Janrail Singh vs State of U. P.

Vinod Prasad, J.—Applicant Janrail Singh, who is incarcerated in jail, in connection with Crime No. 255 of 2007, for the offences u/s 8/21, N.D.P.S. Act, P.S. Kotwali, district Varanasi, has sought his release on bail, through the instant criminal miscellaneous bail application, as he has failed to get the said relief from the courts below.

Allegations against the applicant, according to the F.I.R. Annexure-1, are that K. D. Misra, S.H.O., P.S. Kotwali, district Varanasi was on picket duty alongwith three other Constables, Awadhesh Singh, Awadhesh Yadav and Shahid Khan. At Maidagin crossing under Kotwali police circle, district Varanasi, he was consulting with the members of S.O.G. team, consisting of S.I. Girja Shankar Tripathi, S.I. Shivanand Misra, S.I. Ashish Misra, S.I. Amit Kumar Srivastava, S.I. S.P. Singh, S.I. C. P. Dwivedi, Head Constable Mahesh Chandra Srivastava alongwith 12 other Constables and driver Gopal, regarding the murder of Dr. D. P. Singh, in the presence of S.S.I. Satish Chandra Shukla and S.I. Akchhaibar Nath Shukla, when the informer informed him that three smugglers are waiting in Machodari Park to proceed for Bihar alongwith huge quantity of heroin, a narcotic, which they have brought from Rajasthan and if action is taken with the alacrity, they can be apprehended.

Believing the informer, informant S.H.O. K. D. Misra informed the Magistrate, his higher officers and officers of Narcotic Control Bureau on R.T. set and because of paucity of time, the S.H.O. did not wait for the arrival of the said officers, he got the information memo prepared, and proceeded towards the spot in a Jeep. Meanwhile, he had also endeavoured to join independent witnesses but in-vain.

On reaching Machodary Park, at the pointing out of the informer, when the raiding party reached near the pound, situated inside the park, they witnessed three persons sitting at the western stairs of the pound. The raiding party intercepted and apprehended those three persons, who disclosed their names, as Janrail Singh, (present applicant) Raghvendra Pratap Singh and Raja Yadav.

The three apprehended accused informed the raiding party that they are in possession of narcotic heroin, which they had brought from Rajasthan through an agent. They further disclosed that they wanted to carry the heroin to Sasaram in Bihar, where businessmen contact them for business. The apprehended accused persons further informed that an agent from Rajasthan gives them contraband in advance and after sale, his share of sale proceeds is given to him. Three apprehended accused persons were informed about their rights u/s 50 of N.D.P.S. Act, but they refused the exercise of their such a right and allowed the raiding party to search them. Searching party before searching accused, searched each of them to rule out the possibility of planting narcotics and thereafter a fard was prepared for compliance of Section 50 of N.D.P.S. Act. Meanwhile, Sanjai Kumar Tiwari, an officer of Narcotic Control Bureau, also arrived at the spot. The apprehended accused persons, thereafter, were searched and from the possession of the applicant 4.820 grams heroin, which was weighed on physical balance, was recovered. From the other accused persons also heroin were recovered. The recovered narcotic were sealed in phials after taking samples. The accused persons were arrested for the charge u/s 8/21 of N.D.P.S. Act. Search, seizure and arrest memo were prepared and the copy of same were given to the three apprehended accused persons. On the basis of the said search seizure and arrest memo. F.I.R. Annexure-1 was registered at P. S. Kotwali, district Varanasi on the same day 19.9.2007, at 4.45 p.m. by the S.H.O., he being the informant.

The chemical examination by Forensic Science Laboratory, Ram Nagar, Varanasi, vide Annexure-5, established recovered articles to be heroin.

On the above facts, I have heard Sri Dharm Pal Singh, learned senior counsel in support of this bail application and learned A.G.A. in opposition.

Sri Dharam Pal Singh, learned senior counsel in support of this bail application submitted that the percentage of the heroin is not mentioned in the total recovered quantity of narcotic, and therefore, it cannot be said that heroin recovered from the possession of the applicant is more than small quantity, and therefore, the applicant should be released on bail. Learned senior counsel further submitted that testing of the recovered narcotic in Forensic Science Laboratory, Ram Nagar is in breach of Rule 2, framed under the N.D.P.S. Act, which, according to the learned Counsel, has been said to be good bye for oblique motives. Elaborating his submissions, learned Counsel for the applicant contended that the Legislature in its wisdom has categorized the offences into three category - small, commercial and category in between the two. Learned Counsel further contended that the Legislature was alive of the situation that the accused should be punished only for possession of the actual quantity of narcotic and not on the basis of total quantity of seized article. Sri Singh submitted that if the Legislature never intended to punish a person for possession of total amount of article recovered, non-mentioning of the actual quantity of narcotics, in the seized commodity entitles the applicant to be released on bail. In support of this submission, learned senior counsel placed reliance on three judicial pronouncements of E. Micheal Raj v. Intelligence Officers Narcotic Control Bureau (LXI) 2008 ACC 660: 2008 (2) ACR 2204 ; State of Kerala Vs. Deepak P. Shah, and Nihal Khan Vs. The State (Govt of Nct of Delhi), Sri Singh further submitted that the applicant applied for re-testing of the seized narcotics twice, but on both the occasions, the trial Judge, illegally and without any valid reason rejected the application of the applicant-accused, which has caused prejudice to his case, and therefore, keeping in mind the principles of fair trial, applicant should be released on bail. Sri Singh further submitted that the applicant does not have any criminal history and no recovery has been made from his possession and he has been falsely implicated by the police in this serious offence of Inter-State Transportation of Narcotic, and therefore, he should not be allowed to remain in jail any further, Sri Singh also submitted that there is no link evidence for Inter State Import and Export of Narcotics but for the confessional statement of the applicant, which is a retracted one, as the same was never made to the searching party. Concludingly, learned Counsel for the applicant submitted that the applicant is in jail since 19.9.2007, more than one year and therefore, his further imprisonment is not desirable and he should be released on bail. Through the second supplementary-affidavit, Sri Singh has appended the statements on oath of the prosecution witnesses, recorded in the concerned Sessions Trial No. 233 of 2007, State v. Janrail Singh and others, which is pending before the VI Ith Additional Judge, Varanasi.

Learned A.G.A. on the contrary refuted all the contentions raised by Sri Dharm Pal Singh, learned senior counsel and submitted that a huge quantity of heroin being 4.820 kg., has been recovered from the possession of the applicant. There is compliance of Sections 42 and 50 of N.D.P.S. Act. There is no reason for false implication of the applicant, as there is absolutely no animus of the raiding party against the applicant and therefore, bail prayer of the applicant should be rejected. Learned A.G.A. further contended that the rejection of the application of the accused for getting sample retested, does not prejudice the right of the applicant to apply again and it is no ground to grant bail to the applicant and the report by Forensic Science Laboratory, Ram Nagar, Varanasi, indicates that more than commercial quantity of narcotics has been recovered from the possession of the applicant. Learned A.G.A. further contended that there is no reason to grant bail to the applicant and his bail application being bereft of any merit deserves to be dismissed.

I have considered the submission raised by both the sides.

Taking the arguments of the learned Counsel for the applicant in seriatum, I find that the categorisation of quantity of contraband narcotics by the Legislators is for the purpose of the punishment only. Categorisation has nothing to do with making out the offences. The Legislature, in its wisdom, has catalogued those persons, who are indulging into heavy dealing in narcotic drug who cannot be equated with petty offenders under the N.D.P.S. Act. The Legislature, it seems, was also of the view that the person should be punished only for the possession of actual quantity of narcotic and his sentence should be commensurate with such quantity. This aspect of the matter has been dealt with in detail by the Apex Court in the decision of E. Micheal Rai (supra), which has been relied upon by the learned Counsel for the applicant himself. The said judgment of the Apex Court may have a bearing on the sentence which is to be implanted on a guilty under trial but, at the initial stage, when the bail is being considered at a pre-conviction stage, the said decision is of no help to the applicant. I would hasten to add here that the aforesaid decision of the Apex Court was rendered in an appeal after conviction and not at a pre-trial stage.

Coming to the other two judgments relied upon by learned Counsel for the applicant, they have got some relevancy only with the question as to whether the application for retesting moved by the accused should be allowed or not? The perusal of both judgments brings forth the opinion that it lies with the discretion of the trial Judge to allow such a prayer by the accused. There is no dearth of power with the trial Judge to allow such a prayer. The prayer of accused/prosecution has to be considered on the facts and circumstances of each case. In the present case, the trial Judge was of the opinion that the said prayer of the accused can be considered at a later stage and in my view the said opinion of the trial Judge cannot be said to be unreasonable and against the principles of law and fair trial. The right of the accused has not been closed for ever, hence the applicant can, at the later stage, apply for retesting of the contraband heroin. At this stage, there is a report from the Forensic Science Laboratory, Ram Nagar, district Varanasi against the applicant, indicating that samples, which were sent to it, for testing were heroin.

Coming to another aspect of the matter argued by the learned senior counsel that the Forensic Science Laboratory, Ram Nagar had no authority to test the sample in breach of Rule 2 (c) of the Narcotic Drugs and Psychotropic Substances Rules, 1985, I only would like to reproduce para 5 of the decision of State of Kerala v. Deepak P. Shah, (supra), relied upon by learned Counsel for the applicant himself, wherein it has been observed thus:

One of the contentions raised by the learned Counsel for the Respondent is that under Rule 2 (c), Chemical Examiner competent to analyse the sample is only the chemical examiner, Government Opium and Alkaloid Works. Neemuch or as the case may be, Ghazipur and that the Chemical Laboratory at Trivandrum is not competent to make the analysis. This contention has to fall in view of the decision of this Court in Azeez v. State of Kerala (1993) 2 Ker 252. The contention raised therein based on Rule 2 (c) was negatived and it was found that unless the Act or the Rules prohibits any person other than chemical examiner mentioned in Rule 2 (c) to conduct analysis, it is open to the Court to send it to any analyst for analysis and that the opinion of such expert can be used as evidence u/s 293 of the Cr. P.C.

The said point raised by the learned Counsel for the applicant therefore fails.

The allegations as have been levelled against the applicant by the prosecution, which has been stated in concerned Sessions Trial by the witnesses of fact, are that the applicant indulges into illegal Inter State Import and Export of Narcotic Drug (heroin) and a huge quantity of 4.280 kg., of heroin has been recovered from his possession. The accused has failed to bring on record any reason for his false implication by raiding, search and seizing party.

I do not find any reason to grant bail to the applicant. His bail prayer is declined.

This bail application is rejected.