Dismissed

Jaheer @ Langda v. State of U.P.

Allahabad HC14 Dec 2020BAIL/43453/2020

Case brief

AI extract

What is this about?

The court rejected a bail application under the NDPS Act. Despite claims of false implication and lack of Section 50 compliance, the court held that the seizure of 80kg of narcotic powder constituted commercial quantity. The applicant, with a significant criminal history, failed to establish reasonable grounds for believing he was innocent or unlikely to re-offend.

What did the court decide?

Bail application rejected. Applicant must remain in custody during trial.

Jaheer @ Langda Vs State of U.P. — Narcotics (NDPS) | Allahabad HC (2020)

¶1

Court No. - 10

¶2

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43453 of 2020

¶3

Applicant :- Jaheer @ Langda Opposite Party :- State of U.P. Counsel for Applicant :- Atul Kumar Counsel for Opposite Party :- G.A.

¶4

Hon'ble Rohit Ranjan Agarwal,J.

¶5

Heard Sri Atul Kumar, learned counsel for the applicant and Sri M.K. Dwivedi, learned AGA for the State.

¶6

By means of this application, the applicant Jaheer @ Langda, who is involved in Case Crime No. 626 of 2020, under Sections 8/15 of Narcotics Drugs & Psychotropic Substances Act, 1985, Police Station Kotwali Nagar, District Muzaffar Nagar, is seeking enlargement on bail during the trial.

¶7

It is contended that the applicant has been falsely implicated in the present case. As per the prosecution story 80 Kg contraband (Doda Powder) has been recovered from the joint possession of the accused Wajid @ Khanna, Shahjad and the applicant Jaheer @ Langda . It is further contended that the recovery is from the joint possession while as per the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter referred as the ‘Act’) small quantity of Doda Powder is one Kg while commercial quantity is 50 Kg. It is further stated that the applicant has not been arrested from the spot and the recovery shown has been planted by the police. It is also contended that no compliance of Sections 50 and 42 of the Act was made. Parity has been claimed on the basis of the bail granted to the other coaccused Wajid @ Khanna on 02.12.2020 in Criminal Misc. Bail Application No. 42777 of 2020.

¶8

On the other hand, learned AGA Sri Dwivedi pointed out that the recovery made from the applicant was above the commercial quantity and all the three accused were carrying contraband in a van which was intercepted by

¶9

the police party and was recovered from the joint possession. It is further contended that the applicant has a criminal history of eleven criminal cases being Case Crime No. 713 of 2012 under Sections 452/323/504/506 IPC, Case Crime No. 95 of 2013 under Section 110-G Cr.P.C., Case Crime No. 1058 of 2013 under Sections 394/307/411/120B IPC, Case Crime No. 1094 of 2013 Section 3/25 of Arms Act, Case Crime No. 365 of 2016 under Section 380 IPC, Case Crime No. 833 of 2017 under Sections 323/324/307/504/506 IPC, Case Crime No. 1139 of 2017 under Section 110G Cr.P.C., Case Crime No. 811 of 2019 under Sections 307/336/504 IPC, Case Crime No. 829 of 2019 under Section 3/25/27 Arms Act, Case Crime No. 626 of 2020 under Section 8/15 NDPS Act and Case Crime No. 1094 of 2013 under Section 3/25 Arms Act, all cases relates to Police Station Kotwali, District Muzaffarnagar. It is further contended that compliance of Section 50 of the Act was to be made when the search was made from the person of the accused while present recovery has been made from the vehicle in question.

¶10

I have heard learned counsel for the parties and perused the material on record.

¶11

Section 37 of the Act governed the field for grant of bail in offences which are cognizable and non-bailable. Section 37 is extracted here as under;

¶12

"37.Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

¶13

(a) every offence punishable under this Act shall be cognizable;

¶14

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-

¶15

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

¶16

(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.

¶17

(2) The limitations on granting of bail specified in clause (b) of subsection (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."

¶18

2 of 7

¶19

According to the aforesaid provisions the Court before granting bail has to record reason that there are reasonable ground that the applicant is not guilty of such offence and furthermore that he is not likely to commit any offence while on bail. Apex Court while dealing with aforesaid provision in case of Union of India Vs. Ram Samujh, 1999 Supp. (2) SCR 76 , held as under;

¶20

“ 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered and followed. It should be borne in 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 in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and deadly impact on the society; they are a 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. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary, Union Territory of Goa. [1990] 1 SCC 95 as under:

¶21

"With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportion in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in the wisdom has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine,"

¶22

8. To check the menace of dangerous drugs flooding the market, the Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless mandatory conditions provided in Section 37, namely,

¶23

(i) there are reasonable grounds for believing that accused is not guilty of such offence; and

¶24

(ii) that he is not likely to commit while on bail.”

¶25

In Union of India Vs. Shiv Shankar Kesari, 2007 (59) ACC 778 , Apex Court elaborated and explained the conditions for granting of bail as provided under Section 37 of the Act. Relevant paragraph Nos. 6 and 7 are extracted here as under;

¶26

3 of 7

¶27

“ 6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.

¶28

7. The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.”

¶29

In Union of India Vs. Rattan Mallik @ Habul, (2009) 1 Supreme Court Cases (Cri) 831 , Apex Court observed as under;

¶30

“ 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of `not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.”

¶31

In recent decision of Apex Court in State of Kerala Etc. Vs. Rajesh Etc. AIR 2020 Supreme Court 721 , Apex Court considered the scope of Section 37 and relying upon earlier decision in Ram Samujh (Supra) held as under;

¶32

“20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

¶33

The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such

¶34

4 of 7

¶35

facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.”

¶36

Supreme Court while dealing with the question of possession and application of Section 50 in case of Megh Singh Vs. State of Punjab, 2003 CRI. L.J. 4329 , held that word ‘possession’ includes conscious possession. Further Section 50 applies in case of personal search of a person and it does not extend to search of a vehicle or container or a bag or premises. Relevant paragraph nos. 9 to 13 and 16 are extracted here as under;

¶37

“ 9. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.

¶38

10. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.

¶39

11. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.

¶40

12. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).

¶41

13. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6) SCALE 483).

¶42

16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT1999 (8) SC 293), The State of Punjab v. Baldev Singh (JT1999 (4) SC 595), Gurbax Singh v. State of Haryana(2001(3) SCC 28). The language of Section 50 is implicitly clear that the search

¶43

5 of 7

¶44

has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance.”

¶45

While dealing with the provision of Section 50 of the Act, Apex Court in case of Dehal Singh Vs. State of Himachal Pradesh, 2011 (72) ACC 661 , held that Section 50 relates to the search of a person and not of the vehicle and thus there was no requirement for informing the applicant of the right to be searched in presence of a gazetted officer of Magistrate.

¶46

Reliance placed by learned counsel for the applicant upon decision of Toofan Singh Vs. State of Tamilnadu rendered by the Apex Court in Criminal Appeal No. 152 of 2013 is not applicable in the present case as it relates to the statement recorded under Section 67 of the Act which cannot be used as a confessional statement in the trial of an offence under the Act, while present proceedings are for enlarging the applicant on bail.

¶47

Coming to the argument raised by learned counsel for the applicant that other co-accused Wajid @ Khanna has been enlarged on bail by a coordinate Bench of this Court and parity has been claimed, the said parity claimed by him is distinguishable in the present case as there was no criminal history of the co-accused while applicant has long criminal history of eleven cases.

¶48

The contention of learned counsel for the applicant to the extent that contraband has been planted by the police cannot be accepted as the police cannot implant such huge quantity of contraband. Had it been a case of one or two kilograms the said argument could have been accepted but in the present case there is joint recovery of 80 Kg of contraband, which is above the commercial quantity.

¶49

Moreover, the contraband (Doda Powder) has been recovered from the joint possession of the accused and is above the commercial quantity and Section

¶50

6 of 7

¶51

37 of the Act is attracted and in view of law laid down by Apex Court the applicant has failed to satisfy that there are reasonable ground that applicant is prima facie not guilty of such offence and he will not commit any offence while on bail. As huge quantity of contraband (Doda Powder) has been recovered from joint possession no case for bail is made out.

¶52

Bail application stands rejected.

¶53

[Rohit Ranjan Agarwal,J.]

¶54

Order Date :- 14.12.2020 Shekhar

¶55

Digitally signed by Justice Justice Rohit Rohit Ranjan Agarwal Ranjan Agarwal Date: 2020.12.18 11:56:07 +05'30'

¶56

7 of 7

Jaheer @ Langda v. State of U.P.

Case brief

What is this about?

What did the court decide?

Jaheer @ Langda v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nadeem Vs State of U.P.

Anil Kumar Sharma Vs Sanjay Jain @ Sanjay Kumar Jain

Anand Vs State of U.P.

Jaishanker Pandey and Another Vs State of U.P. and Another

Aamir Vs State of U.P.

Manawar Alias Baga Vs State of U.P.