ORDER
A.B. Palkar, J.
1. This Revision Application is filed under section 482 Cr.P.C. by the Intelligence Officer of Directorate of Revenue Intelligence in N.D.P.S. Spl. Case No. 221 of 1997 pertaining to Bail Application No. 148 of 1997, for quashing and setting aside the order granting bail to respondent No. 1/Org. Accused Holia Mohammed Nisar in the aforesaid N.D.P.S. Spl. case and for further direction for taking him in custody as after the impugned order, he has been released on bail.
2. Before proceeding to state the facts, it is necessary to bring on record that by an order, dated 4-7-1997 passed by this Court (Coram: Moorthi, J.) respondent No. 1 came to be arrested and in pursuance of the said order, he continues to be in jail
pending hearing of this Revision Application. It is also pertinent to point out that respondent No. 1 availed of bail on 2-7-1997 and order for taking him custody was passed on 4-7-1997 which has been implemented on 10-7-1997. Complaint in the present case came to be filed before the Court of the Special Judge, N.D.P.S. on 22-4-1997 and the same was registered as N.D.P.S. Spl. Case No. 221 of 1997. The prosecution case in brief is that respondent No. 1 at the relevant time was residing in Room No. 306, Hotel Kalpana Palace, Opp: Daulat Cinema, Mumbai-9 and on the basis of intelligence received by the Directorate, a search of the said room was taken in presence of panchas when the respondent No. 1 was present in the said room. In addition to currency of Rs. 4.25 lakhs, which was subsequently returned to respondent No. 1, there was one fax message copy of a lorry receipt bearing No. 965450 dated 21-1-1997 of M/s. Green Carriers & Contractors, (Delhi) Pvt. Ltd. issued by their Delhi office. It showed that the consignment of four packages were dispatched from Delhi by consignor M/s. Kudrat Enterprises to M/s. Shah Pharma, Mumbai, consignee. The said document was seized and the respondent No. 1 was allowed to continue to reside in the said room. Thereafter respondent No. 1 was summoned in the office of the D.R.I. on 24-1-1997 and on that day his statement under section 67 of the N.D.P.S. Act was recorded.
3. On the basis of the fax copy of the lorry receipt the Officers contacted M/s. Green Carriers and Contractors and on coming to know that the consignment under the said lorry receipt was not yet arrived, they were instructed not to clear the same to anyone until further instructions and to intimate the Directorate on arrival of the said consignment. Therefore, on 26-1-1997 in the evening, the representative of the carriers informed the D.R.I. Officers about the arrival of the consignment and thereafter respondent No. 1 was called and in his presence and in presence of panchas search of the godown of M/s. Green Carriers was taken. The said consignment was found to contain four different packets which contained mandrex tablets each packet containing 40 plastic containers and each plastic/polythene bag weighed 375 gms. approximately. As usual spot test was done and later on samples were sent for examination by the Chemical Analyser. The total weight of the contraband was 73.140 kgs. After completing all formalities respondent No. 1 was brought back to the hotel where he was residing and he was asked to check out from the said hotel and brought to D.R.I. office. His statement was again recorded on 27-1-1997 wherein he confirmed his statement made earlier and stated as to how he came in contact with one person by name Ahmed a South African national and he entered into dealings regarding drug trafficking with the said person. The passport of the accused/respondent was seized and it showed that he had repeatedly visited South Africa, Zambia and other countries. Further investigation was carried out and statement of the godown in-charge and other witnesses were recorded and the respondent No. 1/accused was arrested on 23-1-1997. He was produced before the learned Magistrate for Remand on 30-1-1997 and thereafter he was produced before the Special Judge on 23-4-1997 after the complaint was filed. The accused moved an application for bail before the learned Special Judge. The application was opposed strongly by the department and after hearing the learned Counsel appearing for respondent No. 1/accused and the learned Public Prosecutor, the learned Special Judge passed an order on 26-6-1997 directing release of respondent No. 1/accused on bail on furnishing security Rs. 50,000/- with one or two sureties of like amount. A request for
stay of the said order was made, but the same was refused and respondent No. 1/ accused was directed not to tamper with prosecution witness and to remain present in Court on every date of hearing. This order of the learned Special Judge has been challenged in the present revision and as pointed out earlier in view of the order passed by this Court, respondent No. 1 is in custody.
4. In this Court the order of the learned Special Judge was seriously challenged and it was contended that the order at the very inception is bad-in-law. It has been passed in a very cavalier manner without considering the facts and circumstances and the provisions of section 37 of the N.D.P.S. Act. The learned Special Judge has not considered the gravity of the offence and even the amount of bail on which the respondent No. 1 is released an nominal amount and that strict conditions are also not imposed while releasing respondent No. 1 on bail. The material evidence against respondent No. 1 is in the form of seizure of fax copy of the lorry receipt the intelligence received by the D.R.I. and other incriminating documents coupled with the statement recorded under section 67 of the N.D.P.S. Act. The learned Special Judge has not considered the fact that the consignor and the consignee mentioned in the fax copy of the lorry receipt were fictitious firms and the same was sufficient enough to make out a prima facie case against the respondent No. 1 for possession of the contraband and his statement showed that he was indulging in drug trafficing for a period of about 8 years. Even his father did not know his whereabouts and though he is an Indian, he has for all practical purposes shifted to Zambia having his permanent address there and therefore, he should not have been released on bail. The order of the learned Special Judge releasing respondent No. 1 on bail is therefore required to be quashed and set aside.
5. Arguments on behalf of the petitioner were advanced by Shri Satpute learned Special Public Prosecutor and he has cited a number of judgments in support of his arguments. As against this Shri Lalla learned Counsel appearing for respondent No. 1 has argued at length. Shri Lalla contended that there is no evidence even to make out a prima-facie case against his client respondent No. 1 as the fax copy of the lorry receipt even though found in the room whrein respondent No. 1 was residing is not a piece of evidence which is sufficiant to connect him with the contraband received by the carrier. Apart from the statement under section 67 of the N.D.P.S. Act there was no other material to connect respondent No. 1 with the possession of the contraband and the statement under section 67 of the N.D.P.S. Act cannot be considered on par with the statement under section 108 of the Customs Act and therefore, the order of the learned Special Judge cannot be said to be bad or such that no reasonable and prudent Judge would pass in the facts and circumstances of the case. The applicant being Indian national there are no possibility of his escaping or jumping bail. His passport has been taken into custody by the Department and it is not possible for him to leave the limits of India. He has a permanent place of residence at Bharuch in the State of Gujarat and the copy of the complaint was served on him at his address in Gujarat, and therefore, it is not possible to say that he is not having any permanent place of residence in India. His brother has sworn and filed an affidavit supporting his contention that he resides at the address at Bharuch, and that the information given by his father is not correct and the statement of his father has not been recorded and no case has been made out for cancellation of bail by the Department and the Revision is liable to be dismissed.
6. Before I proceed to consider the material on record and the submissions of the learned Counsel it is necessary to consider the legal position, particularly the provisions of the N.D.P.S. Act. As per provisions of section 37 of the Act, no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless the Public Prosecutor is heard and given an opportunity to oppose the application and when the application is so opposed, the Court must be satisfied before releasing the person on bail 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. It has been specifically made clear by sub-section (2) that the limitations on granting of bail specified in Clause (b) of sub-section (1) are in addition to the limitations placed under the Criminal Procedure Code or any other law for the time being in force for grant of bail. The section itself starts with a non-obstante clause and makes it clear that the provisions of the Cr.P.C. do not govern grant of bail in cases covered by section 37 of the N.D.P.S. Act.
7. The statement of respondent No. 1 has been recorded under section 67 of the Act. It is necessary to point out that the said provision authorises an Officer referred to in section 42 and authorised by the Central or State Government to call for any information for the purpose of satisfying himself as to whether there has been any contravention of the provisions of the Act or any rule and to require any person to produce or deliver any document and even to examine any person acquainted with the facts and circumstances of the case. However, there is material difference between the provisions of section 67 of the N.D.P.S. Act and section 108 of the Customs Act. The proceedings under section 108 of the Customs Act are judicial proceedings and action can be taken for giving false evidence against the person whose statement is recorded under section 108 of the Customs Act, whereas no such provision is found in section 67 of the N.D.P.S. Act which make it a judicial proceeding.
8. Although number of authorities are cited, by the learned Advocates appearing for the respective parties, I would refer only to the relevant authorities and thereafter in the light of the legal position, I shall proceed to examine the facts of the case and consider the argument advanced by the learned Counsel.
9. On behalf of respondent No. 1 reliance was placed on a judgment of this Court in Cri. Revision Application No. 137 of 1990, wherein the learned Single Judge has made reference to the judgment of the Supreme Court and has pointed out at para 12 that in A.I.R. 1970 S.C. 961, in the case of Delhi Administration v. Sanjay Gandhi, the Supreme Court has pointed out that the rejection of bail when a bail application is made is one thing and cancellation of bail already granted is quite another and cancellation of bail necessarily involves review of the decision already given and can by and large be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom and remain at large. In (1984 Cri.L.J. page 160), the Supreme Court has observed in para 2 as under:—
“Ordinarily this Court is not inclined to interfere with the orders either granting or refusing to grant bail to an accused person either facing a criminal trial or whose case after conviction is pending in appeal. However, this is not a case where bail is granted or refused but the order granting the bail by the learned Sessions Judge was set aside by the High Court adopting an approach which does not command to us.”
10. On behalf of the petitioner reliance was placed on the judgment of learned Single Judge of this Court reported in 1988(2) Crimes page 581, R.S. Rawat, Asstt. Collector of Customs v. Andre Christopher Mydiarz & others, wherein certain observations are made regarding bail to be granted to a foreigner. At page 581, the Court observed that –
“Held, that experience has shown that foreigners, even when granted bail of an astronomical amount, have fled the country and failed to face justice. I do not mean that in every case a foreigner must be denied bail. But greater caution has to be exercised while dealing with foreign nationals involved in such offences. In the facts of the present case, it is evident that smuggling on large scale is involved. The further aspect of the present case is that two co-accused, viz. Mr. & Mrs. Maturgo, who obtained bail on the ground of sickness of Mr. Maturgo have since absconded. On the material placed before me, I am satisfied that, in the facts and circumstances of this case, the possibility of the respondents absconding is very high. Now, if economic offences like smuggling which endanger the economy of the country in a substantial way are to be curbed, then, apart from the higher punishment which are prescribed by the law, the first essential thing is that the accused should be brought to book, and for that purpose, they must be available for trial. It is in this context that the aspect of the probability of the accused fleeing from justice assumes importance.”
In this case reference is also made to a judgment of Justice Mohta in Criminal Appeal Nos. 1638 and 1679 of 1987, wherein certain principles have been laid down by the learned Judge. It has been pointed out in the said case that the cases under the Narcotics Act and the offences thereunder affect the health- mental as well as physical – of the populace at large, particularly the younger members and a Society might find on its hands a young generation of doped morons. It has also been pointed out that one of the criteria while considering the grant of bail is that it must be taken into consideration as to whether the accused is a national of this country or whether he is a foreigner because experience has shown that foreigners, even when granted bail of an astronomical amount have fled the country and failed to face justice. It is also pointed out that the larger interest of the State of the public must prevail.
11. It is an admitted legal position that while considering the application for bail the Court has to consider the prosecution case as presented and evidence that is collected by the prosecution and not to conduct a “mini trial” by entering into appreciation of evidence. However, the said evidence must be sufficient to make out prima facie offence complained of. Because in the absence of such an evidence, it is duty of the Court to enlarge the applicant on bail as the Court cannot be totally oblivious to the question of liberty of the citizen which is involved in such a matter. Certain judgments referred to by the learned Counsel for the petitioner are pertaining to section 108 of the Customs Act and as I have already pointed out that there is basic difference between the provisions of section 108 of the Customs Act and section 67 of the N.D.P.S. Act, I am not inclined to refer to those judgments, which are under section 108 of the Customs Act. However, it should also be borne in mind that statement under section 67 of the N.D.P.S. Act is not to be treated on par with the statement under section 161 of the Cr.P.C. The learned Counsel for the petitioner also
relied on a case reported in 1995 Supp (3) Supreme Court Cases 242, State of Punjab v. Dharminder Kumar alias Kaka, wherein the Supreme Court has pointed out that in a case while granting bail under section 37 of the N.D.P.S. Act, the Court cannot at that stage say whether the accused is guilty of offence or not. What is to be seen is only prima-facie case. In that case bail granted by the trial Court and confirmed by the High Court was cancelled by the Supreme Court and a non-bailable warrant was issued. It is on the back-ground of these legal proposition that the facts of the present case have to be considered.
12. Now coming to the facts of the present case, I would briefly point out the material that is placed before the Court by the prosecution. Firstly there is intelligence received which points out to the exact place where the accused was allegedly residing and the fact that the fax copy of the L.R. was in the said room. It is true that the name of the accused does not appear in the said report. Thereafter search of that room was taken and the fax copy was seized. However, after seizure of the said fax copy, the accused was not immediately arrested as the Officers wanted to confirm about the receipt of goods mentioned in the intelligence. Had the goods not been found, there was no question of arresting the accused and therefore, surveillance was kept. Some other documents were also found in the said room. It was brought to my notice that panchnama does not describe the receipt, but the same has been stated in Schedule annexed to the panchanama and the effect of this is something which has to be decided at trial and not at the stage of considering prima-facie case.
13. Another important aspect of the matter is that the investigation by the Officers found that the consignor and consignee were fictitious, that is non-existent. The statement of the accused was recorded under section 67 of the N.D.P.S. Act and his statement is in his own handwriting. It is not recorded in one sitting. It gives all the details, some of which can be definitely said to be only personally known to the accused/respondent No. 1. The nexus between the fax copy of the lorry receipt and the accused is found in this statement. In this statement he has also stated as to how he came into contact with Ahmed and started indulging in drug trafficking. The accused is no doubt an Indian national and he has a permanent resident at Bharuch and the complaint was also served on him on that address. This statement is supported by his brother, but the enquiries by the officers concerned from his father revealed that for last about 8 years the accused has not been residing in India and he even does not know his exact address and whereabout. It is also revealed in the statement and supported by the passport that the original passport of the accused issued by the Government of India was reported to be lost and thereafter he has secured another passport from a foreign country. The further interesting fact is that the accused although claims that he is doing some business, he has not disclosed any exact place of his business and what business he is carrying on. He has repeatedly visited foreign country in a period of 8 years about which there are entries in the passport. This becomes material in view of the fact disclosed by him in the said statement.
14. Now the experience shows that in almost every case, on being produced before the Court, the accused retracts his confessional statement, which the officers are entitled to record and which are not to be treated as confession given to the Police Officer. The effect of retraction can be considered only at the trial and not at this stage but one thing has to be pointed out that the accused does not complain of any physical torture or any injuries on his person to say that he was coerced and forced to give
such a statement. In fact the statement shows that on 24th after partly recording the statement, he stated that he was observing Roja and was allowed to go to the hotel on his promise that he will come back on 25th. This circumstance will have to be considered by the trial Court while considering the contention of respondent No. 1 that the statement is not voluntary. As against the allegation of the Department that the consignee and consignor are fictitious, the accused has not given any explanation. Had the consignor and consignee been in existence the accused would have pointed out and enquiries could have been made from them. One mystery however remains to be solved which is regarding the original lorry receipt, but at this stage we have to go by the case that is brought by the prosecution. The fairness of the investigating agency is apparent from the fact that the cash found in possession of the accused was immediately returned to him and even after seizure of the fax copy, he was not immediately arrested on that basis and he was arrested only after the consignment was received and it was found to contain huge quantity of mandrax tablets. The statement of the person whose name was disclosed by respondent No. 1, who have introduced him to the person named Ahmed in South Africa is also recorded. Respondent No. 1 was present at the time of search of consignment and seizure of mandrax tablets. Statement in the order of the learned Special Judge that he was not even present is factually incorrect and this was not disputed by Shri Lala appearing for respondent No. 1. These, according to me are the material facts which are required to be taken into consideration on the background of the provisions of section 37 of the N.D.P.S. Act. Before granting bail under the provisions of section 37 of the N.D.P.S. Act, the Court has to come to the conclusion, 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. The order of the learned Judge does not show that this was taken into consideration. Another important fact is that there have been repeated calls by the accused to South Africa during his stay in India and this circumstance will also have to be explained properly by the accused at the trial. At this stage what is stated in statement under section 67 N.D.P.S. Act was only before the Court.
15. Now the link to establish connection of the accused with the contraband is the fax copy of the lorry receipt. But it has to be considered along with the statement of the accused, and the evidence that will be led by the complainant to show that both the consignor and consignee were fictitious. It is therefore not possible to accept that the prosecution had no prima-facie case and even at this stage on the basis of the prosecution evidence, it can be said that the accused cannot be said to be guilty of any offence. The quantity of contraband i.e. mandrax tablets found was huge. The drug trafficking has been adversely affecting cur society and especially the younger generation and that is why the legislature has made stringent provisions even for granting bail which are as pointed out earlier notwithstanding anything contained in the Criminal Procedure Code”.
16. The other factor is that the accused has already secured a second passport and he admits to have lost the earlier passport and when his father himself informed the Officers that accussed is not residing with him and his whereabouts are not known for last several years, then it is difficult to accept that the accused would be available for trial, if he is released on bail and this fact has not been given serious consideration by the learned trial Judge.
17. The amount of bail awarded by the learned Judge is a paltry amount on which respondent No. 1 is directed to be released on bail and in such cases the persons indulging in drug trafficing can always afford to give such amount and jump the bail, and then it would be very difficult to trace them out and bring them to book and require them to face trial. The learned Judge has also not put any condition worth the name for ensuring that respondent No. 1 does not leave India pending trial. Experience shows that even after passport is impounded and remained in possession of the authorities concerned, the person involved in serious crimes manage to make good their escape through different routes to which I need not refer at this state and in view of this it has been rightly contended by Shri Satpute appearing for the department that the order has been passed without giving serious consideration to the material produced by the prosecution.
18. The learned Judge has also not considered section 35 of the N.D.P.S. Act which shifts the onus of proof on the accused to prove that inspite of the aforesaid circumstances, he is not guilty, as the presumption is against him as per the said provision.
19. Now apart from the amount of bail order and the fact that stringent conditions were not imposed, a complaint has been made that verification of the surety which is normally done through the department was also not got done in this case before releasing the accused. However, this is a matter for which the learned Judge cannot be said to be responsible. In any way it does show that the accused is competent to some extent to go out of way to get his purpose served. It was only because of timely intervention of my learned Brother Judge that the order of arrest was passed well in time. In view of these facts and circumstances and the legal position pointed out earlier, I am of the view that the order of bail was bad at its inception and it was passed in improper exercise of jurisdiction vested in the learned Special Judge by law and in such cases, it is necessary for the High Court to interfere. The only thing that can be done in favour of respondent No. 1 is to expedite the trial and even if it is expedited, it would come in due course as the trials of under-trial prisoners are being taken serially and the case of the respondent No. 1 cannot be allowed to jump over the trial of other under-trial prisoners who are languishing in jail.
20. In the result, the application succeeds and the order passed by the learned Special Judge in N.D.P.S. Case No. 221 of 1997 directing release of respondent No. 1 on bail of Rs. 50,000/-, dated 26-6-1997 in Bail Application No. 148 of 1997 is hereby quashed and set aside. Respondent No. 1 has already been arrested in pursuance of the order of this Court and shall continue to be in jail. Hearing of Spl. Case No. 221 of 1997 is expedited with a direction that the same shall be taken in due course without giving priority to the respondent No. 1 over the other under-trial prisoners who are in jail prior to him and whose cases are prior in time.
21. Application succeed.