THE HIGH COURT OF SIKKIM : GANGTOK

(Criminal Jurisdiction)

DATED : 26

th

MAY, 2020

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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

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Bail Appln. No.03 of 2020

Petitioner/Accused : Dharmaan Rai

versus

Respondent : State of Sikkim

Petition under Section 439 of the

Code of Criminal Procedure, 1973

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Appearance

Mr. Leonard Gurung and Ms. Rachhitta Rai , Advocates for the

Petitioner/Accused.

Mr. Yadev Sharma, Additional Public Prosecutor and Mr. Sujan

Sunwar, Assistant Public Prosecutor for the State-Respondent.

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O R D E R

Meenakshi Madan Rai, J.

1. The Petitioner, aged about 55 years, seeks to be

enlarged on bail having been arrested in connection with Melli

P.S. Case No.9/2020, dated 12-04-2020, under Section 7/9/14

of the Sikkim Anti Drugs Act, 2006 (for short, “SADA, 200 6”)

read with Section 7(1)(c)/7(4) [sic] of the Sikkim Anti Drugs

(Amendment) Act, 2017.

2. During the course of hearing Learned Counsel for

the Petitioner canvassed the contention that the Petitioner has

been falsely implicated in the instant matter with no proof

whatsoever of his complicity in the offence, save the statement

of the truck driver, who is also arrayed as an accused, stating

Bail Appln. No.03 of 2020 2

Dharmaan Rai vs. State of Sikkim

that a total of 598 bottles of Cough Syrup of various brands,

recovered and seized from the truck driven by him, belonged to

the Petitioner and had been transported in his truck on the

Petitioner’s request. That, neither the controlled substances

were seized from the possession of the Petitioner nor is there

any other evidence to establish that the Petitioner had

requested the truck driver to transport the controlled

substances for him, besides which no proof emanates as to the

use or sale of the controlled substances by the Petitioner.

That, the Petitioner was arrested from “Melli” although the

driver had allegedly informed the Police that the Petitioner

would be waiting for the alleged consignment of controlled

substances near “Rolu” temple, which is however situated

between Melli and Jorethang, South Sikkim, thereby revealing

the falsity of the driver’s statement and the Prosecution case,

while the Petitioner is completely innocent. The Petitioner is

infact a well known and respected permanent resident of

Daragaon, Jorethang, South Sikkim and has been falsely

implicated sans grounds by the Prosecution. Owing to his

permanent residence in Sikkim the question of him absconding

does not arise neither does he intend to tamper with the

Prosecution evidence or the witnesses. He undertakes to

cooperate with the Investigating Agency and to appear before

the Investigating Officer as and when required and in Court at

the time of trial. That, this Court may take into consideration

that the Petitioner is depressive and a patient of vertigo as

fortified by the Medical Certificate, Annexure 7, issued by Dr.

Bail Appln. No.03 of 2020 3

Dharmaan Rai vs. State of Sikkim

Subhash Tamang, ENT, Head and Neck Surgery, District

Hospital, Namchi, South Sikkim. That, the owner of the truck

was never arrested to examine his involvement , while the

Petitioner has been wrongly arrested. That, in view of the

grounds put forth the Petitioner be enlarged on furnishing bail,

on any condition as deemed appropriate by this Court. In

support of his submissions, Learned Counsel relied on the ratio

of Sanjay Chandra vs. Central Bureau of Investigation

1

, Prakash

Kumar alias Prakash Bhutto vs. State of Gujarat

2

, Pancho vs. State

of Haryana

3

, Dataram Singh vs. State of Uttar Pradesh and

Another

4

, Union of India vs. Niyazuddin Sk. and Another

5

, State of

Kerala etc. vs. Rajesh etc.

6

, Rupa Gurung vs. State of Sikkim

7

.

3. Learned Additional Public Prosecutor while

repudiating the contentions of Learned Counsel for the

Petitioner submitted that the accused was indeed arrested on

the basis of the statement of the driver of the truck, the

accused No.1 in the instant matter , who divulged that the

Petitioner had requested him to bring the bottles of Cough

Syrup, which are controlled substances in terms of the SADA,

2006. That, the First Information Report also reveals that on

recovery of the controlled substances valid bills could not be

furnished by the driver, who then ma de the aforestated

revelation adding that the Petitioner would be waiting for him

1

(2012) 1 SCC 40

2

(2007) 4 SCC 266

3

(2011) 10 SCC 165

4

(2018) 3 SCC 22

5

(2018) 13 SCC 738

6

2020 SCC OnLine SC 81

7

2020 SCC OnLine Sikk 20 (Bail Appln. No.02 of 2020)

Bail Appln. No.03 of 2020 4

Dharmaan Rai vs. State of Sikkim

near Rolu Temple, in his vehicle, to receive the consignment of

controlled substances. That, on the basis of such revelation

the Police team went towards Rolu Temple and intercepted the

Petitioner with his vehicle at a bridge before the said Temple.

The question of arresting the owner is ruled out as he is not

involved in the offence. As the controlled substances are large

in number, should the accused be enlarged on bail there is

every likelihood that he will tamper with the evidence as

admittedly he is an influential person in the locality. That, the

Petitioner has criminal antecedents having in the past been

involved in a rioting case under the jurisdiction of the Jorethang

Police Station and later in Hingdam Police Station case also for

a similar offence. Hence, considering his antecedents his

involvement in the offence is a foregone conclusion. That, the

investigation is still underway and enlarging the Petitioner on

bail at this stage would prejudice the Prosecution case.

Besides, the menace of drug peddling has to be curbed in the

State and on these grounds, the Petition for bail deserves a

dismissal. To augment his submissions, Learned Additional

Public Prosecutor relied on Nabin Manger vs. State of Sikkim

8

.

4. I have heard in extenso the rival contentions of

Learned Counsel and the citations placed at the Bar have been

carefully perused. I have also perused carefully the documents

furnished before me.

8

SLR (2018) Sikkim 1454 : MANU/SI/0078/2018 (Bail Appln. No.03 of 2018)

Bail Appln. No.03 of 2020 5

Dharmaan Rai vs. State of Sikkim

5. The FIR was lodged by Sub-Inspector (SI) Prashant

Rai of the Melli P.S. on 12-04-2020, before the Station House

Office Melli Police Station on 12-04-2020, a wireless signal

having been received from the Assistant Sub-Inspector

deployed at the Melli Check Post on 11-04-2020 at around 2245

hours informing him that on checking of the incoming and

outgoing vehicles at Melli Check Post the ASI had intercepted

truck bearing registration No.SK 04 D 0092 along with the

driver. Bottles of Cough Syrup were discovered concealed in

the storage compartment above the driver’s seat. The SI

reached the Melli Check Post and the vehicle was searched in

terms of the legal provisions laid down in the SADA, 2006 which

led to the recovery of 10 bottles of 100 ml. Rexdryl Cough

Syrup and 588 bottles of 100 ml. each of Ownrex Cough Syrup,

concealed inside four sacks of rice. Pursuant to the said

recovery the driver divulged the involvement of the Petitioner.

The Arrest Memo indicates that the Petitioner was booked

under Section 7/9/14 of the SADA, 2006 read with Section

7(1)(c)/7(4) of the Sikkim Anti Drugs (Amendment) Act, 2017.

6. Pausing here momentarily, it is necessary to clarify

that Section 7 of the SADA, 2006, reads as follows;

“CHAPTER III

PROHIBITION, CONTROL AND RE GULATION

Prohibition of certain operations 7. No person shall –

(a) sale, stock for sale or trade in any

controlled substance; or

(b) transport either inter-State or

intra-State any controlled substance,

Bail Appln. No.03 of 2020 6

Dharmaan Rai vs. State of Sikkim

Without a valid license under the Drugs

and Cosmetics Act, 1940 or Sikkim Trade

License Act:

Provided that, and subject to the other

provisions of the Act and the rules made

thereunder, the possession of verifiable

quantities, as prescribed in the rules of

controlled substances for medicinal purposes

with a valid prescription, or for a legal use of

the substance, shall be permissible:

Provided further that the amount of

controlled substance in possession shall not be

beyond the limit prescribed in prescription

slip/card, or in cases of other substances other

than drugs, the amount permissible shall be

proportionate to its purported use.”

7. By the Sikkim Anti Drugs (Amendment) Act, 2017,

in Chapter IV pertaining to Offences and Penalties, Section 9

which deals with punishment for contravention of controlled

substances, of the SADA, 2006, came to be substituted by the

following;

Substitution

of Section 9

7. In the Principal Act, for Section 9, the following

Section shall be substituted, namely:-

“9.(1) Whoever, in contravention of any provision

of this Act or any rule or order made

thereunder, manufactures, possesses, sells,

purchases, transports, imports inter-State,

exports inter-State or uses,-

(a) where the contravention involves small

quantity, with rigorous imprisonment

for a term which shall not be less than

two years but may extend to five

years and shall also be liable to pay

fine which shall not be less than

twenty thousand rupees but may

extend to fifty thousand rupees;

(b) where the contravention involves large

quantity, with rigorous imprisonment

for a term which shall not be less than

seven years but may extend to ten

years and shall also be liable to pay

fine which shall not be less than fifty

thousand rupees but may extend to

one lakh rupees;

(c) where the contr avention involves

commercial quantity, with rigorous

imprisonment which shall not be less

than ten years but may extend to

fourteen years and shall also be liable

to pay fine which shall not be less than

Bail Appln. No.03 of 2020 7

Dharmaan Rai vs. State of Sikkim

one lakh rupees but may extend to

two lakh rupees.

(2) ……………………………………………………………………..

(3) ……………………………………………………………………..

(4) Where the contravention involves a person

using a mode of transport or any other form

of conveyance, either inter-State or intra-

State, such person shall be liable to

imprisonment for a term which shall not be

less than ten years but which may extend

to fourteen years and shall also be liable to

fine which shall not be less than one lakh

but may extend to ten lakhs rupees and the

conveyance as used, shall be liable to be

seized and confiscated, which may be

released on payment in the following

manner:-

(a) Heavy motor vehicle – Rupees two lakhs

(b) Light motor vehicle – Rupees one lakh

(c) Two-or-three wheeled – Rupees fifty

thousand

(d) Any other form of conveyance –

Rupees twenty-five thousand

(5) …………………………………………………………………….. ”

8. During the substitution of Section 9 made vide the

Act of 21 of 2017 with effect from 19-09-2017, it is seen that

the numerical 7 appears a little above the substituted Section

9. In this regard, it appears that there is some confusion in

the Arrest and Surrender Memo pertaining to the Section under

which the Petitioner was booked, viz., Section 7/9/14 of the

SADA, 2006, read with Section 7(1)(c)/7(4) of the Sikkim Anti

Drugs (Amendment) Act 2017. The numerical 7 above the

Section 9 does not denote a Section, viz., 7, but is the serial

number inserted to indicate the substitution of Section 9 by the

said amending Act. Infact, there is no Section 7(1)(c) or

Section 7(4) for the reasons enumerated hereinabove and

ought to be read as Section 9 and its Sub -Sections, the

Bail Appln. No.03 of 2020 8

Dharmaan Rai vs. State of Sikkim

amending Act of 2017 having substituted Section 9 and not

Section 7. The air having been cleared on this aspect, I

proceed to examine the matter at hand.

9. Admittedly, the Petitioner was arrested on the

seizure of the controlled substances having been made from

the truck bearing No.SK 04 D 0092 , driven by one Bimal

Gurung, also arrayed as an accused in the Melli P.S. Case

(supra). Admittedly, the truck in which the controlled

substances were carried did not belong to the said accused

driver nor to the Petitioner herein. It is also admitted by the

Prosecution that the owner of the truck was not arrested, his

complicity in the offence having been ruled out. On careful

examination of the records placed before this Court and the

submissions made by the Prosecution , no proof whatsoever

emanates at this stage to establish that the consignment was

ordered by the accused as allegedly disclosed by the driver

Bimal Gurung nor recovery of any articles made from the

possession of the Petitioner on his arrest. This is apparent also

from Annexure 2, the Arrest/Court Surrender Memo pertaining

to the arrest of the Petitioner which fails to disclose recovery of

any articles from the Petitioner much less the controlled

substances. All that the Prosecution is relying on after more

than a month and two weeks of investigation is the statement

of the driver that the Petitioner had asked him to bring the

controlled substances. The FIR mentions that, according to the

driver, the Petitioner was waiting at “Rolu Temple” for the

consignment of controlled substances being transported in the

Bail Appln. No.03 of 2020 9

Dharmaan Rai vs. State of Sikkim

truck and consequent upon such revelation the Police team was

immediately despatched towards Rolu, who successfully

intercepted the Petitioner and his vehicle at a pucca bridge just

before the Rolu temple. However, a careful perusal of the

Arrest Memo reveals no such details which infact records that

the Petitioner was arrested at 0240 hours at “Melli” after the

FIR was lodged at 2245 hours and the driver arrested at 0155

hours. The Arrest Memo does not mention that the Rolu

Temple is situated at Melli and the Prosecution on clarification

sought by this Court, admits that Melli is in a different location,

while the Rolu Temple is located elsewhere and not in Melli. It

was also the specific plea of the Prosecution that the

investigation is still being conducted in the matter and should

he be enlarged on bail, the Petitioner is likely to tamper with

evidence. While considering this aspect, it is worth noticing

that the controlled substances post recovery have already been

seized by the Police and remains in their custody. The Accused

No.1 is also in judicial custody. There are only two other

independent witnesses who evidently belong to Melli, South

Sikkim and not to Jorethang of which the Petitioner is a

resident. The question of evidence being tampered by the

Petitioner, in my considered opinion, appears to be a little far-

fetched in the absence of any materials placed in support of this

allegation.

10. This Court has repeatedly observed that the sale of

controlled substances by unconscionable people and the use of

it by all age groups and more especially by the youth of Sikkim

Bail Appln. No.03 of 2020 10

Dharmaan Rai vs. State of Sikkim

has unequivocally had a deleterious effect on the society in the

State at large and therefore deserves to be dealt with an iron

hand. Having flagged this concern, I can well understand the

anxiety of the Police in the present circumstances to ensure

that the Petitioner remains in custody in view of the large

quantity of controlled substances seized being prescription

drugs, rampantly misused by sale at exorbitant rates, to users

who become victims and in turn embroil their family and

society to the negative aspects of its use. Nevertheless the

dots must connect and the complicity of the accused/Petitioner

in the offence must be shown. Surely, the statement of the

driver with no other evidence whatsoever at this stage to link

the Petitioner to the crime would not justify the confinement of

the Petitioner in judicial custody. This Court is aware and

conscious of the Judgment of the Hon’ble Supreme Court in

Rajesh (supra) wherein while discussing Section 37 of the NDPS

Act it has held has follows;

“20. The scheme of Section 37 reveals that

the exercise of power to grant bail is not only

subject to the limitations contained under

Section 439 of the CrPC, but is also subject to the

limitation placed by Section 37 which commences

with non-obstante clause. The operative part of

the said section is in the negative form

prescribing the enlargement of bail to any person

accused of commission of an offence under the

Act, unless twin conditions are satisfied. The first

condition is that the prosecution must be given an

opportunity to oppose the application; and the

second, is that the Court must be satisfied that

there are reasonable grounds for believing that

he is not guilty of such offence. If either of these

two conditions is not satisfied, the ban for

granting bail operates.

21. 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

Bail Appln. No.03 of 2020 11

Dharmaan Rai vs. State of Sikkim

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. In the

case on hand, the High Court seems to have

completely overlooked the underlying object of

Section 37 that in addition to the limitations

provided under the CrPC, or any other law for the

time being in force, regulating the grant of bail,

its liberal approach in the matter of bail under the

NDPS Act is indeed uncalled for.

22. We may further like to observe that the

learned Single Judge has failed to record a finding

mandated under Section 37 of the NDPS Act

which is a sine qua non for granting bail to the

accused under the NDPS Act. [emphasis supplied]”

11. The exact same spirit of Section 37 of the NDPS Act

finds place is Section 18 in the SADA, 2006 specifically Section

18(ii). However, in this context, I have to reiterate that despite

investigation having stretched on for a month and two weeks

the Prosecution has failed to place before this Court grounds

indicating complicity of the Petitioner in the offence at this

stage to justify his further detention in custody.

12. In the result, in consideration of the foregoing

discussions, this is a fit case where the Petitioner ought to be

enlarged on bail. It is accordingly ordered that the Petitioner

be released on bail on furnishing PB&SB of Rs.50,000/- (Rupees

fifty thousand) only, each, subject to the condition that;

(i) He shall report to the I.O. of the case as and when

required until completion of investigation.

(ii) He shall not make attempts to contact the two

independent witnesses or for that matter any

witnesses pertaining to the instant matter.

Bail Appln. No.03 of 2020 12

Dharmaan Rai vs. State of Sikkim

(iii) He shall not directly or indirectly make any

inducement, threat or promise to any person

acquainted with the facts of the case so as to

dissuade him/them to disclose such facts to the

Investigating Officer or to the Court.

(iv) He shall not leave Jorethang without the specific

written permission of the I.O. of the Case.

13. The observations made herein are only for the

purposes of the instant Bail Petition and shall not be construed

as a finding on the merits of the matter which shall be

considered at the time of trial, if any.

14. The Bail Appln. stands disposed of.

15. Copy of this Order be made available to all the

Special Judges (Sikkim Anti Drugs Act, 2006) for information.

( Meenakshi Madan Rai )

Judge

26-05-2020

Approved for reporting : Yes

ds