BAIL APPLN./13/2021 of Ganesh Sharma alias Gelal Vs State of Sikkim on 3 December 2021

1. This is a second bail application moved under section 439 read with section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) by the applicant. It is being considered before issuance of notice upon the respondent, however, Mr. Yadev Sharma, Additional Public Prosecutor, is present on advance notice and opposes the application.

2. Earlier, this court had vide judgment dated 25.01.2021 in Bail Application No. 12 of 2020 (Ganesh Sharma @ Gelal vs. State of Sikkim), rejected a similar bail application moved by the applicant. While doing so, this court had examined the provision of section 18 of the Sikkim Anti Drugs Act, 2006 and arrived at a conclusion that it is in pari-materia to section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985. This court had also examined the judgments of the Supreme Court in Narcotics Control Bureau vs. Kishan Lal & Ors.[1], Intelligence Officer, Narcotics C. Bureau v. Sambhu Sonkar & Anr.[2], Narcotics Control Bureau vs. Dilip Pralhad Namade[3]and Collector of Customs, New Delhi vs. Ahmadalieva Nodira[4]. While examining the facts of the case for the limited extent of examining whether or not to grant bail to the applicant, this court had also recorded the following at paragraphs 16 and 17. The same is reproduced below:- “16. The records reveal that the learned Special Judge having found prima facie materials against the applicant framed charges under the SADA, 2006 and the IPC. The order framing charge is not under challenge. The materials placed before this court are materials filed along with the charge sheet. It reveals, prima facie, that Sandeep Chettri (accused no.1) was apprehended on 09.06.2020 while driving a truck at the Rangpo boarder check post and during his search and seizure various controlled substances were recovered. The 1(1991) 1 SCC 705

2(2001) 2 SCC 562

3(2004) 3 SCC 619

4(2004) SCC (Cri) 834

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controlled substances were accordingly seized. It is the case of the prosecution that during this time the applicant constantly called Sandeep Chettri (accused no.1) from his phone no ([REDACTED]) informing him that he was coming to receive the consignment of controlled substances in his vehicle. According to the prosecution he was thereafter, apprehended at IBM, Rangpo after a team was dispatched. Besides the statements of the two seizure witnesses as pointed out by Mr. Rahul Rathi the statement of the complainant also implicates the applicant for the commission of the alleged offence. The words “reasonable grounds” under Section 18 of the SADA, 2006 would have same meaning as has been explained by the Supreme Court vis-à-vis Section 37 of the NDPS Act, 1985. It would connote substantial probable cause for believing that the accused is not guilty of the offences charged and that this reasonable belief contemplated in turn would point to the existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

17. This court has examined the materials which were placed before the learned Special Judge along with the charge sheet and the probable evidence which are required to be tested during trial. None of the materials placed would point to the existence of any facts or circumstances sufficient in themselves to justify the satisfaction that the applicant is not guilty of the offence charged. Contravention of Section 9(1)(c) and Section 9(4) of SADA, 2006 entails punishment of rigorous imprisonment which shall not be less than 10 years but may extend to 14 years. Therefore, in due consideration of the provisions of Section 439 and Section 18 of the SADA 2006, the materials against the applicant and the offences alleged to have been committed by the applicant this court is of the considered view that bail sought for by the applicant cannot be granted. The application is accordingly rejected.”

3. Mr. Rahul Rathi, learned counsel for the applicant, had taken this court to the various depositions which have now been recorded by the learned trial court in the matter. It is his submission that due to the fact that various prosecution witnesses have been examined there is a change in circumstances and therefore, the applicant be granted bail. It is his further submission that if one was to examine the evidence of the witnesses, it would show that the applicant would be entitled to an acquittal.

4. According to the applicant, as of now, five witnesses have been examined. On examination of the evidence of Ongchyo Bhutia (PW-3), it is quite evident that what was alleged by the prosecution has been reiterated in the deposition of Ongchyo Bhutia (PW-3) that the applicant had been constantly calling the accused no.1 informing him that he was coming to receive the consignment. Although Mr. Rathi desired that this court examine

the other depositions as well as the cross-examinations, it may not be correct to examine the effect of the depositions of the five witnesses as depositions of the other witnesses are yet to be recorded and any opinion by the court on it, at this stage, may affect the final decision of the learned trial court. Suffice it to say that at this stage the depositions placed before this court does not connote substantial probable cause for believing that the applicant is not guilty of the offences charged.

5. The application for bail is rejected and disposed of accordingly with a request to the learned Special Judge to try and complete the trial as soon as possible.

( Bhaskar Raj Pradhan ) Judge