Sanjeev Kumar v. The State

15. Lastly it was contended that applicant herein fulfils the ‘Triple Test’ criterion as propounded by this Court on 30th September 2019 and by the Apex Court in P. Chidambaram v. Central Bureau of Investigation 2019 SCC Online SC 1380. This doctrine affords an accused person bail if it can be established that he or she is not a flight risk, will not influence witnesses and will not tamper with the evidence.

16. In the present case, it is submitted that the applicant is not a flight risk and the investigation has already been completed. Relying on Manubhai Ratilal Patel vs. State of Gujarat (2013) 1 SCC 314, it was lastly submitted that if police custody is not extended, judicial custody remand is not an automatic consequence. The Court must apply its mind whether there is any justification for judicial remand or there is no need for any remand at all. Submissions on behalf of the State

17. Additional Public Prosecutor [“APP”] appearing on behalf of State countered the aforesaid submissions and opposed grant of bail in the present matter as the offence committed by the applicant and coaccused persons is serious in nature. While 5.09 kgs ganja was recovered at the instance of the applicant, 125 kgs more was recovered from the abode of the applicant. In this manner, a total of 130 kgs of contraband was seized in addition to Rs. 28.[4] lacs cash.

18. CDR connectivity reveals that applicant was in frequent touch with co-accused persons Lalit, Murari, as well as the allegedly main supplier Chandan. Mobile phone used to contact the co-accused persons was also recovered from the possession of the applicant.

19. During the course of the investigation, as alleged by APP for the State, activities of applicant as well as those of the co-accused persons point towards running of a drug syndicate wherein ganja was purchased by Chandan and handed over to Murari in Kolkata. Murari then transported the same through trains and Lalit received it in Delhi. Lalit further handed over packets containing said contraband to applicant herein for further distribution within Delhi-NCR.

20. APP for State submitted that due to this intricate chain of activities and huge contraband seized, chances are that applicant, if enlarged on bail, will not only abscond, but also engage in the illegal business of drugs as the main supplier Chandan still remains absconding.

21. In support of his arguments, APP for State placed reliance upon the following decisions: a) Masibur Khan v. State of NCT of Delhi BAIL APPLN. 2894/2022; b) NCB v. Mohit Agarwal Crl. A. 1001-1002/2022; c) Jagwinder Singh v. State of Punjab Crl. A. 816/2011; d) State of Punjab v. Baldev Singh Crl. A. 396/1990; e) Yunus Khan v. State of NCT of Delhi BAIL APPLN. 441/2024; f) Surinder Kumar v. State of Punjab Crl. A. 512/2009. Analysis

22. Heard counsel on behalf of parties and perused the material placed on record. As per the Nominal Roll dated 19th August 2024, the applicant has been in judicial custody since 22nd December 2020 and has undergone about 3 years 6 months of custody. Applicant was granted interim bail on 3 occasions with effect from 22nd January 2022 to 27th January 2022; from 10th September 2022 to 1st October 2022; and from 11th September 2022 to 26th September 2022. It has not been stated by the prosecution that he has misused his liberty. His jail conduct is satisfactory and he also has no previous involvements.

23. The principal contention asserted by applicant counsel is regarding quantity of contraband alleged to have been seized. Two recoveries were made, as per the prosecution, on 15th December 2020 from a bag carried by applicant which was found to contain 5.09 kgs of ganja and thereafter, recovery of 125 kgs of ganja from his house along with cash in the amount of Rs.28,40,000/-.

24. Though the search was conducted of the bag in presence of the ACP, Dwarka Operations, there is no contention by applicant for noncompliance of Section 50, NDPS Act. Seizure of 125 kgs ganja from the applicant’s house was, however, not in the presence of any independent witness, or captured by any videography or photography. This assumes certain importance since the seizure was done during the COVID-19 pandemic, and it is quite possible that individuals were not willing to join as independent witnesses. However, the seizure being from inside the premises of applicant, there is no reason why photography or videography could not have been done for apparent lack of independent witnesses.

25. As per the chargesheet, seizure from the house of applicant was on pointing out by the applicant, but was done at 7:30 pm in the presence of ACP, Dwarka Operations. Considering that seizure was done after sunset from a premises, there is also nothing on record to state that procure under proviso to Section 42, NDPS Act had been complied with. However, this aspect has not been asserted by applicant’s counsel.

26. What has been focused on is the nature of substance recovered and seized. As regards 5.09 kg seizure from the bag, it is stated that it was “badbudar seelandar patti aur ghasnuma beej yukt saman” which was found on smelling, as ganja. As regards seizure from home of the applicant, the description given of 8 bags seized is of “seelandar badbudar beej yukt wa pattidar ghasnuma saman” which was also found on smelling, as ganja.

27. Counsel for applicant claims that this was obviously a heterogenous material which contained leaves and seeds, material seized cannot be counted as ‘ganja’ in its entirety for the purpose of determining quantity seized. For this, reference was made to the definition of ganja under Section 2(iii)(b), NDPS Act which reads as under: “(iii) “cannabis (hemp)” means— … (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated;” (emphasis added)

28. It is, therefore, claimed that material can be considered ganja if it is accompanied with flowering or fruiting tops; if not accompanied with flowering or fruiting tops, then seeds and leaves have to be excluded. Ex facie, as per the chargesheet, applicant claims that material seized was described as seedy and leafy substance and, therefore, the material seized in its entirety would not constitute as ganja for the purpose of determining the quantity of contraband seized, and benefit of bail ought to be given to the applicant.

29. The FSL report dated 14th January 2021 describes exhibits/ parcels received as containing “dried greenish brown fruiting and flowering vegetative material” which were found to be “ganja”. Reliance of applicant’s counsel on decision of Bombay High Court in Kunal Dattu Kadu (supra) may not come to his rescue since it is stated in said decision that in para 17 that whether substance is ganja would have to be determined on the facts of the case. That case involved anticipatory bail and the issue on which the opinion of Court went in favour of accused was discrepancy in what was seized and what was analysed.

30. Though the decision in Kunal Dattu Kadu (supra) is restricted to its own facts, reference may be made to another recent decision by the Nagpur Bench of Bombay High Court in Mohammad Jakir Nawab Ali v. The State of Maharashtra thr. P.S.O., P.S. Sonala, Dist. Buldhana decision dated 20th September 2024 in Criminal Application (BA) No.602/2024. It was noted, in a seizure of 50 kgs of ganja, that there was nothing on record to show that before taking weight of material the IO had segregated the seeds or other parts of the plant in order to ascertain the exact quantity of the contraband – ganja. The contraband seized was not mentioned as including flowering or fruiting tops of cannabis plant; since the material seized was leaves, seeds, stems, and stalks and separation had not been carried out, the Court noted that it was difficult to ascertain whether the quantity could be commercial. Court, therefore, granted bail to the applicant in that case. Relevant portions of the decision read as follows:

7. The above state of affairs would make it clear that there is nothing on record to prima facie show that before carrying weight of the seized plant of ganja, the investigating officer had segregated the seeds or the other parts of the plant in order to ascertain the exact quantity of ganja. In fact, none of the paper mentions that the said contraband articles which were seized includes the flowering or fruiting tops of cannabis plant. This fact becomes further clear from the panchanama also. The seizure panchanama also nowhere shows that the flowering or fruiting tops of cannabis plant were, in any other manner, were along with the contraband articles seized from the possession of the present applicant. Thus, on perusal of the material on record shows that what was seized was plant i.e. leaves, seeds, stems and stalks and without separating the same, the ganja was weighed. As the seized material was not weighed and after separating the leaves and the other parts and moreover it is not along with the flowering or fruiting tops. Therefore, it is difficult to ascertain whether quantity can be said to be commercial.

8. In view of Section 37 of the NDPS Act, the power to release an accused on bail subject to the limitation contained in Section 439 of the Cr.P.C. coupled with the limitation contemplated in view of Section 37 itself, mainly (1) there are reasonable ground for releasing that accused is not guilty of such offence, (2) that he is not likely to commit such offence while on bail. The expression reasonable ground means something more than prima facie ground it contemplates substantial probable cause for believing that the accused is not guilty of the offence.

9. It is significant to note that the definition of ‘ganja’ under NDPS Act takes in its ambit only the flowering or fruiting tops of cannabis plant and excludes the seeds and leaves when not accompanied by the tops. Thus, the definition of ‘ganja’ is restricted and it does not include the seeds and leaves of ganja plant. The panchanama and seizure do not reflect presence of flowering or fruiting tops on the plant. Another aspects of the matter is whether applicants could be said to have been charged for dealing in commercial quantity of the contraband articles. The inventory certificate mentions of the plant of ganja, which is of greenish colour and it nowhere shows that it includes the flowering or fruiting tops. If at all the seeds and other parts were to be counted as fruiting part, it ought to have been excluded and weighed separately to measure the quantity of ganja.”

31. There is no clarity in the seizure memo as to whether the seized heterogenous material contained flowering or fruiting tops; the only reference to something of that nature comes on record from the FSL Report which mentions “dried greenish brown fruiting & flowering vegetative material”. Even though the FSL report mentions it as ganja, the accused would obviously have an opportunity to argue this aspect at the stage of trial depending on the evidence that is led.

32. Counsel for applicant has, additionally, pointed out the issue of discrepancy in weight of contraband seized. While, as per the chargesheet, 125 kgs was seized from the house of the applicant while

5.09 kgs was seized from applicant’s bag, totalling to 130.09 kgs, what was submitted along with the application under Section 52A(2), NDPS Act application before the Magistrate was ‘143 kgs’ of ganja, even though the application itself stated that there was recovery of 130.09 kgs of ganja. Counsel for applicant, therefore, points to some reasonable doubt in the issue of what exactly was the amount of contraband seized and how 13 kgs could be added at the stage when material was submitted before the Magistrate.

33. APP for State has countered the same by stating that due to moisture the weight must have increased, however, increase of 13 kgs between seizure on 15th December 2020 and Magistrate noting on 18th December 2020 is an issue of concern. The note of the Magistrate further has an endorsement that the main IO was not available on that day.

34. Counsel for applicant highlighted that seizure of cash from house of applicant was in relation to a property which had been recently sold by applicant, agreement to sell for which has been attached. A perusal of the agreement to sell would show that it is dated 29th October 2020 and was executed by the wife of applicant. Even though nothing substantial can be ascertained from the terms of the agreement to sell, the fact that money recovered was from sale of contraband cannot be readily ascertained.

35. Counsel for applicant further contended that lack of photography or videography despite being aware that no public witness would be available would raises serious doubts about the search and seizure conducted by the respondent authorities. In this regard, various views have been taken by Courts in India. A coordinate Bench of this Court in Bantu v. State Govt of NCT of Delhi 2024:DHC:5006 dealt with the issue of lack of photography or videography in the absence of public witness and took note of observations by the Apex Court in Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311 emphasising role of audio-visual technology in enhancing the efficacy and transparency in the Police investigations. Further, in Bantu (supra) Court noted the need of changing times as incorporated by the Bharatiya Nagarik Suraksha Sanhita, 2023 [“BNSS”], where the practice of photography and videography has now been made mandatory as part of the investigation.

36. While the legitimacy of the search and seizure conducted by respondent authorities will be tested during trial, absence of public witnesses and photography/videography raises concern at this stage

37. What is of greater relevance in this case is the prolonged incarceration of applicant – for more than 3.[5] years and only 2 or 3 witnesses having been examined out of arrayed 23 witnesses. As noted above, there is no previous involvement of applicant and he has been granted interim bail on 3 occasions where he surrendered on time. In this regard the Supreme Court has, in the cases noted as under, has taken a view in certain cases that accused under NDPS Act case can be released merely on issue of prolong custody. While there cannot be any formulaic application of such a principle, the surrounding facts and circumstances, aspects of seizure, and nature of contraband have to be considered. Relevant portions of decisions of the Supreme Court in this aspect are reproduced as under: i. Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109 where a recovery of 247 kgs of ganja was made and the applicant had been in custody for more than three and a half years, with no criminal antecedents, the Court held as under:

iii. In Man Mandal & Anr. v. State of West Bengal 2023 SCC OnLine SC 1868 where the seizure was commercial in nature and the applicant had been incarcerated for about two years and there was no hope of the trial concluding soon, the Supreme Court while granting bail stated as under:

iv. In Badsha Sk. v. State of West Bengal 2023 SCC OnLine SC 1867 where the seizure was of 100 bottles of Phensedyl Cough Syrup (100 ml. each), containing Codeine Phosphate, the applicant had been in custody for about 2 years 4 months and the trial was yet to commence, the Supreme Court while granting bail noted as under:

38. Aside from this, reliance has also been made by counsel for applicant on Rajesh Kumar (supra) which involved recovery of 3.16 kgs of charas and custody was more than 2.[5] years and trial was yet to begin; accused having no previous involvements was granted bail by a coordinate Bench of this Court. Relevant portions of the decision are as follows:

undue delay in the completion of trial. It has been held that prolonged incarceration, generally militates against the right to life and liberty guaranteed under Article 21 of the Constitution of India and therefore, the conditional liberty must override the statutory embargo under Section 37 of the NDPS Act.

18. The accused has been in custody for more than two and a half years. The trial is yet to begin, with the supplementary charge sheet having been filed only on 12.01.2024. There is no likelihood of the trial coming to a conclusion any time soon. The Nominal Roll of the applicant also shows that he does not have any criminal antecedents and his conduct in jail has been ‘good’.

19. Keeping in view the above referred judgments, in my opinion, the applicant has been able to make out a case for being released on bail.”

39. In Suraj (supra), this Court considered custody of 3 years 8 months approximately in a seizure of 10 kgs of charas and granted bail.

40. Counsel for applicant relied on order dated 23rd August 2024 in W.P.(Civil) 406/2013 titled In Re-Inhuman Conditions In 1382 Prisons whereby the Supreme Court has directed that Section 479, BNSS shall retrospectively apply even to accused who are undergoing trial prior to the BNSS coming into force. Essentially Section 479, BNSS allows first-time offenders who have been incarcerated for about 1/3rd of the period for which he may be sentenced, to be released on bail. Relevant portions of the aforesaid decision are reproduced as under:

Code of Criminal Procedure, 1973 w.e.f. 01st July, 2024, contains a provision under Section 479 relating to the ‘Maximum period for which an undertrial prisoner can be detained’. The attention of this Court was drawn to the first proviso to Section 479 to urge that a first-time offender (who has never been convicted for any offence in the past) is required to be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such an offence under a particular law.

2. Having regard to the fact that the substituted provision under the BNSS is more beneficial visa-vis Section 436A of the Code of Criminal Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this Court had called upon the learned Additional Solicitor General to obtain instructions from the Department and submit a clarification regarding application of the said provision to all undertrials across the country.

3. Today, Ms. Aishwarya Bhati, learned Additional Solicitor General, submits that pursuant to the aforesaid order, instructions have been obtained from the Department to the effect that the aforesaid provision under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July, 2024, the date when the newly minted legislation has come into effect.

4. In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of onehalf/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails which is the primary focus of this Court in the present petition.”

41. Though the benchmark is 1/3rd of maximum imprisonment specified for such an offence; applicant’s counsel has adverted to this as a useful guideline to consider prolonged custody. In any event, considering that applicant has undergone incarceration for more than 3.[5] years, has no previous involvements, having been granted bail on 3 previous occasions without any misuse, as well as submissions of applicant’s counsel having raising certain doubts and possible discrepancies in seizure itself and nature of contraband, the Court considers it fit to grant bail to applicant, particularly since the trial is pending and only 2-3 witnesses have been examined so far out of 22 odd witnesses.

42. Consequently, the applicant is directed to be released on bail on furnishing a personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount subject to the satisfaction of the Trial Court, further subject to the following conditions: i. Applicant will not leave the country without prior permission of the Court. ii. Applicant shall provide permanent address to the Trial Court. The applicant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Applicant shall appear before the Court as and when the matter is taken up for hearing. iv. Applicant shall join investigation as and when called by the IO concerned. v. Applicant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. vi. Applicant will mark presence physically before the concerned I.O. every Tuesday on 4 pm and will be not kept waiting for more than an hour. vii. Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with any of the prosecution witnesses, the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case.

43. Needless to state that any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter.

44. Copy of the judgement be sent to the concerned Jail Superintendent for information and necessary compliance.

45. Accordingly, the bail application is disposed of. Pending applications (if any) are disposed of as infructuous.

46. Judgment be uploaded on the website of this Court.

JUDGE OCTOBER 21, 2024/SM/sc