Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.19453 of 2013 ====================================================== Bali Ram Sharma S/o Late Mani Ram Versus .... .... Petitioner/s The Union Of India Through The Commissioner, Custom Department, Patna .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Pankaj Kumar Jha, Adv. : Mr. Santosh Kumar, Adv. For the Opposite Party/s : Mrs. Archana Sinha, CGC ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN C.A.V. ORDER 3. 23.05.2013 This petition for anticipatory bail has been filed on behalf of the petitioner who apprehends his arrest for the offences alleged under Sections 20 and 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 in connection with Case No. C2A-2/2010. 2. Allegation relates to recovery of 5 packets each containing 11 Kgs. (in all weighing 55 Kgs.) of Nepali Ganja from a Mahindra Marshal vehicle bearing Registration No. HP-30/5045, representative samples wherefrom were taken and sent for laboratory test etc. and whereupon the
Facts
laboratory confirmed that the seized commodity was Ganja. The Mahindra Marshal vehicle on verification was found to belong to the petitioner having his present and permanent address at Chamanpur, District Mandi, Himachal Pradesh and, accordingly, summons under Section 67 NDPS Act, 1985 was issued to the petitioner who, however, did not Patna High Court Cr.Misc. No.19453 of 2013 (3) dt.23-05-2013 2/6 turn up but submitted his reply on 25.01.2011 stating that
Legal Reasoning
8. Having considered the rival submissions of the parties and the decisions relied upon by the Petitioner, this Court however finds itself unable to grant the privilege of anticipatory bail to the Petitioner. Section 37 NDPS Act provides that notwithstanding the provisions of the Code of Criminal Procedure, a person shall ordinarily not be released on bail unless there are reasonable grounds for believing that he is not guilty of the offence which he is charged with and that he is not likely to commit such offence while on bail. In other words, it is for the accused to show the existence of the grounds for the belief that he is not guilty of the offence with which he is charged. In the instant case, the Petitioner has mainly relied on a promissory note executed by the Sri Chaman Lal claimed as the purchaser of the vehicle but the same cannot be said to be evidence of sale having finally fructified in his favour. The promissory note itself avers that in case of failure to make payment of the remaining balance consideration of Rs. 10,000/- within 15 days thereof to the Petitioner, the deal would be treated as cancelled and the Petitioner would be at liberty to take back the physical possession of the vehicle without any notice to the purchaser. No material Patna High Court Cr.Misc. No.19453 of 2013 (3) dt.23-05-2013 6/6 however has been brought on record to show that the said balance consideration of Rs. 10,000/- had in fact been paid by Sri Chaman Lal. Besides, credibility or otherwise of the promissory note has to be considered by the investigating agency in course of investigation and by the Trial Court in course of trial. As such, the promissory note cannot be relied upon as a bona fide document by this Court for the purposes of grant of anticipatory bail at this stage. Moreover, the decision of the Hon’ble Supreme Court in Bhola Singh’s case (supra) was rendered in a criminal appeal and thus that was a case where the entire gamut of materials and evidences relied upon by the parties had already been brought in course of the trial, whereas such is not the case here as further evidences surfacing in the course of investigation/trial are yet likely to come on records. This Court is therefore of the view that it is rather premature to arrive at a prima-facie satisfaction in terms of Section 37 NDPS Act that the Petitioner is not guilty of the offence in question for the purposes of grant of bail. 9. The bail petition is accordingly rejected. Fahad. ( Vikash Jain, J. )
Arguments
he had sold the said vehicle to Sri Chaman Lal, who on summons being issued, did not also turn up before the authorities. Accordingly, the complaint came to be made against the petitioner as well as Sri Chaman Lal on the ground that the seized Ganja belonged to them and they indulged it themselves in smuggling activities. 3. Learned counsel for the petitioner submits that the petitioner has been necessarily implicated in the case as there is nothing incriminating whatsoever to connect him with the seized goods except to the extent that the concerned vehicle was found to be standing in his name. It is shown from the promissory note/ sale letter dated 9.01.2006 (Annexure-5/A) that physical possession of the vehicle had been taken by the purchaser Sri Chaman Lal against part payment of Rs.50,000/- to the petitioner with a balance of Rs.10,000/- towards the consideration remaining to be paid. Learned counsel for the petitioner further refers to the letter dated 12.02.2011 from the purchaser Sri Chaman Lal to the petitioner, inter alia, reconfirming and specifically admitting the fact of having purchased the Mahindra Marshal Jeep Registration No. HP- 30/5045 from the petitioner on 09.01.2006. It is, therefore, submitted that at the highest there may have occurred some default under the provisions of the Motor Vehicles Act in failing to effect transfer of the ownership in favour of the Patna High Court Cr.Misc. No.19453 of 2013 (3) dt.23-05-2013 3/6 purchaser, Sri Chaman Lal, which has led to the petitioner continuing to be shown as the owner of the vehicle, but that by itself without anything more cannot even prima facie establish the complicity of the petitioner with regard to the transport/ recovery of the offending seized goods. 4. Learned counsel for the petitioner further relies on 2011 (11) SCC 653 (Bhola Singh Vs. State of Punjab), where the petitioner therein was co-owner of a truck wherefrom 16 bags of poppy husk had been recovered, and lays emphasis on the observations therein as follows- “7. Mr. Kuldip Singh, the learned counsel for the State of Punjab, has however supported the judgment of the trial court. We, however, repeatedly asked the learned counsel as to whether there was any evidence as to the involvement of the appellant, other than that he was the co-owner of the truck and that he had given a wrong address. The learned counsel fairly stated that there was no other evidence against the appellant. 8. We have considered the arguments advanced by the learned counsel. We see that Section 25 of the Act would not be applicable in the present case as there is no evidence to indicate that Bhola Singh, the appellant had either knowingly permitted the use of the vehicle for any improper purpose. The sine qua non for the applicability of Section 25 of the Act is thus not made out. 11. …The only evidence which the prosecution seeks to rely on is the appellant’s conduct in giving his residential address in Rajasthan although he was a resident of Fatehabad Patna High Court Cr.Misc. No.19453 of 2013 (3) dt.23-05-2013 4/6 in Haryana while registering the offending truck cannot by any stretch of imagination fasten him with the knowledge of its misuse by the driver and others”. 5. Learned counsel next relies on para 28 of the decision reported in (2007) 1 SCC 355 (State of Uttranchal Vs. Rajesh Kumar Gupta), which is reproduced below, to submit that Section 37 of the NDPS Act does not constitute a complete bar against grant of anticipatory bail- “28. Section 37 of the 1985 Act must be construed in a pragmatic manner. It cannot be construed in such a way so as to negate the right of party to obtain bail which is otherwise a valuable right for all practical purpose”. 6. It is further submitted that the petitioner satisfies the parameters for grant of privilege of anticipatory bail as enumerated in para 122 of the decision reported in (2011) 1 SCC 694 (Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.), specifically stressing the fact that the petitioner is a respectable businessman of standing in his locality having no criminal antecedents, and thus the personal liberty of the petitioner deserves to be prosecuted. 7. Learned counsel for the respondent, on the other hand, opposes the bail petition, inter alia, on the ground that neither the petitioner nor the alleged purchaser Sri Chaman Lal had appeared before the authorities despite issuance of summons to each of them. It is submitted that considering the commercial quantity of the goods which Patna High Court Cr.Misc. No.19453 of 2013 (3) dt.23-05-2013 5/6 stood confirmed in terms of the laboratory report to be ganja was recovered from the Mahindra Marshal vehicle standing in the petitioner’s name, this is not a fit case for grant of anticipatory bail to the petitioner.