IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/01/2011 CORAM THE HON'BLE MR.JUSTICE G.M. AKBAR ALI CRL.O.P.Nos.27869, 27872, 18772, 22318, 23008, 23415 and 26495 of 2010 ORDER :
G.M. AKBAR ALI,J.,
The petitioner in Crl.O.P.27869 of 2010, who was produced under P.T.Warrant on 17.9.2010; the petitioner in Crl.O.P.No.27872 of 2010, surrendered on 22.2.2010; the petitioner in Crl.O.P.No.18772 of 2010, was arrested on 11.6.2010; the petitioners in Crl.O.P.No.22318 of 2010, were arrested on 7.2.2010; the petitioner in Crl.O.P.No.23008 of 2010, was arrested on 20.5.2010; the petitioner in Crl.O.P.No.23415 of 2010, was arrested on 20.2.2010 and the petitioner in Crl.O.P.No.26495 of 2010, was arrested on 7.3.2010 for the offences punishable under Secs.8(c) r/w 20(b)(11)(C), 25, 27(A), 29 of NDPS Act in Cr.Nos.51 and 55 of 2010 on the file of the respondent police, seek bail.
2. On 7.2.2010, the Inspector of Police, Chennimalai Police Station had received information that within the limits of the Police Station at a Village called Pudhu Valasu, Ganja plantation is being cultivated. On such information, he proceeded with police party along with Thiru.Gopal, Village Administrative Officer of Yekkatampalayam. When they reached the land, belonging to one Chellamuthu, S/o Kandasamy Gounder, they saw Ganja plantation and the harvested Ganja crops. There were gunny bags, containing ganja and polythene bags containing ganja seeds. He seized the gunny bags and polythene bags and the bags containing ganja seeds under mahazar. He arrested the owner of the land viz., Chellamuthu and recorded his confession statement. It was found that the said Chellamuthu had leased out the land to one Palkaramurthy, Ponnysamy Nadar and Ganesan and three others for ganja plantation. During further investigation, he arrested one Nallasivam and based on his confession, he had arrested the other accused. He also registered a case in Cr.No.51/2010 for offences under sections 8(c) r/w 20(b)(11)(C), 25, 27(A), 29 of NDPS Act. After investigation, charge sheet had also been filed against 11 accused.
3. As per the charge sheet, A.1 to A.6 were alleged to have committed the offence of cultivating 2500 kgs of ganja and also in possession of 300 kgs of ganja, 8 kgs of ganja seeds and 300 grams of ganja tablets. Apart from this, A.1 was found to be in possession of 60 kgs of dried ganja; A2 was found to be in possession of 40 kgs of dried ganja ; A4 was found in possession of 10 kgs of dried ganja: A5 is the owner of the land, who permitted A.1 to A.4 and A.6 to cultivate ganja in his land; A.7, A.8 and A.11 were found to be assisting A.1 to A.6 for cultivation of ganja and A.9 and A.10 were alleged to have financed for cultivation of ganja.
4. The petitioner in Crl.O.P.No.23415 of 2010 by name Ganesan has been arrayed as A.1. The petitioner in Crl.O.P.No.27872 of 2010 by name Palkaramurthy @ Eswaramoorthy has been arrayed as A.2. The petitioner in Crl.O.P.No.26495 of 2010 by name Nallasivam has been arrayed as A.3. The petitioners in Crl.O.P.Nos.22318 of 2010 by name Pandian and Iyer have been arrayed as A.7 and A.8. The petitioner in Crl.O.P.No.23008 of 2010 by name Murugan has been arrayed as A.9. The petitioner in Crl.O.P.No.18772 of 2010 by name Palanisamy has been arrayed as A.11 and the petitioner in Crl.O.P.No. 27689 of 2010 by name Palkaramurthy @ Eswaramoorthy has been arrayed as A.6 in Cr.No.55 of 2010.
5. Mr.C.S. Dhanasekaran, who appeared for the petitioner(A1) in Crl.O.P.No.23415 of 2010 would submit that this petitioner has been implicated based on the alleged confession of a co-accused and thus it is hit by Sec.25 of the Evidence Act and except the allegations contained in the confession, no other materials are against him. The learned counsel pointed out that under similar circumstances, this Court had granted bail in Crl.O.P.No. 6687 of 2010. He also produced the order copy in Crl.O.P.No.6687 of 2010, wherein in Cr.No.140 of 2006, this court has considered that the only material available against the petitioner therein is the alleged confession given to the police by the accused therein which is an inadmissible piece of evidence.
6. The learned counsel also produced an order passed in Crl.O.P.No.5342 of 2008, wherein this Court has considered the relief of granting bail as the case of the prosecution was on the basis of alleged confession before the police officer and not a statement under Sec.67 of NDPS Act.
7. The learned counsel relied on a decision reported in 2009 (2) Crimes 171 (SC), (Union of India vs Bal Mulkund and Ors) wherein the Apex Court has held as follows:
22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons issued to him for obtaining information can be applied against a co-accused. Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a confession would be admissible for making the statement of a co-accused relevant against another co-accused If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to his interest”
8. Mr.N.R. Elango, learned senior counsel who appeared for the petitioner in Crl.O.P.Nos.27689 and 27872 of 2010, who has been arrayed as A.2 in Cr.No.51 as well as in Cr.No.55 of 2010 would also submit that only on the basis of the confession of the co-accused and also on the confession of the petitioner, the prosecution has implicated the petitioner. The learned senior counsel pointed out that even the contraband which was seized from the petitioner is not of commercial quantity and there is no embargo of Sec.37 of NDPS act for granting bail to the petitioner.
9. Similarly, Mr.R. Baskar, learned counsel who appeared for the petitioner/A.3 in Crl.O.P.No.26495/2010 would submit that except the confession of the co-accused there is no other material to implicate the petitioner.
10. Mr.Chinnasamy, learned counsel appearing for the petitioners/A.7 and A.8 in Crl.O.P.No.22318 of 2010, would submit that the petitioners are said to be the police personnel, who assisted for cultivation of ganja and except the confession of the co-accused, there is no other materials to implicate the petitioner.
11. Mr.T. Muruganandam, the learned counsel appearing for the petitioner/A9 in Crl.O.P.No.23008 of 2010 would submit that the allegation against the petitioner is that he has financed for cultivation of ganja and except the confession of the co-accused, there is no other material to implicate the petitioner.
12. Mr.V.S. Kesavan, the learned counsel appearing for the petitioner/A.11 in Crl.O.P.No.18772 of 2010 would submit that the allegation against this petitioner is that he has also financed for cultivation and the specific allegation against the petitioner is that he encouraged A.1 to cultivate the plant.
13. Mr.Hassan Mohamed Jinnah, the learned Additional Public Prosecutor would submit that the petitioners are involved in cultivation of 2500 kgs of ganja and the police have seized 800 kgs of contraband. The learned Additional Public Prosecutor also submits that since the contraband being commercial quantity, there is an embargo under Sec.37 of NDPS for releasing the petitioners on bail.
14. The learned Additional Public Prosecutor relied on a decision reported in (1999) 9 SCC 429 (Union of India vs Ram Samujh and another), in which, the Apex Court has held as follows:
“To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail
are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended”.
15. He also relied on a decision reported in (2001) SCC Crl.648 (Supdt. Narcotics Control Bureau vs R. Paulsamy, in which the Apex Court has held as follows:
“6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying tht no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections”.
16. He further relied on a decision reported in (2010) 3 SCC (Crl) 604=(2007) 15 SCC 569 (Union of India vs Ashok Kumar Jaiswal)
“3. It is evident that the High Court did not at all take into consideration the requirements of Section 37 of the Act as it stood when the application of the respondent for grant of bail was allowed and bail was granted to him merely observing that “considering the recovery and detention it is a fit case for bail”. The legislature with a view to check the menace of drugs incorporated in the Act the stringent provisions of Section 37 for considering prayer for grant of bail of those who are accused of offence punishable for a term of imprisonment of five years or more under the Act. Under the mandatory conditions provided in Section 37 before granting bail the court is to be satisfied that there are reasonable grounds for believing that the accused is not guilty of offence and that he is not likely to commit offences under the Act while on bail”.
17. I have heard the submissions made on behalf of the petitioners and the learned Additional Public Prosecutor and perused the materials available on record.
18. All the petitioners are alleged to have committed the offences under Secs. 8(c) r/w 20(b)(11)(C), 25, 27(A), 29 of NDPS Act and the specific allegations against each of the accused are as follows:
A.1 to A.6 – committed the offence of cultivating 2500 kgs of ganja cultivation and also in possession of 300 kgs of ganja, 8 kgs of ganja seeds and 300 grams of ganja tablets. In addition to this,
A.1 was found to be in possession of 60 kgs of dried ganja;
A2 was found to be in possession of 40 kgs of dried ganja separately;
A4 – was found in possession of 10 kgs of dried ganja;
A5, who is the owner of the land, is said to have permitted A.1 to A.4 and A.6 to cultivate ganja in his lands;
A.7, A.8 and A.11 were found to be assisting A.1 to A.6 for cultivation of ganja;
A.9 and A.10 – financed the cultivation of ganja.
19. There are 11 accused out of which, A.1 to A.6 were charged for criminal conspiracy to cultivate ganja in the lands of A.5 one Chellamuthu and in pursuant of the conspiracy, cultivated 2500 kgs of ganja and were in possession of 300 kgs of dried ganja and 8 kgs of seeds and 300 grams of ganja tablets. Apart from this , A.1 and A.2 were charged for the offence of possession of 60 kgs and 40 kgs of ganja respectively and A.4 was found in possession of 10 kgs. As far as A.6 to A.11 are concerned, they were said to be parties to the criminal conspiracy and abetters and financiers the offence.
20. Sec.20 of NDPS Act reads as follows:
“20. Punishment for contravention in relation to cannabis plant and cannabis
Whoever, in contravention of any provision of this Act or any rule or orermade or condition of licence granted thereunder-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses sells. Purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable.-
(i) where such contravention relates to clause(a) with regorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii)where such contravention relates to sub-caluse(b)-
(A) and involves small quantity, with regorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with regorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be les than ten years but which may extendto twenty years and shall also be liable to fine which shall not be less than one lakh ruees and which may extend to two lakh rupees;
Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
21. Sec.27(A) reads as follows:
27-A Punishment for financing illicit traffic and harbouring offenders
Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 of harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees;
Provided tht the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”
22. Sec.29 reads as follows:
29. Punishment for abetment and criminal conspiracy
(1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishment with the punishment provided for the offence.
(2) A person abets, or is a party t a criminal conspiracy to the commit, as offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without an beyond India which-
(a) would constitute an offence if committed within India, or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the lega conditions required to constitute it an offence punishable under this Chapter, if committed within India.
23. Sec.37 reads as follows:
Sec.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 19 or section 24 or section 27-A 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 granting of bail”.
24. If a person cultivates or produces or possesses or transports cannabis plant which involves commercial quantity, granting of bail is barred under Sec.37 of the Act. The punishment under Sec.20(b) is attracted when any person produces, manufactures, possesses, sells, purchases, transports, imports or exports or uses cannabis and the punishment will be more than ten years if it involves commercial quantity. Therefore, Sec.37 is an embargo for granting of bail if the offence involves Sec.20 (b) (ii) (C) which speaks about commercial quantity. On the other hand, Sec.20(a) deals with cultivation of ganja plant. The punishment is imprisonment for a term which may extend to ten years only. Therefore, unless there is an allegation that a person was in possession of ganja of commercial quantity, the embargo under Sec.37 of the Act will not be attracted.
25. According to the charge sheet, the petitioner in Crl.O.P.No.18772 of 2010 Palaniswamy A.11, and the petitioners in Crl.O.P.No.22318 of 2010 Pandian and Iyer, A.7 and A.8 respectively were assisting and giving advise to A.1 to A.6 in cultivating the ganja. Admittedly there is no recovery of contraband from these petitioners. They were charged for the offence under Sec.8(b) r/w 20(a)(i) and 29 of the Act.
26. Contravention Sec.20(a)(i) of the Act contemplates rigourous imprisonment for a term which may extend to ten years. A conjoint reading of Sec.37(1)(b) and 20 (a)(i) would show that the offence under sec.20 (a)(i)and sec.29 will not come under the purview of Sec.37 of the Act. Therefore, I am of the considered view that there is no bar in granting bail to the petitioners who have been arrayed as A.7, A.8 and A.11. It is also pertinent to note that A.7 and A.8 are agricultural coolies and A.11 is alleged to have encouraged or given a moral support for A.2 to cultivate ganja.
27. The petitioner in Crl.O.P.No.23008 by name Murugan @ Keeripatti Murugan(A9) and A.10 (who is not before this Court) are alleged to have committed offence under Sec.27(A) for financing. Any offence punishable under Sec.27(A) is covered under Sec.37 of the Act. However, the petitioner and one Mokairaj were implicated in the offence only on the basis of the confession of A.1 and A.2. In the confession it is stated that when A.3 enquired A.1 as to how A.1 is spending so much of money for cultivation, it was replied that the petitioner was advancing the money as finance. Except this statement of the co-accused, there is no other material evidence to implicate the petitioner in the case. Therefore, merely on the basis of the alleged confession given by the co-accused, which is inadmissible, the petitioner cannot be said to have committed an offence under Sec.27(A) of the Act. However, it is for the prosecution to prove the offence at the time of trial and as there is no material evidence available on the face of the record at this stage. Therefore, I am of the considered view that the petitioner cannot be brought in for an offence under Sec.27(A) of the Act and if at all he could be prosecuted, it is only for an offence under Sec.20(a)(1) r/w 29 of the Act. Therefore, I am inclined to grant bail to the petitioner in Crl.O.P.NO.23008 of 2010.
28. The petitioner in Crl.O.P.No.27872 and 27689 by name Palkaramurthy @ Eswara Moorthy has been arrayed as A.2 in Cr.Nos.51 and 55 of 2010. According to the prosecution, he is the main accused for taking the land on lease and cultivating ganja plants. In the objection filed by the respondent, it is stated that in pursuant to the confession given by the petitioner, 40 kgs of dried ganja was recovered. However, perusal of the alleged confession by the petitioner would show that the petitioner has kept 40 kgs of ganja in two gunny bags concealed at one Sakkilian Kattu Thottam. However, there is no evidence to show that the contraband of 40 kgs of ganja was recovered from the petitioner. Though there is no recovery of the contraband from the petitioner, a total quantity of 300 kgs of ganja, 8 kgs of seeds and 300 grams of ganja tablets were seized from the lands in which, the ganja was planted. According to the prosecution, 2500 kgs of standing crops were also found which was destroyed after taking two plants as sample.
29. Mr.N.R. Elango, the learned senior counsel for the petitioner would submit that the confession given by the petitioner is inadmissible and except the confession of the petitioner and the co-accused, there is no other material to implicate the petitioner.
30. For cultivation of ganja, the quantity is immaterial and it will not attract Sec.37 of the Act unless the offence relates to 20(b) . However, there is huge recovery of 300 kgs of ganja from the land, which belongs to one Chellamuthu and also the lands belong to one Selvaraj at Mottiankadu. The petitioner is alleged to have involved in cultivation and storage of the above said quantity.
31. The petitioner in Crl.O.P.No.23415 by name Ganesan has been arrayed as A.1. According to the prosecution, the petitioner, who belongs to Theni District came to Chennimalai of Erode District and made friendship with A.2 Palkaramoorthy @ Easwaramoorthy, who in turn, arranged for the lease of the lands to cultivate ganja. According to prosecution, the petitioner is the brain behind cultivation of ganja and was in possession of 3 gunny bags of ganja. Moreover huge quantity of ganja was seized from the lands and the standing crops were destroyed.
32. Mr.C.S.Dhanasekaran, learned counsel appearing for this petitioner would submit that only on the confession of the co-accused viz., A.2, the petitioner was implicated. The learned counsel also pointed out that the petitioner was not in possession of any contraband and there is no evidence to show that the petitioner has taken the land in lease from the original owner who is also arrayed as accused. According to the learned counsel the confession of the petitioner and the co-accused are inadmissible and this Court has granted bail in similar cases holding that confession of the co-accused is inadmissible.
33. The petitioner in Crl.O.P.No.26495 by name Nallasivam has been arrayed as A.3. Even according to the confession given by the petitioner he was only assisting the main accused as a coolie and nothing was recovered from the petitioner though he is charged for the offence under Sec.20(b)(ii)(C) of the Act, he cannot be treated at par with A.1 and A.2, who are alleged to be the main accused.
34. This petitioner was not in possession of commercial quantity and if at all he could be charged it can be only under Sec.20(a)(i) r/w 29 of the Act. Therefore, I am inclined to grant bail to the petitioner.
35. As far as A.1 and A.2 are concerned, they are said to be the main accused, who have initiated cultivation, arranged for the land, engaged coolies and planted ganja. Though there is no direct recovery from these two accused, the police have recovered huge quantity of ganja and destroyed around 2500 kgs of standing crops. Since the case involves production of huge quantity of Ganja, I am not inclined to accept the arguments of the learned counsel that there is no evidence except the confession of the owner of the land to state that the petitioner had taken the land on lease. As far as A1 and A2 are concerned, Sec.20(b)(ii)(C) of the Act is attracted and there is a bar under Sec.37 of the Act.
36. In the result,
In Crl.O.P.No.18772 of 2010, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for the like sum to the satisfaction of the learned Additional Sessions Court, Special Court for NDPS Act Cases, Coimbatore and on condition that the petitioner shall appear before the trial court on all the dates of hearing.
In Crl.O.P.No.22318 of 2010, the petitioners are ordered to be released on bail on each of them executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for the like sum to the satisfaction of the learned Additional District Judge and Presiding Officer, Special Court for E.C.Act Cases, Coimbatore District and on condition that the petitioners shall appear before the trial court on all the dates of hearing.
In Crl.O.P.No.23008 of 2010, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for the like sum to the satisfaction of the learned Special Judge, Special Court for E.C.Act Cases, Coimbatore District and on condition that the petitioner shall appear before the trial court on all the dates of hearing.
In Crl.O.P.No.26495 of 2010, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for the like sum to the satisfaction of the learned Additional District Judge, Special Court for E.C.Act Cases, Coimbatore District and on condition that the petitioner shall appear before the trial court on all the dates of hearing.
The petitions in Crl.O.P.Nos.23415 of 2010, 27869 of 2010 and 27872 of 2010, stand dismissed.
22-1-2011
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Index:yes
Website:yes
G.M. AKBAR ALI,J.,
sr
Pre-Delivery Order in Crl.O.P.Nos.
27869, 27872, 18772, 22318,
23008, 23415 and 26495 of 2010
22-1-2011