Dismissed

Rajesh Kumar Sahu v. State of Chhattisgarh

Chhattisgarh HC15 Sept 2023MCRC/6483/2023

Case brief

AI extract

What is this about?

In MCRC No. 6483 of 2023, the High Court of Chhattisgarh rejected a second bail application filed by two accused transported with seized ganja on a significant bail application under Section 439 Cr.P.C. for Section 20(b) of the NDPS Act, citing mandatory strictness under Section 37 of the NDPS Act despite claims of hostile witnesses.

What did the court decide?

Bail application rejected; accused not entitled to release on bail.

Rajesh Kumar Sahu Vs State of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MCRC No. 6483 of 2023

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Rajesh Kumar Sahu S/o Dinesh Kumar Sahu Aged About 20 Years R/o Village Ahilda, Thana Kasdol District Balodabazar (C.G.)

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Rajaram Sahu S/o Biran Sahu Aged About 27 Years R/o Village Mekari, Thana Pamgarh District Janjgir-Champa (C.G.)

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--- Applicants.

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Singhoda, District Mahasamund (C.G.) --- Respondent.

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For Applicant : Mr. H.A.P.S. Bhatia on behalf of Mr. Vikash Pradhan, Adv. For State : Ms. Astha Shukla, GA.

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Hon'ble Shri Deepak Kumar Tiwari, J

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Order On Board

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15.09.2023

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This second application under Section 439 Cr.P.C. for grant of bail has been filed by the accused/applicant who has been arrested on 25.08.2022 in connection with Crime No.66/2022 registered at Police Station Singhoda, Mahasamund for the offence under Section 20 (b) of the Narcotic Drugs Psychotropic Substance Act.

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It is pertinent to mention here that earlier application filed by the applicant was dismissed as withdrawn with liberty to revive the same after examination of the seizure witnesses vide order dated 19.06.2023 passed in MCRC No.2789/2023.

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As per prosecution story, acting upon a information received by the informant on 25.08.2022, the police has seized 25 KG Ganja from the illicit possession of the accused/applicant which he was transporting through the Car bearing No. CG 04 HA 2686.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated. He further submits that prosecution has failed to establish that said contraband was seized from the exclusive possession of the applicant. He also submits that seizure witnesses have been examined and they have turned hostile. He further submits that the applicant is languishing in jail since 25.08.2022 and conclusion of the trial is likely to take considerable time. In support of his contention and bail application counsel has placed reliance in the matters of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of CG reported in AIR 2022 SC 4051 and further in the decision of Hon’ble Supreme in the matter of Allepu Ramesh Vs. the State Of CG passed in SLP (Criminal) No.2500/2023. He submits that considering all these aspects, the applicant may be released on bail.

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On the other hand, learned State Counsel opposes the prayer for bail and submits that due procedure has been complied with during the course of investigation by the I.O. and lacunae, if any, in investigation shall be considered during the trial. He also submits that ground raised by the applicant that seizure witnesses have been turned hostile and retracted during the

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examination are not a strong ground for taking benefit of bail as the manner in which contraband has been recovered, there is no possibility of false implication and further Section 37 of the NDPS Act attracts in the matter. Therefore, the applicant is not entitled for bail.

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Heard learned counsel for the parties and perused the documents placed in the bail application.

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In the matter of State of Kerala Vs. Rajesh¹ , the law relating to exercise of bail application in the offences under the NDPS Act has been dealt and the following was observed at para-18:-

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18 . This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in the offences under the NDPS Act. In Union of India v. Ram Samujh (1999) 9 SCC 429 , 1999 SCC (Cri) 1522, it has been elaborated as under:

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“7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a 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 the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. State (UT of Goa) (1990) 1 SCC 95 , 1990 SCC (Cri) 65 as under: (SCC p. 104, para 24)

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‘24. With deep concern, we may point out that the organised activities of the underworld and the

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1 (2020) 12 SCC 122

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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 proportions 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, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.’

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

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

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(ii) that he is not likely to commit any offence while on bail

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are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.”

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In the matter of Narcotics Control Bureau Vs. Mohit

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Aggarwal² , it was held thus:-

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“…………...The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”

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2 2022 SCC OnLine SC 891

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In the matter of Rizwan Khan Vs. State of Chhattisgarh³ , a principle has been reiterated that the independent witnesses have turned hostile, when there is reliable official witness is no ground for acquittal under the NDPS Act. It was materially observed at para-12 which reads thus:-

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“ 12 . It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar (2018) 13 SCC 808 , (2019) 1 SCC (Cri) 420].”

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In view of aforesaid observations made by the Hon’ble Supreme and considering the mode and manner in which huge of quantity of contraband was transported and seized, this Court is of the opinion that Section 37 of the NDPS Act attracts in the matter and twin conditions under Section 37 of the NDPS Act has also not been complied with.

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For the foregoing reasons, the bail application is rejected .

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It is made clear that the observations made here-in-above shall not be construed as an opinion on the merits of the case and the trial Court shall decide the case, on its own merits, in accordance with law and in expeditious manner.

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Sd/(Deepak Kumar Tiwari) Judge

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Ajay

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3 (2020) 9 SCC 627

Rajesh Kumar Sahu v. State of Chhattisgarh

Case brief

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Rajesh Kumar Sahu v. State of Chhattisgarh

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