knowledge that two constables named in the reports were involved in illegal activities, and that illegal acts are being committed in their area and complaints thereof have been received by them, they did not take due care and caution to prevent such illegal activities.
27. Having thus considered the facts and circumstances of the case in the opinion of this Court so far as the applicant is concerned he deserves to be enlarged on bail. It is directed that the applicant be enlarged on bail on his furnishing a personal bond in a sum of Rs. 10,000/- with two sureties in the like amount to the satisfaction of the trial Court concerned for his appearance before the said Court on each dates. The bail bond and security bond shall contain photographs and details of moveable and immovable properties. He shall not repeat the offence and shall not indulge in any of the criminal activities. He shall attend all the dates before the trial Court unless exempted.
28. In view of the facts and circumstances which have emerged and the report submitted by the Superintendent of Police some portion of which have been extracted above, learned counsel for the State and learned counsel for the applicant addressed on various dates and submitted that it is a fit case where this Court should exercise its powers under section 482 of the Code of Criminal Procedure. Section 482 of the Cr.P.C. is quoted below :
- "482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
- "POLICE DAL DESH BHAKTI AVAM JANSEVA KA NARA JAGATE HUYE APANI SAKH STHAPIT KARANE KA PRAYAS KARTA HAI PAR PRATIPRARTHIKRAMANK 1, KE AACHARAN SE UNKE DESH BHAKSHI EVAM SWAYAM SEW HONE KA ANUMAN NIKALATA HAI. NISHCHAYA HI YAH SHASAN EVAM UCHCHA POLICE ADHIKARIYON KI CHINTA KA VISHAYA HONA CHAAHIYA". In the said judgment the Court further observed that "YAH NYAYALAYA POLICE ADHIKARIYON MAIN IS PRAKAR KI GHRANIT PRAVRATTIYON SE CHINTIT HAI AUR NYAYOCHIT JANCH DWARA YAH JANANE KA PRAYAS KARANA CHAHEGA KI KYA YAH AAROP VASTVIK HAIN YADI YAH AAROP JANCH MAIN SATYA PAYE JATE HA IN TO NISHCHAYA KI PRATIPRARTHI KRAMANK 1 APANE PAD MAIN BANE RAHANE YOGYA NAHIN HAI "and that "IN GAMBHIR AAROPON KI JANCH NA KARANE KA TATPARYA YAH HOGA KI YADI POLICE ADHIKARI KOI APRADH KARTA HAI TO US PRADESH KI NYAYA VYAVSTHA USE DANDIT KARANE MAIN AKSHAM HAI. ATAH IS PRADESH KI NYAYA VYAVSTHA KI VISHVSNEEYATA HETU BHI IN AAROPON KI JANCH AAVASHYAK HAI PAR IN AAROPON KI JANCH KAREGA KON". The Court pondered over these questions and while considering the inherent powers conferred under Section 482 of the Cr.P.C., was of the opinion that the powers are wide and for making their efficient implementation the Courts are completely free to do whatever is required in the interest of justice. The Court further observed in the said judgment that "TALAB HAJI HUSSAIN - BANAM MADHUKAR P. MANDKAR AIR 1958 SU. KO. 3761 KE NIRNAYA DWARA UCHCHATAM NYAYALAYA NE YAH SPAST KIYA HAI KINYAYALAYON KA PRA MUKH UDDESHYA NYAYA VYAVSTHA AKSHUN RAKHANA HAI AUR UKT UDDESHYA KI POORTI HETU IS UCHCH NYAYALAYA KO SABHI ADHIKAR PRAPT HAIN. UCHCHATAM NYAYALAYA KE ANYA NIRNYA PAMPAPTTHI SHEKHARPPA BANAM - MYSORE RAJYA AIR 1967 SU. KO. 286, AMARCHAND AGARWAL - BANAM - SHANTI BOSE VA ANYA AIR 1973 SU. KU. 799 AVAM SUPERINTENDENT OF LEGAL AFFAIRS - BANAM - MOHAN SINGH VA ANYA, AIR 1975 SU. KO. 1002 I SEE SIDDHANT PAR AADHARIT HAIN. DELHI DEVELOPMENT CORPORATION KE NIRNAYA DWARA YAH SPAST KIYA GAYA HAI KI KISI VYAKTI KO AVAIDHANIK AUR JHOOTHE PRA-KARNO SE BACHANE HETU IN AADHIKARO KA PRAYOG KARNA POORNTAH NYAYO-CHIT HOGA AUR TAB TO YAH AVIVADIT HAI KI JANSADHARAN KO POLICE ADHIKARIYON DWARA JHOOTHE PRAKARANO MAIN FANSAKAR PARESHAN KARNE KE PRAYASON SE IN ADHIKARO KA PRAYOG VIFAL KIYA JATA HAI MOHANLAL PANGASA - BANAM UTTAR PRADESH RAJYA AIR 1964 SU. KO. 1145 KE NIRNAYA DWARA BHI SPAST KAR DIYA GAYA HAI KI JAV KABHI KOI POLICE ADHIKARI APRADH KA ANVESHAN D. PR. S. MAIN VARNIT PRAKRIYA KE VIRUDDH KAR RAHA HO TO ANVESHAN MAIN HASTKSHEP KARNA IS NYAYALAYA KA KARTWYA HAI. ISKE BAVJOOD BHI JAISA KI POORV MAIN HI LIKHA JA CHUKA HAI YAH EK ASADHARAN PRAKRIYA HAI. ATAH IN ADHIKARO KA PRAYOG ASADHARAN PARISTHITIYON MAIN HI KIYA JA SAKEGA. PAR IS NYAYALAYA KE MATANUSAR IS PRAKARAN KI PARISTHITIYAN ASADHARAN HI HAIN. IS PRAKARAN MAIN VARNIT TATTHYON KE ANUSAR PRATIPRARTHI KRAMANK 1A JO EK POLICE ADHIKARI HAI APANE PAD AUR ADHIKARON KA KHULE ROOP MAIN DURUPYOG KAR RAHA HAI AUR USE IS AVAIDH GATIVIDHIYON HETU APANE VIBHAG KE UCHCH ADHIKARION KA SANRAKSHAN PRAPT HAI. YADI IN ASADHARAN PARISTHITIYON MAIN BHI YAH NYAYALAY APANE UPROKT VISHESADHIKARON KA PRAYOG NAHIN KAREGA TO LOGON KA VIDHI AUR NYAYA DONO PAR SE VISHWAS UTH JAVEGA. FALSWAROOPISNYAYALAYA DWARA ESI KOI ANTARIM VYAVSTHA KIYA JANA AVASHYAK HAI JISASE US KSHETRA KE NAGARIKON KO TATKAL RAHAT MIL SAKE AUR PRATIPRARTHI KRAMANK 1 DWARA AVAIDH KARYON KI PUNRAVRATTI NA HO. "
31. Learned counsel for the parties addressed regarding enquiry to be conducted under the facts and circumstances of the case. This is reflected in the orderdated 11.7.2002 and arguments have been advanced by the counsel for the parties. Learned counsel for the applicant referred to a decision in the case of Tehsildar Singh v. State of M.P., 2 2001(3) MPHT 161, where the Court was of the opinion that to avoid any miscarriage of justice the matter needs thorough probe and therefore the matter was directed to be enquired into by the C.B.I. afresh, in that matter. Counsel for the petitioner submitted that in the present case enquiry be conducted by the C.B.I. or any other independent agency. The report dt. 14th July, 2002 submitted by the Superintendent of Police shows that the allegations made in the complaint dt. 13.10.2000 have been substantiated in the preliminary enquiry and on that basis departmental proceedings have been started. Dr. Shukla on the other hand submitted that the report of S.P. shows that the police itself made enquiry and now after the facts, which have emerged from the record, the S.P. has taken the matter in right perspective. In the opinion of this Court the matter needs further consideration and as such in the opinion of this Court it is just and proper that the Secretary (Home), Director General of Police and Inspector General of Police may also be noticed and heard in the matter if they so desire. Learned counsel appearing for the State to forward copy of this order and all other documents to the Secretary (Home), Director General of Police and Inspector General of Police and instructions may be obtained so that if they so desire may be heard on all the aspects of the matter. The case be listed after two months on a date to be fixed by the office.
32. Before parting, this Court would like to make it clear that the observations made in this order are prima facie on the basis of the material placed before this Court in the record of the case and should not be taken as conclusive findings one way or other so far conduct of the police personnel and officers are concerned.
33. Certified copy as per Rules.
34. Copy of this order be supplied to the State counsel who shall forward it to the Secretary (Home), Director General of Police and Inspector General of Police and all concerned.
35. A copy of this order be also sent to the Superintendent of Police.