Union of India v. Shahid and Others, arising out of D.R.I. Crime No

2. Heard Shri A.P. Mishra, learned counsel for the appellants and Shri Dipak Seth, learned Senior Counsel for the Union of India and perused the material placed on record.

3. The appellants/applicants, Pushpendra Singh Senger @ Sonal Senger, Rahul, Birj Kishore @ Birju and Harswaroop, seek bail in this appeal, which has been preferred against the judgment and order dated 18.04.2024 passed by Additional District and Sessions Judge Court No.11/ Special Judge N.D.P.S. Act, Lucknow in Criminal Case No.1190 of 2018; Union of India vs. Shahid and Others, arising out of D.R.I. Crime No.01/2018 under Section 20/29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 relating to the Police Station-Directorate of Revenue Intelligence, Lucknow whereby the court concerned has convicted and sentenced the appellant under Section 20/29 of N.D.P.S. Act for 10 years rigorous imprisonment and fine of Rs.1,00,000/- and under Section 27A of the N.D.P.S. Act for 10 years rigorous imprisonment with default stipulations.

4. As per prosecution case, on 10th January, 2018, at 10:30 a.m., an information was received to Sunil Kumar Mathur, Intelligence Officer, D.R.I., Lucknow that one Truck bearing No. HR 38 P 0938, loaded with cannabis (ganja), coming from Orissa, is going to Orai via Jhansi. On this information, a team of officials of D.R.I. moved towards Orai at 12:30 p.m. Near Hussariya Chauraha, Lucknow, the team interacted with two persons, namely, Pavnesh Kumar and Sanjay Kumar and requested them for witnessing the incident, on which, they conceded and sat in the vehicle of the team. The team of D.R.I. reached Orai at 6:15 p.m. and as per the strategy, they reached at Ait Toll Plaza and started keeping vigil on the vehicles. At 8:40 p.m., one containerised truck having Registration No. HR 38 P 0938, was seen coming from Jhansi, which was intercepted by the team and the driver of the truck was directed to stop the vehicle. On being interrogated, the person, who was on the driving seat, told his name as Shahid s/o Anwar r/o Naiyovali Milak, Tehsil Bilari, P.S. Mainather, District Moradabad. Another person, who was sitting on the adjoining seat of the truck, introduced himself as Deepak Rana s/o Amber Lal Rana r/o village Savangi, Tehsil Varsivanee, District Balaghat, M.P. Though both the persons, initially, denied about any contraband, but later on, they accepted that cannabis is loaded in the truck for being transported to Orai from Jaipur, Orissa. The D.R.I. team informed them about the provisions of Section 50 of the NDPS Act, on which they requested that due to life threat from the owner of the contraband, the search may be conducted at some safe place. Considering their request, the vehicle along with both the accused, was brought to the regional office at Lucknow on 11th January, 2018 at 10:00 a.m., where the search was conducted.

5. Thereafter, recovery memo was prepared by the officials, according to which, Rs.730/- in cash along with the Samsung mobile and driving licence was recovered from the possession of truck driver-Shahid. From the possession of Deepak Rana, his voter ID, one SBI debit card bearing no. 6070940442437280 in the name of Rukmani Singh, two PNB cards bearing nos. 6070930014633671 and 6070930014633945, payment receipt of Rs.8,000/- dated 18th October, 2017 in the account of Sakun Bai Rana (Account No. 614400NC00000528), one mobile and Rs.666/- cash were recovered. During the course of search of the vehicle, the documents recovered were the registration certificate, fitness certificate, permit of goods and insurance of the vehicle along with check report of vehicle of Government of Andhra, Authorisation certificate of National Permit, Pollution Control Certificate, Pan Card of Harswaroop (owner of the vehicle), receipt of deposit dated 28.03.2016 of Rs.20,500/- in the account of Harswaroop in Federal Bank, Moradabad Branch, carbon copy of Bill No. 0092, G.R.No. 815 dated 18th November, 2017 of Road Lines Pvt. Ltd., Om Vihar, Delhi as well as slips of the vehicle in question of Toll Plazas upto Ait Toll Plaza dated 10.01.2018 at 20:41:24 p.m. In the vehicle, 210 crates were also found and behind the said crates, 18 plastic bags were found, in all of which, cannabis was filled. The net weight of recovered contraband was found to be 237.340 kg. Thereafter, sample was taken in the presence of the witnesses, officials of the D.R.I. as well as the accused persons, namely, Shahid and Deepak Rana.

6. Learned Counsel for the appellants/applicants submits that the appellants/applicants are innocent persons and have been falsely implicated in the present case. The present appellants/applicants have been made accused only on the basis of confessional statement of the arrested accused persons allegedly recorded under Section 67 of N.D.P.S. Act, 1985 and the appellants/applicants were not arrested on spot. Nothing was recovered from their possession and there was no evidence direct or indirect against them for their complicity in the crime in question.

7. In support of his arguments, he has placed reliance on the judgment of Hon'ble Supreme Court of India in the case of Tofan Singh vs. State of Tamil Nadu reported in (2013) 16 SCC 31 where it has been held that a person's right against self- incrimination and right to privacy under Article 20(3) and Article 21 of the Constitution would be applicable against confessions recorded under Section 67 of the NDPS Act. Therefore, such confessions would not be admissible as evidence.

8. Learned Counsel for the appellants/applicants further submits that there were no independent witnesses produced before the trial court without any explanation, which also brings the prosecution story under legal scrutiny. He further submits that the conviction under Section 27A of the N.D.P.S. Act, 1985 is also illegal as there were no corroborative evidence which shows that the appellants/applicants were indulged in the financing business and all these facts have been ignored by the trial court while convicting the appellants/applicants.

9. Learned counsel for the appellants/applicants further submits that appellants/applicants were on bail during course of trial, which was never misused by them and the appellants/applicants have no criminal history. There is no likelihood of this appeal to be heard at an early date or in near future and therefore, the appellants are entitled to be enlarged on bail during the pendency of this appeal.

10. Learned A.G.A. has opposed the prayer for bail, however, he does not dispute the aforesaid aspect of the case.

11. Having heard to the submissions advanced by learned Counsel for the parties and gone through the record including the impugned judgment passed by the trial court as well as keeping in view the fact that the appellants/applicants were on bail during trial and did not misuse the liberty of bail and they have no criminal antecedent, this Court finds it a fit case to enlarge the appellants/applicants on bail during pendency of this appeal.

12. Let the appellants/applicants- Pushpendra Singh Senger @ Sonal Senger, Rahul, Birj Kishore @ Birju and Harswaroop convicted and sentenced in Criminal Case No.1190 of 2018; Union of India vs. Shahid and Others, arising out of D.R.I. Crime No.01/2018 under Section 20/29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 relating to the Police Station-Directorate of Revenue Intelligence, Lucknow be released on bail on their executing personal bond and two sureties each in the like amount to the satisfaction of the court concerned, subject to the following conditions:- (i) The appellants/applicants shall cooperate in the early disposal of this appeal without seeking any unnecessary adjournments. (ii) The appellants/applicants shall not indulge in any criminal activity or commission of any crime after being released on bail. (iii) In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

13. It is made clear that fine is not stayed and the same is to be deposited by the appellants within two months after they are enlarged on bail.

14. On acceptance of bail bond and personal bond, the trial court concerned shall transmit the photostat copies thereof to this Court to be kept on record. The hearing of the appeal is expedited. (Order on Memo of Appeal) List/put up these cases in due course. Order Date :- 27.1.2025 -Piyush- [Om Prakash Shukla, J.]

2. Heard Shri A.P. Mishra, learned counsel for the appellants and Shri Dipak Seth, learned Senior Counsel for the Union of India and perused the material placed on record.

3. The appellants/applicants, Pushpendra Singh Senger @ Sonal Senger, Rahul, Birj Kishore @ Birju and Harswaroop, seek bail in this appeal, which has been preferred against the judgment and order dated 18.04.2024 passed by Additional District and Sessions Judge Court No.11/ Special Judge N.D.P.S. Act, Lucknow in Criminal Case No.1190 of 2018; Union of India vs. Shahid and Others, arising out of D.R.I. Crime No.01/2018 under Section 20/29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 relating to the Police Station-Directorate of Revenue Intelligence, Lucknow whereby the court concerned has convicted and sentenced the appellant under Section 20/29 of N.D.P.S. Act for 10 years rigorous imprisonment and fine of Rs.1,00,000/- and under Section 27A of the N.D.P.S. Act for 10 years rigorous imprisonment with default stipulations.

4. As per prosecution case, on 10th January, 2018, at 10:30 a.m., an information was received to Sunil Kumar Mathur, Intelligence Officer, D.R.I., Lucknow that one Truck bearing No. HR 38 P 0938, loaded with cannabis (ganja), coming from Orissa, is going to Orai via Jhansi. On this information, a team of officials of D.R.I. moved towards Orai at 12:30 p.m. Near Hussariya Chauraha, Lucknow, the team interacted with two persons, namely, Pavnesh Kumar and Sanjay Kumar and requested them for witnessing the incident, on which, they conceded and sat in the vehicle of the team. The team of D.R.I. reached Orai at 6:15 p.m. and as per the strategy, they reached at Ait Toll Plaza and started keeping vigil on the vehicles. At 8:40 p.m., one containerised truck having Registration No. HR 38 P 0938, was seen coming from Jhansi, which was intercepted by the team and the driver of the truck was directed to stop the vehicle. On being interrogated, the person, who was on the driving seat, told his name as Shahid s/o Anwar r/o Naiyovali Milak, Tehsil Bilari, P.S. Mainather, District Moradabad. Another person, who was sitting on the adjoining seat of the truck, introduced himself as Deepak Rana s/o Amber Lal Rana r/o village Savangi, Tehsil Varsivanee, District Balaghat, M.P. Though both the persons, initially, denied about any contraband, but later on, they accepted that cannabis is loaded in the truck for being transported to Orai from Jaipur, Orissa. The D.R.I. team informed them about the provisions of Section 50 of the NDPS Act, on which they requested that due to life threat from the owner of the contraband, the search may be conducted at some safe place. Considering their request, the vehicle along with both the accused, was brought to the regional office at Lucknow on 11th January, 2018 at 10:00 a.m., where the search was conducted.

5. Thereafter, recovery memo was prepared by the officials, according to which, Rs.730/- in cash along with the Samsung mobile and driving licence was recovered from the possession of truck driver-Shahid. From the possession of Deepak Rana, his voter ID, one SBI debit card bearing no. 6070940442437280 in the name of Rukmani Singh, two PNB cards bearing nos. 6070930014633671 and 6070930014633945, payment receipt of Rs.8,000/- dated 18th October, 2017 in the account of Sakun Bai Rana (Account No. 614400NC00000528), one mobile and Rs.666/- cash were recovered. During the course of search of the vehicle, the documents recovered were the registration certificate, fitness certificate, permit of goods and insurance of the vehicle along with check report of vehicle of Government of Andhra, Authorisation certificate of National Permit, Pollution Control Certificate, Pan Card of Harswaroop (owner of the vehicle), receipt of deposit dated 28.03.2016 of Rs.20,500/- in the account of Harswaroop in Federal Bank, Moradabad Branch, carbon copy of Bill No. 0092, G.R.No. 815 dated 18th November, 2017 of Road Lines Pvt. Ltd., Om Vihar, Delhi as well as slips of the vehicle in question of Toll Plazas upto Ait Toll Plaza dated 10.01.2018 at 20:41:24 p.m. In the vehicle, 210 crates were also found and behind the said crates, 18 plastic bags were found, in all of which, cannabis was filled. The net weight of recovered contraband was found to be 237.340 kg. Thereafter, sample was taken in the presence of the witnesses, officials of the D.R.I. as well as the accused persons, namely, Shahid and Deepak Rana.

6. Learned Counsel for the appellants/applicants submits that the appellants/applicants are innocent persons and have been falsely implicated in the present case. The present appellants/applicants have been made accused only on the basis of confessional statement of the arrested accused persons allegedly recorded under Section 67 of N.D.P.S. Act, 1985 and the appellants/applicants were not arrested on spot. Nothing was recovered from their possession and there was no evidence direct or indirect against them for their complicity in the crime in question.

7. In support of his arguments, he has placed reliance on the judgment of Hon'ble Supreme Court of India in the case of Tofan Singh vs. State of Tamil Nadu reported in (2013) 16 SCC 31 where it has been held that a person's right against self- incrimination and right to privacy under Article 20(3) and Article 21 of the Constitution would be applicable against confessions recorded under Section 67 of the NDPS Act. Therefore, such confessions would not be admissible as evidence.

8. Learned Counsel for the appellants/applicants further submits that there were no independent witnesses produced before the trial court without any explanation, which also brings the prosecution story under legal scrutiny. He further submits that the conviction under Section 27A of the N.D.P.S. Act, 1985 is also illegal as there were no corroborative evidence which shows that the appellants/applicants were indulged in the financing business and all these facts have been ignored by the trial court while convicting the appellants/applicants.

9. Learned counsel for the appellants/applicants further submits that appellants/applicants were on bail during course of trial, which was never misused by them and the appellants/applicants have no criminal history. There is no likelihood of this appeal to be heard at an early date or in near future and therefore, the appellants are entitled to be enlarged on bail during the pendency of this appeal.

10. Learned A.G.A. has opposed the prayer for bail, however, he does not dispute the aforesaid aspect of the case.

11. Having heard to the submissions advanced by learned Counsel for the parties and gone through the record including the impugned judgment passed by the trial court as well as keeping in view the fact that the appellants/applicants were on bail during trial and did not misuse the liberty of bail and they have no criminal antecedent, this Court finds it a fit case to enlarge the appellants/applicants on bail during pendency of this appeal.

12. Let the appellants/applicants- Pushpendra Singh Senger @ Sonal Senger, Rahul, Birj Kishore @ Birju and Harswaroop convicted and sentenced in Criminal Case No.1190 of 2018; Union of India vs. Shahid and Others, arising out of D.R.I. Crime No.01/2018 under Section 20/29 and 27A of Narcotic Drugs and Psychotropic Substances Act, 1985 relating to the Police Station-Directorate of Revenue Intelligence, Lucknow be released on bail on their executing personal bond and two sureties each in the like amount to the satisfaction of the court concerned, subject to the following conditions:- (i) The appellants/applicants shall cooperate in the early disposal of this appeal without seeking any unnecessary adjournments. (ii) The appellants/applicants shall not indulge in any criminal activity or commission of any crime after being released on bail. (iii) In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

13. It is made clear that fine is not stayed and the same is to be deposited by the appellants within two months after they are enlarged on bail.

14. On acceptance of bail bond and personal bond, the trial court concerned shall transmit the photostat copies thereof to this Court to be kept on record. The hearing of the appeal is expedited. (Order on Memo of Appeal) List/put up these cases in due course. Order Date :- 27.1.2025 -Piyush- [Om Prakash Shukla, J.]