Ratan Kumar Vishwas Vs.
State of U.P. & ANR. [2008] INSC 1902 (7 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1754 OF 2008
(Arising out of SLP (Crl.) No.1777 of 2008) Ratan Kumar Vishwas ...Appellant
Versus State of U.P. & Anr. ...
Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the Judgment of a learned Single Judge of the Allahabad
High Court dismissing the application filed by the appellant for suspension of
sentence and grant of bail. Appellant-Ratan Kumar Vishwas has filed an Appeal
No. 6636 of 2006 questioning his conviction the offence punishable under
Sections 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(in short `the Act').
He was sentenced to
undergo rigorous imprisonment for 14 years and to pay a fine of rupees two lacs
with default stipulation. Learned Additional Sessions Judge, Fast Track Court
No. 1, Kanpur Nagar has found the appellant guilty and convicted and sentenced
him as aforesaid.
3.
Brief
facts of the case as projected by prosecution are that a secret and reliable
information on 5.3.2004 was received by the complainant an officer of the
N.C.B., Varanasi that huge quantity of Charas was being brought from Nepal to
Kanpur in Truck No. UHN 9137 and same was standing at Kanodia Auto Centre,
Lucknow Kanpur bypass road and it belonged to Akhilesh Kumar Bajpai son of
Srikant Bajpai, resident of 127/333, Nirala Nagar, Kanpur Nagar. This
information was reduced to writing and thereafter Intelligence Officers, U.K.
Singh and K.K. Mishra along with S. Rallabhandi, S.K. Singh and R.K. Gupta,
also Intelligence Officers, Ramnath, sepoy with driver Vijendra Kumar,
proceeded from camp office, Gujani in departmental vehicle number U.P.
65-S-6951 and U.P 65-V-7826 and reached near the Kanodia Auto Centre at about 9
p.m.
Two persons standing
nearby were called and they disclosed their names as Rajendra Prasad and Ramjee
Singh. After explaining the purpose for which they were requested to be present
i.e. during search, they agreed. At 9.05 p.m. a team reached near the above
truck and three persons were found sitting inside the truck and on enquiry they
disclosed their names as Bhola Prasad, Shambhu Prasad and Lalji Yadav. On asking
Bhola Prasad disclosed that he was driver of the Truck and Lalji was cleaner
and Shambhu Prasad was owner of the Truck and told that on reaching the petrol
pump at Kanpur, he had to contract Akhilesh Kumar Bajpai on phone number
0512-2616517. These officers gave their identity to these three persons and
asked them in writing if they desired their vehicle to be searched in presence
of a Gazetted Officer or a Magistrate which was their legal right. But they
declined in writing and offered that the search be made by them. At this the
officers of the N.C.B. searched the vehicle in accordance with law and in the
presence of two witnesses and they found black colour plates wrapped in
polythene kept in plastic bags in specially made secret cavity behind the cabin
of the Truck. On testing with the test kit possessed by the N.C.B. Officers,
the recovered black colour plates were found to be Charas. The recovered Charas
was seized along with vehicle.
However, due to
darkness and unavailability of weighing facility and for security reasons, the
vehicle and the arrested persons were taken to the Customs and Central Excise
Office, Kanpur Nagar where they reached at about 10.45 p.m. They recovered 14
plastic bags which were weighed and the gross weight was 252.500 Kgs. and the
net weight was 250.400 Kgs.
Two samples of 25
grams each were drawn from all the 14 bags and were marked and kept in separate
sealed envelopes. All the packets of samples were signed by the accused persons
and the witnesses and the officers of the N.C.B. The accused Bhola Prasad,
Shambhu Prasad admitted that they had to take that Charas to Akhilesh Kumar
Bajpai. They also told that accused Govind Singh of Nepal State with the help
of accused Kamal and Virendra Kumar had visited Veerganj in Nepal few days
earlier to meet Govind and to finalise the deal for Charas.
4.
At
that time, the recovery memo was also prepared which was duly signed by the
accused, witnesses and the officers of the N.C.B. Thereafter the officers of
the N.C.B., independent witnesses Sri S.R. Agarwal, superintendent, Kailash
Chandra, Inspector of Customs and Central Excise and police force of Kidwai
Nagar reached the house of Akhilesh Kumar Bajpai in Nirala Nagar at about 12.30
a.m. on 6.3.2004. A person opened the door and disclosed this name as Akhilesh
Kumar Bajpai. The officers gave their introduction and also apprised him the
purpose of visit and asked him in writing if he desired his house to be
searched in presence of Gazetted Officer or a Magistrate which was his right.
But he declined in writing and offered search to be made by them. House was
searched in accordance with law and in presence of the independent witnesses.
During search of the house Jitendra Singh, Virendra Kumar and Govind Singh were
found to be present there. These three persons were separately given in writing
if they wanted to be searched before a Gazetted Officer or a Magistrate as it
was their right but they declined. On search of Virendra Kumar some papers were
recovered.
5.
Akhilesh
Kumar Bajpai told that this Charas was arranged by him to be sold through
appellant-Ratan Kumar Vishwas of Bharthana, District Etawah. He had given
Rs.20,000/- to Jitendra Kumar and Virendra Kumar to be given to Kamal of
Veerganj, Nepal, through Govind. Recovery memo was prepared at the house of Akhilesh
Kumar Bajpai and was signed by the witnesses and the officers as well as the
accused persons.
6.
The
statements of the accused persons under Section 67 of the Act were recorded and
they made their voluntary statement giving details about their involvement in
the trade of Charas. The seized Charas was sent to C.R.C., New Delhi for
chemical analysis through letter dated 6.3.2004 along with test memo affixing
specimen of the seal. The Chemical Examiner gave his report dated 25.5.2004 and
confirmed that the content of the samples was Charas. A detailed report about
search and seizure was submitted to the superior officer on 6.3.2004. The
Charas and the truck were deposited in the office of the Customs and Central
Excise, Sarvodaya Nagar, Kanpur.
7.
On
19.3.2004 the follow up action was conducted at the residential premises of
Ratan Kumar Vishwas at 42, Sarojni Road, Bharthana, District Etawah. But he was
found absconding and statement of his son was recorded under Section 67 of the
Act and he disclosed the phone number as 05680-225182 which was installed in
his house in the name of his father.
The summons for
appearance of Ratan Kumar Vishwas was also served on him. The copies of the
guest register of the City Hotel and Babarchi Hotel, Veerganj, Nepal were
obtained which were attested by the First Secretary, High Commission, Nepal and
it showed that Govind had stayed there on 21.2.2004. Call details of the phone
of Akhilesh Kumar Bajpai installed at his house were obtained from Mahanagar
Telephone Exchange. Details of the visitors registers from Manager, Mahalaxmi
Lodge were also obtained and they confirmed that Govind and Shambhu Prasad had
stayed in the Lodge from 29.2.2004 to 5.3.2004. Voluntary statement of Ratan
Kumar Vishwas was recorded under Section 67 of the Act on 19.4.2004 and he
admitted his involvement in illicit trade of Charas and that he was also aware
of the consignment and that he was also aware of the consignment of the Charas
transported by vehicle no.UHN 9137, which was seized by N.B.G., Varanasi on
5.3.2004 at Kanodia Auto Centre. He was also aware of the fact that Akhilesh
Kumar Bajpai was bringing the consignment of Charas for sale in Rajasthan
through him. Akhilesh Kumar Bajpai used to contact him on his phone no. 05680-225182
through his phone No.0512- 2616517. He also disclosed that he had given Rs. 1.5
lacs to Diwakar resident of Kidwai nagar for becoming a partner in the trade of
Charas and Diwakar purchased a Truck for supply of Charas from Nepal to Indore
and Rajasthan. Ratan Kumar Vishwas was arrested on 19.4.2004.
8.
After
completion of investigation charge sheet was filed. As accused persons abjured
guilt trial was held.
9.
To
further the prosecution version, witnesses were examined while one Rajesh Kumar
was examined as DW-3. As noted above, conviction was recorded and appeal has
been filed before the High Court.
10.
In
respect of the prayer for suspension of sentence and grant of bail the
preliminary stand was that the conviction is based on inadmissible evidence. It
was submitted that the appellant was not the owner and he was neither the
purchaser nor the seller and there was no recovery from him.
His conviction was
based only on the statement of co-accused. The High Court found that this was
not a case where the prayer for suspension of sentence is to be accepted.
Accordingly, the prayer was rejected.
11.
In
support of the appeal, the stand taken before the High Court was re-iterated.
Additionally, it was submitted that the statement purportedly was made on
19.4.2004 in respect of alleged incident dated 5.3.2004. On 22.4.2004 a
telegram was sent by DW-3 alleging that the appellant was tortured and false
confessional statement was recorded.
12.
Learned
counsel for the appellant has further submitted that the rigors of Section 37
of the Act cannot be applied to the present case after Section 32-A of the Act
was held to be ultra vires by this Court.
13.
In
response, learned counsel for the respondent submitted that the conviction is
based on the evidence of PWs 1, 2 and 3 in addition to the statement under
Section 67 of the Act. It is pointed out that the appellant was found
absconding and, therefore, the statement of his son was recorded under Section
67 of the Act. The telephone records were also verified and it was noted that
the involvement of the appellant was sufficiently established.
14.
It
is to be noted that in Dadu v. State of Maharashtra (2000 (8) SCC 437) it was
held that Section 32A was ultra vires to the extent it took away the powers
relatable to Section 389 of the Code of Criminal Procedure, 1973 (in short `the
Code') In Dadu's case (supra) it was held as follows :- "29.Under the
circumstances the writ petitions are disposed of by holding that :
(1) Section 32-A does
not in any way affect the powers of the authorities to grant parole.
9 (2) It is
unconstitutional to the extent it takes away the right of the court to suspend
the sentence of a convict under the Act.
(3) Nevertheless, a
sentence awarded under the Act can be suspended by the appellate court only and
strictly subject to the conditions spelt out in Section 37 of the Act, as dealt
with in this judgment."
15.
In
the said case it was clearly observed that a sentence awarded under the Act can
be suspended by the Appellate Court only and strictly subject to the conditions
as spelt out in Section 37 of the Act.
16.
To
deal with the menace of dangerous drugs flooding the market, Parliament has
provided that a person accused of offence under the Act should not be released
on bail during trial unless the mandatory conditions provided under Section 37
that there are reasonable grounds for holding that the accused is not guilty of
such office and that he is not likely to commit any offence while on bail are
satisfied. So far as the first condition is concerned, apparently the accused
has been found guilty and has been convicted. Section 37 of the Act reads as
follows :- "Offences to be cognizable and non-bailable- (1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974)- 10 (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 grant of bail."
17.
The
High Court has dealt with the factual position in great detail to conclude that
the parameters of Section 37 are not fulfilled to warrant grant of bail by
suspension of sentence. We find no reason to interfere in the matter. The High
Court is requested to dispose of the Criminal Appeal pending before it
expeditiously.
18.
Learned
Counsel for the appellant submitted that the appellant is ailing and needs
treatment. It is open to him to move the appropriate authorities for providing
such medical treatment as is needed.
19.
The
appeal fails and is dismissed.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
(C.K. THAKKER)
..........................................J.
(D.K. JAIN)
New
Delhi:
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