Alok Kumar Verma DECISION
Alok Kumar Verma, J.
1. This bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with FIR No. 0162 of 2019, registered with Police Station Prem Nagar, District Dehradun, for the offence punishable under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act, 1985').
2. Facts, to the limited extent necessary, are that on 17.08.2019, when the informant Navneet Singh Bhandari, Sub Inspector, along with other police personnel were on routine checking in the area of Police Station Prem Nagar, District Dehradun, received a secret information in respect of a person carrying a bag, who was coming from Selakui. In spite of an endeavour, no independent witness could be secured. The police party went towards Singhniwala. The applicant was apprehended. At that time, a plastic bag was in his hand. On interrogation, he revealed his name and address. He disclosed that he was carrying Smack from Bareilly to sell it. Mr. Shekhar Chandra Suyal, Circle Officer of the Police, was informed by the informant on mobile phone and in the presence of him, search was conducted. During this search, the present applicant was found to be in possession of Smack (Diacetylmorphine), which was put in his hand bag. The electronic weighing machine was brought by Constable Brij Mohan. The recovered contraband Smack was weighed on the spot and same was found 320 Gram. Thereafter, the recovery memo was prepared. The applicant was arrested at 09.50 hrs. The recovered contraband produced before the court concerned and the whole recovered contraband was sent to the Forensic Science Laboratory, Dehradun. According to the report of Forensic Science Laboratory dated 05.10.2019, the tested material was Smack (Diacetylmorphine). The charge sheet was submitted after investigation.
3. Heard Mr. Karan Anand, the learned counsel for the applicant and Mr. S.S. Adhikari, learned A.G.A. assisted by Mr. P.S. Uniyal, the learned Brief Holder for the State through video conferencing.
4. The learned counsel for the applicant submits that the applicant has been falsely implicated; Smack is not a narcotic drug as the same is nowhere described in its Schedule; the reason is that the waste material which is procured under the derivation of Heroin (Diacetylmorphine) from Opium is called 'Smack'; in the said process, the crushed tablets of 'Mendracks and Alprazolam' is used; when the Smack is tested in the lab then, test comes positive with the narcotic name 'Smack-Diacetylmorphine' because the Smack is the waste material produced under the derivation of Heroin from Opium, therefore, the present matter does not fall under Section 2 (xvi) of the Act, 1985; the alleged contraband was not taken before the concerned court; provisions of Section 50 and 57 of the Act, 1985 have not been complied with; no public witness was taken by the police in the alleged recovery proceedings; the alleged recovery was made in the presence of the Circle Officer, who was highly interested person; there is no clinching evidence against the applicant; the applicant is in custody since 17.08.2019.
5. The learned Assistant Government Advocate appearing for the State opposed the bail application and submits that provision of Section 50 of the Act, 1985 is not attracted in this case; after recovery, the applicant along with recovered contraband were produced before the court concerned and in the presence of the learned Special Judge, NDPS Act, the whole recovered contraband was sent to the Forensic Science Laboratory, Dehradun; the repot of F.S.L. is received; according to the report of F.S.L., the tested material was Smack; the charge sheet is submitted after completion of the investigation; the recovered Smack is in commercial quantity; looking to the involvement in commission of the crime, the chances of misuse of bail and abscondence of the applicant cannot be positively ruled out as the applicant is a permanent resident of Bareilly.
6. Smack is a slang term for Heroin, a narcotic that goes by many names i.e. tar, dope, junk etc. All these names mean the same thing. Smack, sometimes also called Black Tar Heroin, is an illegal form of a strong opioid drug. Heroin comes from a natural flowering plant called a poppy. Heroin (Smack) is a white or brown powder or a black, sticky goo.
7. As per the Table prepared in terms of Section 2 (xxiii a) and Section 2 (vii a) of the Act, 1985, 5 gram of Heroin (Diacetylmorphine) is small quantity and greater than 250 gram is commercial quantity (Entry No. 56).
8. The preamble of the Act, 1985 shows that the object of this Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc.
9. At this stage, it seems appropriate to notice the provisions of Section 50 and Section 37 of the Act, 1985. The provisions of Section 50 and Section 37 of the Act, 1985 are to the following effects:-
"Section 50:-Conditions under which search of persons shall be conducted--(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
"Section 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 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--
(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.
(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".
10. In the case of State vs. Syed Amir Hasnain, (2002) 10 SCC 88, the Hon'ble Apex Court has held, "In view of the two judgments of this Court in Union of India vs. Ram Samujh, MANU/SC/0530/1999 : (1999) 9 SCC 382 and Union of India vs. Aharwa Deen, MANU/SC/0918/2000 : (2000) 9 SCC 382, even the High Court would be bound by the provisions of Section 37 of the NDPS Act and would not be entitled to release the accused under the provisions of the NDPS Act unless the provisions of Section 37 are satisfied."
11. In the case of Megh Singh vs. State of Punjab, MANU/SC/0708/2003 : 2004 (1) CCSC 337, the Hon'ble Supreme Court held that 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.
12. In the case of Makhan Singh vs. State of Haryana, MANU/SC/0479/2015 : (2015) 4 CCSC 1790, the Hon'ble Apex Court has held that compliance which Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc., which the accused may be carrying ought to be searched.
13. Considering the alleged Smack was recovered from the bag, held by the applicant and not in his personal search, it can be said that the compliance of Section 50 of the Act, 1985 was squarely not applicable in the instant case.
14. The submission of the learned counsel for the applicant is that the provision of Section 57 of the Act, 1985 was not complied with. In Babubhai Odhavji Patel Vs. State of Gujrat, MANU/SC/2504/2005 : (2005) 8 SCC 725, the Hon'ble Supreme Court has held that Section 57 of the Act, 1985 is not mandatory but it is only directory.
15. The learned counsel appearing for the applicant submits that no public witness was taken by the police in the alleged recovery proceedings, therefore, this recovery cannot be presumed to be an impartial recovery and the applicant is in custody since 17.08.2019.
16. According to the FIR, in spite of an endeavour, no public witness could be secured. Apart this, the law is well settled that the evidence of a public officer cannot be thrown only on the ground that he is a police officer.
17. The accusation in the present case is with regard to the commercial quantity. Once the public prosecutor opposes the application for bail to a person accused of the enumerated offences, in case, the Court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Code of Criminal Procedure, 1973 or any other enactment, (i) the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence. In Criminal Appeal No(s) 154-157 of 2020 State of Kerala Vs. Rajesh and others, the Hon'ble Supreme Court has held on 24.01.2020 that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that person is not likely to commit any offence while on bail. It is the mandate of the legislature which is required to be followed. The non-obstante clause with which this Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied.
18. In State of M.P. Vs. Kajad, MANU/SC/0541/2001 : (2001) 7 SCC 673, the Hon'ble Supreme Court has held that negation of bail is the rule and its grants an exception under (ii) of clause (b) of Section 37(1) of the Act, 1985.
19. In Criminal Appeal No(s) 154-157 of 2020 (Supra) the Hon'ble Supreme Court has held that liberal approach in the matter of bail under the N.D.P.S. Act is uncalled for.
20. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, MANU/SC/1454/2017 : 2018(1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.
21. In the light of the facts and circumstances of the present case, it cannot be said that mandatory conditions, as mentioned above, have been satisfied. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court. But, from the perusal of the evidences, collected during investigation so far, it prima facie appears that the applicant was involved in this offence. No reason is found to falsely implicate the applicant/accused person. Therefore, there is no good ground to release the applicant-accused person on bail at this stage. The bail application is liable to be rejected. The bail application is rejected accordingly.
22. It is clarified that the observations made regarding the bail application is limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case.
23. The applicant is in custody since 17.08.2019, therefore, the trial court is hereby directed to expedite trial and dispose of the case, at the earliest.
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