REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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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

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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

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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,

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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

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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,

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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.

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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.

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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.

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(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)-

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(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.

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19.The appeal fails and is dismissed.

……………………………………J.

(Dr. ARIJIT PASAYAT)

……………………………………J.

(C.K. THAKKER)

……………………………………J.

(D.K. JAIN)

New Delhi:

November 7, 2008

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