CRL OP/34232/2003 of 1. SARIJABANU (A) Vs STATE, INSPECTOR OF POLICE on 4 December 2003

:ORDER

An application for bail has been brought forth by these petitioners,who are shown as A-1 and A-2 respectively in a case registered by therespondent police under Sections 20(b)(ii)(c) and 25 of the Narcotic Drugs andPsychotropic Substances Act (herein after referred to as NDPS Act), whereinanother person, who is shown as A-3, is also accused of the offencespunishable under Sections 8(c), 20(b)(ii)(c) read with 27(A) of the NDPS Act.2. The case of the prosecution, as put forth before the Court below,is that the petitioners who are daughter and mother respectively, are A-1 andA-2, while A-3 is the Driver; and that A-1 and A-2 have committed offencespunishable under Sections 8(c) read with 20(b)(ii)(c) of the NDPS Act, while A-3 committed offences punishable under Sections 8(c), 20(b)(ii)(c) read with27(A) of the NDPS Act. On completion of the investigation, a final report hasalso been laid before the Court below.

3. As could be seen from the available materials, the gist of the case of the prosecution is as follows:

(a) On an information received by the respondent police on 10.7.2003at 10.00 P.M. the Hyundai Accent GLS Car of the first petitioner wasintercepted at Madurai Ring Road at Melamadai Junction at about 11.00 P.M.The car was driven by A-3. The first petitioner was found travelling in thecar. A search was made, wherein the Ganja weighing about 5 kgs. andRs.10,00,000/- in cash were recovered from the car. Neither the firstpetitioner nor the driver had any licence for possession of the said Ganja.The first petitioner was arrested at 11.15 p.m. on that day, when she made aconfessional statement to the respondent, pursuant to which 15 kgs. of Ganjaand a cash of Rs.30,00,000/- were recovered from the residential premises ofthe petitioners at No.4/1078-A, Bharath Street, Anbu Nagar, Madurai, at about1.15 A.M. on 11.7.2003. The second petitioner, who was present therein, wasarrested on 11.7.2003 at 1.15 A.M. Both the petitioners did not possess anylicence for keeping the said contraband, a narcotic substance. Both therecoveries were made in the presence of two independent witnesses under thecover of a mahazar. About 100 grams of the contraband seized from each of theplaces were taken for analysis.

(b) Pursuant to the confessional statement made by the secondpetitioner, the police party took the petitioners to Madras to a house in DoorNo.486/C, Second South Cross Street, Kabaleeswarar Nagar, Neelankarai, ananother residence of both the petitioners, wherein 10 kgs. of ganja and acash of Rs.1,00,18,000/- were produced by them, besides some item ofjewellery. Even for the said contraband also, they did not possess anylicence. The recovery was made in the presence of two independent witnessesunder a mahazar, and a search list was also prepared. Separate memos as tothe recovery effected at Madurai and Chennai respectively were sent to theDeputy Superintendent of Police, Tirupparankundram, Madurai and to theJudicial Magistrate, Alandur, Madras. All procedural formalities relating tothe arrest and recovery of the contraband were duly complied with by therespondent, and both the petitioners were taken to Madurai, and they wereproduced before the learned Judicial Magistrate No.I, Madurai, at 10.30 P.M.on 11.7.2003 and remanded to judicial custody.

4. Having failed in their attempt to obtain bail before the Court of Sessions meant for NDPS Act cases, the petitioners have brought forth therequest for bail before this Court.

5. The learned Senior Counsel Mr.Kapil Sibal, advancing his argumentson behalf of the petitioners for bail, made the following submissions:The respondent police party actually made a trespass into the house ofthe petitioners situated at Door No.A/1078-A Bharathi Street, Anbu Nagar,Madurai, on 9.7.2003 at about 6.00 a.m., and they were assaulted, and a searchwas made. The cell phones, pre-paid cards, photos, 3 diaries, R.C. Book,passport, etc., were removed. Then, they were taken to another house atMarudhu Pandian Street, Tahsildar Nagar, and extensive search was made. TheAccent Car parked outside their house opposite to Ultra College StudentsHostel, was seized by the police, and it was also brought to the ChatrapattiPolice Station. The petitioners were actually kept in illegal custody and severely tortured, and therefrom, on 10.7.2003, at about 10.30 P.M. thepetitioners were taken in a police van to their residence at No.486C, SecondSouth Cross Street, Second South Main Road, Kapaleeswarar Nagar, Neelankarai,Chennai, pursuant to which a search was conducted. The police officer seizedall the jewellery belonging to the petitioners, including the photographs. Atthat time one Cook by name Ramaswamy was very well available. Thereafter, thepetitioners were brought back to Madurai, at about 10.30 p.m., produced beforethe Judicial Magistrate No.I, Madurai, and remanded. While so, theprosecution has come forward with a false case as referred to in the chargesheet.

6. Added further the learned Senior Counsel for the petitioners that the movement of the petitioners were restricted from 6.00 a.m. on 9.7.2003,and they were in the custody of the police therefrom. They were tortured andill-treated by the police. The case of the prosecution that the Accent Carwas intercepted; that 5 kgs. of ganja and currency amount of Rs.10,00,000/were seized; that the first petitioner has given a confessionalstatement; that the driver was arrested by 2315 hours; that 15 kgs. of ganjain a gunny bag and 5 kgs. of ganja in a bag and currency of Rs.30,00,000/-were seized from the house of the petitioners at Anbu Nagar, Madurai; and thatthe second petitioner was arrested, are all false. The further case of theprosecution that 10 kgs. of ganja and currency of Rs.1,00,18,000/- wererecovered from the house of the petitioners at Neelankarai, Madras, is alsofalse. No ganja was seized either from her car or the house at Madurai or atthe house at Neelankarai. There was no occasion to seize ganja as put forthby the prosecution.

7. According to the learned Senior Counsel, the following are the circumstances which stand in favour of the petitioners:

(i) There is discrepancy in the alleged recovery of the contraband ganja, as evidenced by the seizer mahazar, Form 95, F.I.R., remand report andForm 91.

(ii) As per F.I.R. 5 kgs. of ganja was said to have been recovered from the car, and 20 kgs. of ganja (15 kgs. in a gunny bag and 5 kgs. in abag) was said to have been recovered from the house at Anbu Nagar. As per theremand report and Form 91, 10 kgs. of ganja was said to have been recoveredfrom the Neelankarai House, Madras, and thus, the total recovery is 35 kgs.of ganja, according to the prosecution. As per the list of properties sent tothe Magistrate in Form 91, the total contraband has been shown as 30 kgs. andnot 35 kgs.

(iii) Form 91 in respect of the recovery of ganja from the house at Anbu Nagar refers to only 15 kgs. and not 15 + 5 kgs. The recovery of 5 kgs.of ganja in a bag was not forwarded to the Magistrate as per Form 91, eventhough the said 5 kgs., according to the F.I.R., was found at Anbu Nagar in abag.

(iv) Form 98 in respect of the search conducted at the house at Anbu Nagar, Madurai, shows that the quantity of ganja alleged to have been seizedin that house, has not been specified. The list showing ' recovered item'does not mention any quantity.

(v) When we look into the Serial Number given in Form 98 search list, they are not in order, but would differ, and the same would indicate thefalsity of the case of the prosecution.

(vi) Even as to the search and the preparation of seizure mahazar, theprocedure prescribed either under the Cr.P.C. or under the NDPS Act has notbeen strictly followed.(vii) One woman Inspector of Police has been a witness. She cannot bean independent witness.

(viii) Apart from the above, two witnesses, who, according to theprosecution, are independent witnesses, are not independent witnesses, sincethey have been present at both the places at the time of the interception ofthe car and also at the time of the search of the house.

(ix) A police officer, who has been a part and parcel of the team,cannot be a witness to the same.

(x) The Athatchi, if looked into, would clearly show that the Inspector has not signed the same at the place and time, when it was prepared,according to the prosecution. This would clearly falsify the seizure of ganjaand arrest of the petitioners.

(xi) There has been a clear violation of Sections 42, 50, 52 and 57 ofthe NDPS Act. It would clearly be indicative of the fact that the case is afalse one.

(xii) There are sufficient circumstances to indicate not only theviolation of the mandatory provisions, but also a false case that has beenfoisted against them.

8. The learned Senior Counsel in his further argument would submitthat the constitutional provision as to the production of the accused within24 hours from the time of arrest has been violated, and it is a case, wherethe guidelines postulated by the Apex Court in D.K. BASU VS. STATE OF WESTBENGAL (AIR 1997 SC 610) have not been strictly followed. This would clearlyshow that there was illegal arrest and detention, and it is also humanlyimpossible that the petitioners, after the search was made at Madurai, havebeen brought to Madras, which is situated 500 kms. away, and have been takenback to Madurai and produced before the Magistrate within 24 hours. Theconfessional statement alleged to have been given either by the firstpetitioner or by the second petitioner is nothing but a cooked up affair, inorder to suit the convenience of the prosecution case. Had it been true thata F.I.R. came to be registered at 0330 hours on 11.7.2003, there could nothave been any impediment for the police agency to produce the petitionersbefore the Magistrate at Madurai. There was no necessity for taking thepetitioners along with the contraband to Madras, where they made the search.In the face of the violation of not only the provisions of Cr.P.C. but alsothe provisions of NDPS Act, it cannot be stated that there is a prima faciecase in favour of the prosecution. While there are violations of mandatoryprovisions of the NDPS Act namely Sections 42 to 57, the limitations containedin Sec.37 of the NDPS Act, cannot be made applicable. Since the prosecutionhas failed to comply with the mandatory provisions, as postulated under theAct, it would be suffice to grant bail. Therefore, the petitioners areentitled for bail.

9. In answer to the above contentions, the learned Public ProsecutorMr.I.Subramanian has made the following submissions:

The contentions put forth by the petitioners are of no avail, sincethe prosecution has brought forth a prima facie case to the notice of theCourt. Sec.37 of the Act would make it abundantly clear that unless and until

the conditions what have been brought forth therein, prevail, no bail could begranted. In this case, there was an interception of the first petitioner, whowas coming in a car, and in the presence of two witnesses 5 kgs. of ganja anda cash of Rs.10,00,000/- were recovered. She has given a confessionalstatement, pursuant to which, her house at Anbu Nagar, Madurai, was searched,where A-2 was present, and 15 kgs. of ganja and a cash of Rs.30,00,000/- wererecovered under a mahazar. Subsequently, pursuant to the confessionalstatement given by A-2, they were taken to Madras, and their house atNeelankarai was searched in the presence of two independent witnesses, and 10kgs. of ganja and a cash of Rs.1,00,18,000/- were also recovered. It is notcorrect on the part of the petitioners to state that violations of provisionseither under Cr.P.C. or under NDPS Act have taken place. At the time ofarrest and preparation of recovery mahazar, two independent witnesses werepresent, and all the recovered ganja and amounts were produced before theJudicial Magistrate concerned on 11.7.2003. It is not correct to state thatthe procedural formalities as per the mandates under Sections 42 to 57 of theAct have not been complied with, since all the documentary evidence have beenproduced before the Court. Even assuming that there are discrepancies, theprosecution has got its time to explain the same, and it would be too earlyfor the petitioners to state that there has been a violation of theconstitutional provisions. The contention of the petitioners' side that theywere detained illegally and subjected to torture is nothing but a myth, sinceat the time when they were produced before the Judicial Magistrate, not evenone complaint was made before the Magistrate at the earliest point of time.It would clearly indicate that they are all inventions for the purpose ofbail. In the instant case, though the petitioners have come forward to statethat the contraband was planted, nowhere they have stated that at whatjuncture and how the said contraband was planted. That part, it is not indispute that a huge sum of Rs.1,40,18,000/- was recovered from the car of thefirst petitioner and from the houses of the petitioners both at Madurai andNeelankarai. At the time when it was produced before the Court, anapplication was filed by the Income Tax authorities to return the said amount,to which a detailed objection was filed by the petitioners, in which nowherethey have stated that it is not their money, or they do not make any claim.But, they come forward to deny the same, which would clearly indicate that atthat point of time, they had the desire to claim the money as theirs. Whenthe matter was taken up by this Court, they have brought forth two affidavitsby two third parties. It is pertinent to point out that the first petitionerhas filed an affidavit before this Court, and even in that affidavit, she hasnot stated that it is not her money, and thus, it would be clear that theywant to take their hold on this Rs.1,40,18,000/-. The prosecution has comeforward with the specific case to state that there is an inference that thismoney has come to the hands of the petitioners only by way of illegaltrafficking in this narcotic drugs and Psychotropic substances, and it is forthe prosecution to prove the same at the time of trial. An application underSec.173(8) Cr.P.C. has been filed before the lower Court seeking permissionfor further investigation. Under the circumstances, it would be too early tosay that the prosecution has no specific case in that regard. It is true thatthere are certain discrepancies noticed in the documents filed. But, theprosecution has got its opportunity to explain the same at the time of trial.10. The learned Public Prosecutor made a full caution that there are

limitations available under Sec.37 of the Act, which have got to be lookedinto, and would submit that it is not a case, where it can be held at thisstage as to whether sufficient materials are available and as to whether thepetitioners were not guilty of the offences, and unless and until thepetitioners are able to show that there are not guilty of the offences, theyare not entitled for bail. Hence, the bail application has got to bedismissed.

11. The Court paid its full attention on the submissions made and had a thorough scrutiny of the entire materials placed before it.

12. As could be seen above, the gist of the prosecution case is thatthe car of the first petitioner was intercepted on 10.7.2003 at 11.00 p.m. atMadurai Ring Road at Melamadai Junction, when the car was being driven by thethird accused, and ganja weighing 5 kgs. and a cash of Rs.10,00,000/- wereseized under a mahazar. Pursuant to the confessional statement by the firstpetitioner, their house at Anbu Nagar, Madurai, was searched, and ganjaweighing 15 kgs. and a cash of Rs.30,00,000/- were recovered. Pursuant tothe confessional statement made by the second petitioner, they were taken toMadras, where their house at Neelankarai was searched and 10 kgs. of ganjaand a cash of Rs.1,00,18,000/- were recovered. Thus, the prosecution has comeforward to state that the petitioners 1 and 2 were in possession of 35 kgs.of ganja, a commercial quantity and Rs.1,40,18,000/- in total. A perusal ofthe available materials would clearly indicate that at the time of preparationof seizure mahazar, three witnesses have attested, out of whom, two areindependent witnesses. It is true that one of the witnesses is a PoliceOfficer. The statements of both the independent witnesses have been recorded.It is pertinent to point out that the confessional statements given by thepetitioners have been recorded by the police. Now, in a case like this, wheresuch a huge quantity of ganja has been seized and produced before the lowerCourt, the Court has to necessarily take into consideration the provisions ofSec.37 of the NDPS Act. Under the circumstances, it would be more appropriateto reproduce Sec.37 of the NDPS Act, which runs as follows:

"37. Offences to be cognizable and non-bailable:-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973

(2 of 1974),-

(a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19or section 24 or section 27A and also for offences involving commercialquantity shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose theapplication for such release, and

(ii) where the Public Prosecutor opposes the application, the court issatisfied that there are reasonable grounds for believing that he is notguilty of such offence and that he is not likely to commit any offence whileon 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 granting ofbail."

13. A very reading of the provision would clearly indicate that thesheet anchor is that bail could be granted only in cases where there was no prima facie case against the accused. Sec.37 of the Act disallows the grantof bail, where there is a prima facie case made out. In the instant case, thetrial Court in its first breath has found that there exists prima faciematerials and has disallowed the request of the petitioners. It has got to bekept in harmony with the provisions under Sec.37. Making a deviationtherefrom and granting bail would be nothing but betraying the essence ofSec.37. The expression 'grounds' in Sec.37 would mean the materials,inclusive of the conclusions of the available facts deducible from thesurrounding circumstances of a given case. The words 'not guilty' employed inthe said provision would only mean 'not likely to be held guilty at thetrial'.

14. It would be more appropriate and advantageous to set out thejudicial pronouncements of the Apex Court in the following three cases,wherein the Apex Court has made expressions of the rigor of Sec.37 of the NDPSAct.

(I) It has been held in BABUA ALIAS TAZMUL HOSSAIN VS. STATE OFORISSA (2001 CRI.L.J. 1169) as follows:

"The other aspect to be borne in mind is that the liberty of a citizen has gotto be balanced with the interest of the society. In cases where narcoticdrugs and psychotropic substances are involved, the accused would indulge inactivities which are lethal to the society. Therefore, it would certainly bein the interest of the society to keep such persons behind bars during thependency of the proceedings before the Court and the validity of Section37(1)(b) having been upheld, we cannot take any other view."

(II) In STATE OF M.P. VS. KAJAD (2001) 7 SUPREME COURT CASES 673, ithas been held thus:

"For granting the bail the court must, on the basis of the record producedbefore it, be satisfied that there are reasonable grounds for believing thatthe accused is not guilty of the offences with which he is charged and furtherthat he is not likely to commit any offence while on bail. It has further tobe noticed that the conditions for granting the bail, specified in clause (b)of sub-section (1) of Section 37 are in addition to the limitations providedunder the Code of Criminal Procedure or any other law for the time being inforce regulating the grant of bail. Liberal approach in the matter of bailunder the Act is uncalled for."

(III) In SUPDT., NARCOTICS CENTRAL BUREAU, CHENNAI VS. R.PAULSAMY (2001 CRI.L.J. 117), the Apex Court has held thus:

"In the light of Section 37 no accused can be released on bail when theapplication is opposed by the public prosecutor unless the Court is satisfiedthat there are reasonable grounds for believing that he is not guilty of suchoffences and that he is not likely to commit any offence while on bail.Adopting the exceptional course of granting bail to an accused involved in theoffence under NDPS Act on ground that there was prima facie violation ofSection 52 and there was prima facie non-compliance with Section 57 of theAct, was not proper. Compliance of Ss.52 and 57 is matter which could beestablished only at the trial and could not be prejudged at the stage ofconsideration for bail. The minimum which the lower Court should have takeninto account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only duringevidence and not merely saying that no document has been produced before theCourt during bail stage regarding the compliance of the formalities mentionedin those two sections. The lower Court even had not recorded a finding interms of Section 37 of the Act which is sine qua non for granting bail to anaccused involved in the offence under the Act."

From the very reading of the above decisions, it would be abundantly clearthat it is for the accused to show that they are not likely to be held guiltyat the trial.

15. In the instant case, the prime contention of the petitioners'

side is that the mandatory provisions under Sections 42 to 57 of the NDPS Acthave been violated. In view of the aforesaid decisions of the Apex Court, itcan be well stated that it is too early to consider whether the mandatoryprovisions have been violated. They have got to be properly considered anddecided at the time of trial, when the parties have got an opportunity to leadevidence both oral and documentary before the trial Court, and not at thisstage. In the instant case, a detailed counter has been filed, and the bailapplication has been seriously opposed by the prosecution. The propositioncanvassed on the basis of judicial consensus and other salutary considerationsbearing in mind the object and scheme of the Act, is that the procedurallapses are not to be overplayed when prayer for bail is considered. Hence,the contention put forth by the petitioners' side that there has beenviolation of the mandatory provisions of the NDPS Act does not require anyconsideration at this stage.

16. The next contention that the petitioners were subjected to illtreatment and harassment, cannot also be countenanced, for the simplereason that when they were produced before the Judicial Magistrate, they havenot complained of anything. Why not done so, no explanation is coming forthfrom the petitioners' side.

17. On perusal of the entire materials on hand, the Court is of theconsidered view that the following circumstances stand against thepetitioners:

(a) While making the bail application before this Court, the petitioners have come with a specific averment stating that the firstpetitioner is a post-graduate in Information Technology, and she has recentlycleared IAS preliminary examination, and she is to go for final examination inIAS in 2003. A statement given by the first petitioner before this Courtwould clearly reveal that she is yet to come out of graduation, and thus, itwas a false averment made in the application. At best, it can be well statedthat the first petitioner has made a false assertion in order to get bail.(b) It is not in dispute that Rs.1,40,18,000/- has been recovered fromthe petitioners. It is contended by the prosecution that this amount came tobe possessed by the petitioners by way of illicit trafficking in the narcoticdrugs and Psychotropic substances. It is true that no material has beensecured by the prosecution at the time of the investigation. It is pertinentto note that when an application was filed by the Income Tax Departmentpraying that the amount was to be returned to the Department, since it was onewithout any source, shown by the parties, a detailed objection was put forthby the petitioners herein. A perusal of the objection, filed before the trialCourt, would clearly indicate that nowhere the petitioners have stated that itis not their money.

(c) It is not in dispute that the petitioners were not employed, and they had got pension of the husband of the second petitioner and alsoRs.5,000/- from the brother of the first petitioner. Except this, no sourceof income is shown by them. Under such circumstances, the petitioners had noexplanation to offer before the lower Court how they came into custody ofRs.1,40,18,000/-.

(d) The learned Counsel for the petitioners brought to the notice ofthe Court that two affidavits have been filed at this stage by two independentparties that the money belonged to them. It remains to be stated that in thecourse of the affidavit filed by the first petitioner before this Court,nowhere she has whispered that it is not her money. All would go to show thatin respect of the amount what has been secured, no explanation is broughtforth. Hence, the Court is able to see some force in the contention put forthby the prosecution that their inference had some reason to be believed.(e) Had it been true that the petitioners were tortured at the time ofthe police custody, what prevented them from making any complaint before theJudicial Magistrate at the earliest opportunity, no explanation comes forth.(f) While the prosecution comes with the specific case that 35 kgs.of ganja has been recovered from them and while the petitioners come forwardwith the case to state that it was planted, at what juncture, where and howsuch a huge quantity was pla remain unexplained. On the contrary, theprosecution has got two independent witnesses to be examined at the time oftrial, as to how they were found in possession of the same and also as to itsseizure from them.

18. In the face of the above, at no stretch of imagination it can bestated that there is no prima facie case, and in view of the rigor of law asstipulated under Sec.37 of the Act, it cannot be held that they are notguilty. As could be seen from Sec.37 of the Act, two conditions have got tobe satisfied for grant of bail. Firstly that there must be reasonable groundsfor believing that he is not guilty of such offence, and secondly that he isnot likely to commit any offence while on bail. It is true that in theinstant case, no antecedents of the petitioners involving drug trafficking orany offence is brought to the notice of the Court; and that they havepermanent residence. But, at the same time, while there is prima facie casethat has been brought forth to the notice of the Court, the complaining ofviolations of the mandatory provisions has got to be tested at the time oftrial, and it would be too early to hold that they are not guilty of suchoffence, since the facts and circumstances do not warrant to hold so. Hence,all the above things have g ot to be testified at the time of trial.

19. Whenever there is a conflict of interest between individual liberty and the interest of the society, the paramount importance must be onthe interest of the society and not on the individual liberty. The Court isof the firm view that the contentions put forth by the petitioners' side donot merit acceptance by the Court, and they are not entitled for bail.Therefore, this petition is liable to be dismissed.

20. While dismissing the petition, since the petitioners are in incarceration from 11.7.2003, the Court feels that the trial has got to beconducted expeditiously, and the case has got to be disposed of within a timeframe. Hence, the lower Court is directed to frame the necessary charges,conduct the trial and dispose of the case in accordance with law, within aperiod of 60 days herefrom. If there is any delay caused by the prosecution side, the petitioners are at liberty to move this Court for appropriate reliefat that juncture. The respondent is directed to transfer the first petitionerfrom the Government Ladies Reception Home, Mylapore, Chennai, to the Central

Prison ( Women Cell), Trichy, immediately.21. With the above directions, this criminal original petition isdismissed.Index: yesInternet: yes 4-12-2003Note to Office:Issue order copyon 5-12-2003, and return theconcerned C.D. File to thePublic Prosecutor.

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