Yosimeir and ors. Vs. State of H.P. - Court Judgment

Excerpt:
- orderm.r. verma, j.1. this is an application under section 439, cr. p.c. moved by the accused-petitioners (hereinafter referred to as 'the accused') for grant of bail in case fir no. 113/99 under section 20 of the narcotic drugs and psychotropic substances act, 1985 (hereinafter referred to as 'the act') registered against them at police station, manali. their case, in brief, is that they had come to kullu manali after hiring the services of one nikolie singh, driver, resident of goa and his vehicle at gangotri. on reaching manali, accused along with said nikolie singh stayed in a guest house. on 27-5-1999, accused-petitioner no. 1 found that his cash worth rs. 50,000/- (indian currency) was missing and at the same time said nikolie singh was also found missing along with his vehicle. the accused went to the police station and lodged an fir under section 380, i.p.c. against said nikolie singh who was subsequently arrested by the police near bajora check post and is presently in judicial custody. it is further the case of the accused that the incriminating articles (charas) allegedly recovered from the room wherein the accused were residing, belonged to said nikolie singh who had planted this charas only to create a false case against the applicants. the accused, thus, claim to be innocent and request for their release on bail subject to the conditions which may be imposed by the court to ensure their presence at the trial. a similar application moved by the accused before the learned sessions judge, kullu stood dismissed vide order dated june 17, 1999. hence the present application.2. to appreciate the matter, it is expedient to briefly set out as to what the case of the prosecution against the accused persons is. the prosecution claims that on 28-5-1999 at 6.15 p.m., when s. i. rajiv attri of police station, manali along with a few other constables was present at manali on patrol duty, a secret information was received that four, israelies staying in tara guest house, manali, were dealing in sale and purchase of charas and they had also kept charas in their possession. an information in this regard was sent by the said s. i. to the deputy superintendent of police, manali and also sent a ruqua to the police station based on the said information for registration of a case. then the said sub-inspector constituted a raiding party in which he joined serv dayal and amar chand and conducted the search of room no. 1 of tara guest house occupied by the accused. on search, allegedly carried out in accordance with law, 200 grams of charas was recovered from within a wooden almirah in the room occupied by the accused which was taken in possession and was further dealt with according to the relevant procedure. the case of the prosecution, thus, is that the accused were dealing in sale and purchase of charas and on search of the premises occupied by them, 200 grams of charas was found therein.3. it may be pointed out at the very outset that under section 439, cr. p.c. this court has very wide powers to order release of the accused on bail. however, so far as an offence punishable under the act is concerned, the statute has placed certain limitations on the powers of the court to grant bail to the accused. the relevant provisions are contained in section 37 of the act, which read as follows :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 opposes 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.4. the hon'ble supreme court in narcotics control bureau v. kishan lal air 1991 sc 558 : (1991 cri lj 654) while examining the scope of the powers of the high court to grant bail under section 439, cr. p.c. to a person accused of the commission of an offence punishable under the act held as follows :.we hold that the powers of the high court to grant bail under section 439 are subject to the limitations contained in the amended section 37 of the ndps act and the restrictions placed on the powers of the court under the said section are applicable to the high court also in the matter of granting bail.in view of the provisions of section 37 of the act, referred to above and the decision of the hon'ble supreme court (supra), a person accused of an offence punishable under the act can be released on bail if the following conditions are satisfied :(1) that the offence allegedly committed by the accused is punishable with imprisonment for a term of less than 5 years;(2) in case the offence is punishable for a term of imprisonment of 5 years or more, then such release can be ordered :(i) if the public prosecutor has been given an opportunity to oppose the bail application, and(ii) in the event of the public prosecutor opposing the bail application; the court is satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged to have been committed by him and that he is not likely to commit any offence while on bail.5. in this case, the accused are alleged to have committed an offence punishable under section 20 of the act for which the punishment provided for is for a minimum term of 10 years. the prosecution has the opportunity through the learned addl. advocate general to oppose the bail application and he did oppose it. thus, the release of the accused on bail can be ordered only if it is found that there are reasonable grounds for believing that the accused are not guilty of the offence alleged to have been committed by them and they are not likely to commit any offence while on bail.6. the learned counsel for the accused had submitted that there are reasonable grounds to believe that the accused are not guilty of the offence alleged to have been committed by them and being students, they are not likely to be involved in the commission of offences even in future. the emphasis has been laid by the learned counsel on the admitted fact of one nikolie singh having stayed in the guest house along with the accused and subsequently a case having been registered against him for committing theft of a sum of rs. 50,000/- belonging to accused-applicant no. 1 and his admitted arrest by the police. on the strength of these admitted facts, the precise submission of the learned counsel for the accused is that the charas recovered from the room wherein accused were staying belonged to nikolie singh and he had planted this charas to create a false case against the applicants-accused. it has been so averred even in para 3 of the application.7. prima facie, at this stage, this plea raised for the accused cannot lead to the belief that the accused are not guilty of the commission of the offence alleged to have been committed by them, primarily for the reason that in case the charas belonged to nikolie singh and it was known to the accused as is their case now, they ought to have reported the matter to the police. no reason is disclosed that said nikolie singh had the intention to involve the accused in the commission of a false case for any reason till a case' was got registered against him by the accused under section 380, i.p.c. however, after the registration of such a case, nikolie singh had no occasion to plant the charas in the room. secondly, if the charas belonged to said nikolie singh, prima facie nothing prevented him from carrying it with him when he left the hotel along with the allegedly stolen amount of rs. 50,000/-. lastly, it is admitted case that the charas was recovered from the room at a point of time when it was in occupation of the accused persons. even if they are students as alleged, that does not raise any inference or presumption that they are not prima facie guilty of the commission of the offence alleged to have been committed by them. the plea taken by the accused, thus, is a matter of proof and not of being believed on the bare assertion and averment.8. in view of the above discussion, i am of the considered view that the accused are not entitled to be released on bail. resultantly, this application is dismissed.9. the observations made hereinabove are strictly for the purpose of disposal of this application and nothing contained therein shall be construed as an expression of opinion on any point involved in the case on merits.

Judgment:
ORDER

M.R. Verma, J.

1. This is an application under Section 439, Cr. P.C. moved by the accused-petitioners (hereinafter referred to as 'the accused') for grant of bail in case FIR No. 113/99 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') registered against them at Police Station, Manali. Their case, in brief, is that they had come to Kullu Manali after hiring the services of one Nikolie Singh, Driver, resident of Goa and his vehicle at Gangotri. On reaching Manali, accused along with said Nikolie Singh stayed in a Guest House. On 27-5-1999, accused-petitioner No. 1 found that his cash worth Rs. 50,000/- (Indian currency) was missing and at the same time said Nikolie Singh was also found missing along with his vehicle. The accused went to the police station and lodged an FIR under Section 380, I.P.C. against said Nikolie Singh who was subsequently arrested by the police near Bajora Check Post and is presently in judicial custody. It is further the case of the accused that the incriminating articles (charas) allegedly recovered from the room wherein the accused were residing, belonged to said Nikolie Singh who had planted this charas only to create a false case against the applicants. The accused, thus, claim to be innocent and request for their release on bail subject to the conditions which may be imposed by the Court to ensure their presence at the trial. A similar application moved by the accused before the learned Sessions Judge, Kullu stood dismissed vide order dated June 17, 1999. Hence the present application.

2. To appreciate the matter, it is expedient to briefly set out as to what the case of the prosecution against the accused persons is. The prosecution claims that on 28-5-1999 at 6.15 p.m., when S. I. Rajiv Attri of Police Station, Manali along with a few other constables was present at Manali on patrol duty, a secret information was received that four, Israelies staying in Tara Guest House, Manali, were dealing in sale and purchase of charas and they had also kept charas in their possession. An information in this regard was sent by the said S. I. to the Deputy Superintendent of Police, Manali and also sent a ruqua to the Police Station based on the said information for registration of a case. Then the said Sub-Inspector constituted a raiding party in which he joined Serv Dayal and Amar Chand and conducted the search of room No. 1 of Tara Guest House occupied by the accused. On search, allegedly carried out in accordance with law, 200 grams of charas was recovered from within a wooden almirah in the room occupied by the accused which was taken in possession and was further dealt with according to the relevant procedure. The case of the prosecution, thus, is that the accused were dealing in sale and purchase of charas and on search of the premises occupied by them, 200 grams of charas was found therein.

3. It may be pointed out at the very outset that under Section 439, Cr. P.C. this Court has very wide powers to order release of the accused on bail. However, so far as an offence punishable under the Act is concerned, the Statute has placed certain limitations on the powers of the Court to grant bail to the accused. The relevant provisions are contained in Section 37 of the Act, which read as follows :

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 opposes 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.

4. The Hon'ble Supreme Court in Narcotics Control Bureau v. Kishan Lal AIR 1991 SC 558 : (1991 Cri LJ 654) while examining the scope of the powers of the High Court to grant bail under Section 439, Cr. P.C. to a person accused of the commission of an offence punishable under the Act held as follows :.we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.

In view of the provisions of Section 37 of the Act, referred to above and the decision of the Hon'ble Supreme Court (supra), a person accused of an offence punishable under the Act can be released on bail if the following conditions are satisfied :

(1) that the offence allegedly committed by the accused is punishable with imprisonment for a term of less than 5 years;

(2) in case the offence is punishable for a term of imprisonment of 5 years or more, then such release can be ordered :

(i) if the Public Prosecutor has been given an opportunity to oppose the bail application, and

(ii) in the event of the Public Prosecutor opposing the bail application; the Court is satisfied that there are reasonable grounds to believe that the accused is not guilty of the offence alleged to have been committed by him and that he is not likely to commit any offence while on bail.

5. In this case, the accused are alleged to have committed an offence punishable under Section 20 of the Act for which the punishment provided for is for a minimum term of 10 years. The prosecution has the opportunity through the learned Addl. Advocate General to oppose the bail application and he did oppose it. Thus, the release of the accused on bail can be ordered only if it is found that there are reasonable grounds for believing that the accused are not guilty of the offence alleged to have been committed by them and they are not likely to commit any offence while on bail.

6. The learned counsel for the accused had submitted that there are reasonable grounds to believe that the accused are not guilty of the offence alleged to have been committed by them and being students, they are not likely to be involved in the commission of offences even in future. The emphasis has been laid by the learned counsel on the admitted fact of one Nikolie Singh having stayed in the Guest House along with the accused and subsequently a case having been registered against him for committing theft of a sum of Rs. 50,000/- belonging to accused-applicant No. 1 and his admitted arrest by the police. On the strength of these admitted facts, the precise submission of the learned counsel for the accused is that the charas recovered from the room wherein accused were staying belonged to Nikolie Singh and he had planted this charas to create a false case against the applicants-accused. It has been so averred even in para 3 of the application.

7. Prima facie, at this stage, this plea raised for the accused cannot lead to the belief that the accused are not guilty of the commission of the offence alleged to have been committed by them, primarily for the reason that in case the charas belonged to Nikolie Singh and it was known to the accused as is their case now, they ought to have reported the matter to the police. No reason is disclosed that said Nikolie Singh had the intention to involve the accused in the commission of a false case for any reason till a case' was got registered against him by the accused under Section 380, I.P.C. However, after the registration of such a case, Nikolie Singh had no occasion to plant the charas in the room. Secondly, if the charas belonged to said Nikolie Singh, prima facie nothing prevented him from carrying it with him when he left the hotel along with the allegedly stolen amount of Rs. 50,000/-. Lastly, it is admitted case that the charas was recovered from the room at a point of time when it was in occupation of the accused persons. Even if they are students as alleged, that does not raise any inference or presumption that they are not prima facie guilty of the commission of the offence alleged to have been committed by them. The plea taken by the accused, thus, is a matter of proof and not of being believed on the bare assertion and averment.

8. In view of the above discussion, I am of the considered view that the accused are not entitled to be released on bail. Resultantly, this application is dismissed.

9. The observations made hereinabove are strictly for the purpose of disposal of this application and nothing contained therein shall be construed as an expression of opinion on any point involved in the case on merits.