Chambers of Mr. Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
While denying bail to an accused under the NDPS Act, the Gujarat High Court has clarified that the Narcotics Control Bureau (NCB) does not qualify as a police station, and thus an accused cannot seek bail on the basis that the agency failed to document confidential information in the general diary.
Full Judgment
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11079 of 2023
======================================
MUHAMMAD TAYYAB SHAIKH S/O MUHAMMAD NIHAL SHAIKH
Versus
UNION OF INDIA
======================================
Appearance:
MR RAJ K. AWASTHI for MR A.R.KADRI(7330) for the Applicant(s)
No.1
for the Respondent(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 1
MS KRINA P. CALLA, APP for the Respondent(s) No. 2
======================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/09/2023
ORAL ORDER
1. This application is filed under Section 439 of the Code of
Criminal Procedure, 1973, by the applicant, who is an accused
of an offence under Section 8(c), 20(b)(ii)(C) read with Section
29 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as “the Act”).
2. Narcotics Control Bureau, Ahmedabad Unit, based on
prior information, carried out a search near Adalaj Toll Plaza in
a Traveller Bus coming from Delhi going to Mumbai bearing
registration No. RJ-19-PB-4007, which led to seizure of 6.359
Kgs of Charas which is commercial quantity from the joint
possession of present applicant along with other co-accused found from a red coloured bag, identification mark is also
mentioned in the panchanama. While both were found
travelling in the bus, came to be arrested after accused failed
to account for the contraband found from their possession.
Pursuant thereto, an investigation is carried out by the
Narcotics Control Bureau Officers and complaint came to be
filed against both of them. The said complaint came to be
registered as NDPS Sessions Case No. 8 of 2022 pending in the
District and Sessions Court, Gandhinagar.
3. Heard Mr. Raj K. Awasthi, learned advocate for
Mr. A.R.Kadri, learned advocate for the applicant.
3.1 According to his submission, the seizure panchanama,
whereby commercial quantity of Charas found, lacks in so
many details, and therefore, it cannot be presumed that
Charas is found from the possession of the accused. He has
also submitted that nothing is mentioned in the panchanama
as to in which berth or seat number the accused were
travelling, from where the contraband is seized, and no option
is given to them to have their search in presence of any
Gazetted Officer, and therefore, seizure panchanama cannot
be relied on for the purpose of even denying bail to the present
applicant. 3.2 He has further submitted that the Narcotics Control
Bureau Officers are supposed to record entry in general diary /
station diary / daily diary when they receive an information in
respect of cognizable offence received in a police station, as
mentioned in para 120.8 in the case of Lalita Kumari v.
Govt. of U.P. & Ors., reported in (2014) 2 SCC 1.
3.3 He has further submitted that identification of the
accused through photographs, that too, after a prolonged
period, loses its significance and it is of no use.
3.4 He has further submitted that statement of the driver
and conductor of the bus, wherein the accused were travelling,
came to be recorded nearly after 4 months to the date of
incident, and therefore, on which berth or seat they were
travelling mentioned by them is of no use.
3.5 He has further submitted that even travel tickets are
also not seized by the officer concerned, which creates doubt
about the genuineness of the prosecution itself. Therefore, he
has submitted that the accused deserves to be enlarged on
bail pending trial.
4. As against that, Mr. Kartik V. Pandya, learned Standing
Counsel for Narcotics Control Bureau, submitted that after following every required procedure under "the Act", the
prosecution is launched against the applicant and co-accused.
4.1 He has further submitted that the prior information
received has been reduced into writing and it is also forwarded
to the higher officer, as coming out from the record itself.
4.2 He has further submitted that since there was no search
of a person, as contraband found from bag of the accused,
there is no requirement of following even Section 50 of "the
Act".
4.3 He has further submitted that though some minute
details may have been missing to be recorded in the
panchnama, on that ground, seizure of commercial quantity of
Charas cannot be thrown overboard.
4.4 He has further submitted that not only the applicant is
having criminal antecedent of the very offence under "the Act",
he is convicted in the offence and has undergone sentence
also.
4.5 He has further submitted that the said conviction can be
termed as a previous conviction under “the Act”, and
therefore, provision of enhanced penalty can also be invoked
by the Narcotics Control Bureau, and therefore, the applicant – accused, who is found in possession of more than commercial
quantity of Charas, may not be enlarged on bail.
5. Mr. Raj K. Awasthi, learned advocate for Mr. A.R.Kadri,
learned advocate for the applicant, in reply, clarified that
earlier conviction of the applicant under the provisions of “the
Act” is for an offence under Section 8(a) and 27 of “the Act”,
for which he confessed to the crime and is sentenced till rising
of the Court and a fine of Rs. 1,000/- was imposed upon him.
Therefore, he has submitted that it is not an offence of
possessing commercial quantity on previous occasion, and
therefore, it may not be considered as a previous conviction of
the applicant so as to impose enhanced penalty.
6. Having heard the learned advocates for the appearing
parties and going through the contents of the complaint as
also the documents produced along with the application and
additional documents furnished by the learned advocate for
the applicant, it appears that seizure of 6.359 Kgs of Charas
found from a bag carried by applicant along with co-accused in
a joint possession, as clothes of both of them found from the
said bag containing commercial quantity of Charas, as
revealed from the panchnama itself, it cannot be said that applicant is an innocent person and he is not guilty of the
offence under “the Act”.
6.1 If seat number or berth number, where applicant and
other co-accused were travelling, is not mentioned in the
panchanama, it will not render presumption of a commercial
quantity of Charas from the joint possession of both the
accused invalid, which is seized in presence of two panchas.
However, what is required to be stated in the panchanama and
whether that is followed during seizure or not, would be
determined on conclusion of full-fledged trial when evidence is
led before the Court where the applicant – accused may cross-
examine the panch-witnesses for any shortcomings recorded
the panchnama, if at all it is there.
6.2 The argument that identification by photograph of the
accused, in absence of any test-identification parade, is of no
use. He has submitted that there is no test-identification
parade conducted and when there is identification of the
accused through photograph after 4 months of the incident, it
is of no use. However, the identity of the accused is not in
dispute/question in the present case for the simple reason that
he was arrested on the spot in possession of commercial quantity of Charas, in presence of two panchas. Therefore, his
identity was never in dispute. The identification conducted
through photograph after 4 months is for the purpose of
corroboration only and it is not impermissible.
6.3 So far as argument based on para 120.8 of the judgment
of Supreme Court in the case of Lalita Kumari (Supra) that
prior/secret information should have been recorded either in
general diary/station diary/daily diary, is again misconceived
as Narcotics Control Bureau is not a police station so as to
have those diaries for recording thereof, and therefore,
information relating to cognizable offence to be recorded in the
police station will not be of any use in support of the
application for bail. The further submission that
outward/inward number is also not mentioned in the
prior/secret information, it is on a loose piece of paper and
having even no seal of the higher officer, is also of no use as
law requires recording of a secret/prior information in writing
and superior officer is to be informed under the provisions of
“the Act”. Since it is already complied with, whether it bears
outward or inward number or not, all these questions are
required to be determined at the time of trial so as to render
the whole procedure invalid, and which has no bearing on the main issue of an offence being committed by the accused
possessing commercial quantity of Charas.
6.4 Over and above that, there is a presumption of ‘culpable
mental state’, when the accused is found in possession of
commercial quantity of Charas under Section 35 of “the Act”,
coupled with the ‘presumption from possession of illicit article’,
as provided under Section 54 of “the Act”. Under Section 54 of
“the Act”, burden is on the accused to rebut the presumption
from possession of illicit article.
6.5 When commercial quantity of Charas is found from the
possession of the applicant, of course joint possession with co-
accused, as referred to hereinabove, I am unable to record
conclusion that he is not guilty of an offence under “the Act”
and will not commit any offence if released on bail.
7. In view thereof, I am unable to exercise discretion
releasing the applicant on bail and it is hereby rejected.
