Naresh Harmalkar vs State

N.A. Britto, J.—This is an application for bail filed on behalf of the accused against whom an offence has been registered under Sections 20(b)(ii)(C) and Section 22(C) of the NDPS Act, 1985 for having found in possession of 1.325 gms of charas and 1.1 gms of LSD papers. The accused approached the NDPS Court at Mapusa for bail, but his application came to be rejected by order dated 6/12/2007.

Learned Counsel appearing on behalf of the accused has made two submissions. Firstly, the learned Counsel contends that this is a case where the accused deserves to be granted bail, notwithstanding the provisions of Section 37 of the Act, since there is enough material to indicate that the case is fabricated and, in this regard, the learned Counsel has placed reliance on a complaint filed by the wife of the accused on 15/11/2007 to the Deputy Collector General of Police, Panaji-Goa, which according to the learned Counsel was filed before the accused was arrested on 23/11/2007. Learned Counsel on behalf of the applicant has also placed reliance on three judgments, one of the Apex Court in the case of Sarija Banu (A) Janarthani @ Janani & Anr. V/s. State through Inspector of Police (2004 DCN 119). The other is the unreported judgment of this Court dated 3/09/2007 in Criminal Application No. 969/2007 in the case of Shri Suresh Kalyanji Bhagat V/s. The State of Maharashtra and the other dated 4/11/2004 in Criminal Writ Petition No. 4638/2004 in the case of Mohammed Iqbal Abdul Karim Patel V/s. The State of Maharashtra. Secondly, learned Counsel contends that since no charge sheet has been filed till date, the accused would be entitled to bail in terms of Section 167(2) of the Code of Criminal Procedure, 1973.

The quantity which is alleged to have been found with the accused, both under Sections 20(b)(ii)(C) and Section 22(C), is commercial quantity and in the light of Section 37 of the Act, the Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. In other words, the Court is required to look at the bail application negatively and turn positive if the aforesaid two requirements are satisfied. In this context, reference could be made to the decision of the Apex Court in the case of Customs, New Delhi Vs. Ahmadalieva Nodira, , wherein the principle underlying Section 37(1)(b) of the Act has been reiterated by stating that there are two limitations which are required to be satisfied, namely that:

(1) an opportunity to the Public Prosecutor to oppose the bail application ,and

(2) satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of such offence and tha the is not likely to commit any offence while on bail.

The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty to be based on reasonable grounds and the expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

There is no dispute that the wife of the accused filed a complaint against the Police Inspector of ANC Police Station stating that on 25/10/2007 at about 11.45 p.m. and 3/11/2007 at 3.30 p.m., the said Police Inspector had come to inquire about her husband and on the first occasion her husband had gone out of Goa and on the second occasion he was having his food. It was alleged that the said Police Inspector had behaved in a rude manner and threatened her and her children with dire consequences and more over had told her husband that he was going to show involvement of her husband in illegal sale of drugs by forcibly showing quantity of 1.5 kg. of charas in his possession. This visit to the house of the accused by the said Police Inspector is not disputed. However, what is stated on behalf of the respondent and, particularly, the said Police Inspector is that he visited their house not on 23/10/2007 but on 25/10/2007 and 3/11/2007. The visits are sought to be explained by stating that Crime Case No. 13/2007 u/s 20(b)(ii)(C) and 22(C) of the Act was registered against Kalidas Naik on 24/10/2007 and the said Kalidas Naik had linkage with the present accused and, as such, the said Police Inspector had visited the residence of the accused to summon him u/s 67 of the Act in the said Crime No. 13/2007, but he could not be found. It was also stated that the wife of the accused did not allow the police to enter the house and moreover she abused and alleged that she would falsely implicate the police. As regards the said complaint of the wife of the accused dated 15/11/2007, it was stated that it was an afterthought and was made after a gap of 21 days of the visit of the police to the house of the accused for the purpose of serving notice on behalf of the respondent.

A report dated 1/02/2008 addressed to the Inspector General of Police and submitted by the Superintendent of Police, ANC, Panaji has been placed for my perusal. It appears that copy of the said report was also sent to the Home Minister, Government of Goa as the wife of the accused had sent the copy of her complaint dated 15/11/2007 to the said Home Minister. After inquiry, the said Superintendent of Police has come to the conclusion that the allegations were made by the wife of the accused with a view to pre-empt her husband being arrested in a drugs case so that they could defend their interest at the stage of trial and bail. The veracity of the complaint being filed on 15/11/2007, after a lapse of 21 days or so, was doubted by the learned Special Judge and, in my view, rightly, by stating that in para 7 of the order dated 6/12/2007 that this complaint could have been filed immediately and the higher officers informed about it. The learned Special Judge has also noted that he had perused the case diaries of Crime No. 13/2007 as well as crime No. 15/2007 and it was clear there from that the said Kalidas Naik was arrested on 24/10/2007 and that during interrogation, the said Kalidas Naik had disclosed that the said drugs were supplied by one Naresh Harmalkar (accused herein) and there was entry in the case diary dated 25/10/2007 and that he had visited the house of the present accused on 25/10/2007 and he was out of station and his wife had refused to disclose his whereabouts and had refused to accept the intimation u/s 67 of the Act. The learned Special Judge has also observed that on 3/11/2007, there was another entry that the Investigation Officer along with the constable had visited the house of the present accused but he was not found there. The wife of the accused mentioned in the said application that the Police Inspector had told her husband that he was going to show the involvement of her husband in an illegal sale of drugs, but did not specify as to when the said information was given to her, by her husband. The belated filing of the said complaint on 15/11/2007 and the findings in the subsequent inquiry held by the Superior Officers of the Investigating Police Officer shows that it was filed in order to prevent action being taken against the accused, which otherwise was followed in Crime No. 13/2007. The Police Inspector could not take further action against the accused in the said Crime No. 13/2007 presumably because the accused was absconding. The accused was subsequently arrested in this crime on 24/11/2007.

The cases cited on behalf of the accused and referred to herein above stood on their own facts and the prior intimation received in those cases were sufficient to throw doubt whether the arrest made subsequently were genuine or not. The said cases do not set out any precedent and the decisions were given on the facts of those cases. A decision is available as a precedent, only if it decides a question of law. A judgment should be understood in the light of facts of that case and no more should be read into it then what it actually says. The said judgments therefore cannot come to the assistance of the case of the accused for grant of bail in the light of Section 37 of the Act, since the accused was found with commercial quantity.

Section 167(2) of the Code of Criminal Procedure 1973, provides for bail in default after 90 days, in case the investigations are not completed in cases punishable with death, imprisonment for life or imprisonment for a term not less than 10 years and 60 days where the investigation relates to any other offence. Learned Counsel on behalf of the accused has placed reliance on the case of Dr. Bipin Shantilal Panchal Vs. State of Gujarat, to contend that the provision of Section 37 of the Act does not exclude an applicability of the proviso to Section 167(2) of the Code of Criminal Procedure. However, learned Public Prosecutor has referred to Section 36A of the Act which came in to force w.e.f. 2/10/2001 and which by virtue of sub-section 4 thereof provides that notwithstanding anything contained in the Code of Criminal Procedure 1973, in respect of persons accused of an offence punishable u/s 19 or Section 24 or section 27(A) or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, thereof to "ninety days" where they occur, shall be construed as reference to "one hundred and eighty days":

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

Admittedly, the investigations of the case have been almost completed but no charge sheet has been filed against the accused. It appears that the seized drugs are sent to the Central Forensic Science Laboratory at Hyderabad and the report is awaited and since the report was awaited and 180 days had expired on 21/05/2008, the learned Public Prosecutor filed an application for extension of time to file the charge sheet and, accordingly, by order dated 19/05/2008, the learned Special Judge NDPS Court, Mapusa was pleased to grant 45 days from 20/06/2008. By another order dated 19/06/2008, the time to file the charge sheet has been extended to further 45 days w.e.f. 20/06/2008 which is yet to expire. It is not known why the charge sheet has not been filed against the accused inspite of the investigations being otherwise completed and the reason assigned for non filing of the charge sheet is that the report from CFSL is awaited. There is no dispute that the said two orders dated 19/05/2008 and 19/06/2008 were passed by the learned Special Judge without notice to the accused but after hearing the Public Prosecutor. There is also no dispute that the said orders are passed before cognizance of the offences against the accused is taken by the learned Special Judge. The legality of the said orders, the same being passed without notice to the accused is not in question in this bail application. The learned Public Prosecutor submits that the charge sheet is not filed because in case it is filed without the report of CFSL, the accused would be granted bail. It is not necessary to consider such a submission. Prima facie, such a submission cannot be accepted, for in the absence of the report, and the purity of the drugs seized being known, one will have to go by the weight of the quantity seized. However, only because the accused was not heard in the said two application for extension of time, in my view, the accused would not be entitled to be admitted to bail In view of the above, I find there is no merit in this application and consequently the same is hereby dismissed.