Nagesh Sharma v. The State (N.C.T of Delhi)

14. In so far as the contention of learned Senior counsel with respect to the maintainability of the present second application for bail is concerned, it is settled law the successive bail applications, though maintainable, can be entertained only if there is a change in circumstances or any fresh ground is being raised. The Hon‘ble Supreme Court, in ‗Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2018) 11 SCC 458‘, held as under: ―30. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.‖

15. In the present case, a coordinate bench of this Court had dismissed the first bail application filed on behalf of the present applicant on merits, after examining the contentions raised at the time of hearing of the said bail application. The said order was admittedly carried in appeal before the Hon‘ble Supreme Court and the said SLP was dismissed. The Hon‘ble Supreme Court, in ‗Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr., (2005) 2 SCC 42‘ has held as under: ―19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.‖ (emphasis supplied) This Court, thus, cannot re-examine the issues determined in the previous bail application. The grounds taken in the previous bail application and decided by the learned Single Judge are therefore, not open for the applicant to raise in the present application, especially when the said order has been upheld by the Hon‘ble Supreme Court.

16. A bare perusal of the order dated 24.11.2020 dismissing the previous bail application reflects that no adjudication had taken place with respect to non-compliance of second proviso to section 42(1) of the NDPS Act. In view of the aforesaid, the present application for bail is being examined on the ground raised with respect to non-compliance of second proviso to Section 42(1) of the NDPS Act and the period of incarceration.

17. At this stage, it is necessary to extract the law laid down by the Hon‘ble Supreme Court in ‗State of Punjab v. Balbir Singh, (1994) 3 SCC 299‘ with regard to non-compliance of Section 42 of the NDPS Act. It was held as under: ―25....(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case....”

18. It is also pertinent to refer to the decision of the Hon‘ble Supreme Court in ‗State of Rajasthan v. Jagraj Singh alias Hansa, (2016) 11 SCC 687‘. The facts of the said case were that based on a secret information regarding contraband being carried in a vehicle (jeep), the said conveyance/vehicle was intercepted and contraband was recovered from therein. While dealing with the findings recorded in the judgment of the High Court of Judicature of Rajasthan impugned therein, the Hon‘ble Supreme Court noted as under: ―15.Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42(1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded.‖ Thereafter with respect to the finding arrived at in the judgment impugned therein with regarding applicability of Section 43 of the NDPS Act, the Hon‘ble Supreme Court noted as under: ―21....In view of the above, the jeep cannot be said to be a public conveyance within the meaning of Explanation to Section 43. Hence, Section 43 was clearly not attracted and provisions of Section 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction.‖ Thus, upon an examination of the aforesaid findings of the Hon‘ble High Court of Judicature at Rajasthan, the Hon‘ble Supreme Court held as under: ―22. There is one more aspect which needs to be noted. The present is a case where the prosecution itself has come with case that secret information was received from the informer which information was recorded in Ext. P-14 and Ext. P-21 roznamcha and thereafter the Station House Officer along with the police party proceeded towards the scene. The present is not a case where the Station House Officer suddenly carried out search at a public place. The Station House Officer in his statement has also come up with the facts and case to prove compliance with Section 42. When search is conducted after recording information under Section 42(1), the provisions of Section 42 have to be complied with. This Court in Directorate of Revenue v. Mohd. Nisar Holia [Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370: (2008) 1 SCC (Cri) 415] had occasion to consider Sections 41, 42 and 43 Explanation. The following was stated in para 14: (SCC pp. 377-78) ―14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance with Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance with the said provision would not render the search a nullity. A distinction therefore must be borne in mind between a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance.‖

23. Thus the present is not a case where Section 43 can be said to have been attracted, hence, non-compliance with Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused. This Court had occasion in a large number of cases to consider the consequence of non-compliance with the provisions of Sections 42(1) and 42(2), whether the entire trial stands vitiated due to above noncompliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab v. Balbir Singh [State of Punjab v. Balbir Singh, (1994) 3 SCC 299: 1994 SCC (Cri) 634]. In the above batch of cases, the High Court has acquitted the accused on the ground that search was conducted without conforming to the provisions of the NDPS Act. Sections 41, 42, 43 and other relevant provisions came up for consideration before this Court, referring to the provisions of Chapter IV the following was stated in para 8: (SCC pp. 311-12) ―8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered have to proceed and act under the provisions of Sections 41 and 42. Under Section 42, the empowered officer even without a warrant issued as provided under Section 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of Section 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior.‖ Finally, while taking note of the law laid down in ‗Karnail Singh v. State of Haryana, (2009) 8 SCC 539‘, the Hon‘ble Supreme Court held as under: ―29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para

5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that non-compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.‖

19. Similarly, in ‗Boota Singh & Ors. v. State of Haryana, 2021 SCC OnLine SC 324‘, wherein again based on a secret information with respect to contraband in a vehicle/conveyance, raid was conducted and the person found sitting in the said vehicle/conveyance were apprehended, the Hon‘ble Supreme Court, while taking note of the pronouncements in Jagraj Singh (supra) and Karnail Singh (supra) held as under: ―15. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression ―public place‖ as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.‖

20. In the decision relied upon by the learned APP for the State, i.e, Dharminder Kumar (supra), the facts therein were that the seizing officer was present at the spot for nakabandi and received the secret information there itself, unlike in the present case wherein the secret information was admittedly received on 28.02.2018 at about 04:00 PM and the raid was conducted the same day, at about 07:45- 08:00 PM. It is further pertinent to note that the judgment in Dharminder Kumar (supra) does not take into account the explanation to Section 43 of the NDPS Act, which has been duly considered by the Hon‘ble Supreme Court in Jagraj Singh (supra) and Boota Singh (supra). The explanation to Section 43 of the NDPS Act reads as under: ―Explanation.—For the purposes of this section, the expression ―public place‖ includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.‖

21. Admittedly in the present case, the vehicle involved was a private vehicle and not a public conveyance. It is further pertinent to note that the secret information, in the present case was received by the concerned officer at about 04:00 PM and the fact that the proposed search/apprehension could have taken place after sunset would be logical and expected. In these circumstance, the requirement of second proviso to section 42(1) of the NDPS Act could have been complied with without any impediment. There is no document on record to show compliance of the same.

22. It is rightly contended on behalf of the applicant that the admitted case of the prosecution, as put forth in the chargesheet, is that all the conditions as envisaged in Section 42 of the NDPS Act were complied with. This in itself is an admission on the part of the prosecution that provisions of Section 42 were applicable to the facts and circumstances of the present case and therefore, the necessary compliances had to be adhered to by the prosecution.

23. It could be the contention of the prosecution that there can be no estoppel against statute and law. But, as discussed hereinabove, the Hon‘ble Supreme Court, in the pronouncements cited, has clearly spelt out the facts and circumstances with respect to the applicability of Sections 42 & 43 of the NDPS Act. In view thereof, this Court is of the opinion that there has been a prima-facie non-compliance of second Proviso to Section 42(1) and therefore an obvious non-compliance of Section 42(2) of the NDPS Act.

24. The contention of the learned APP that the issue of non-compliance of Section 42 or applicability of Section 43 of the NDPS Act would be a matter for trial and the same cannot be determined at this stage cannot be sustained. This Court, for the purposes of granting bail, has to examine the legal issues for the purpose of Section 37 of the NDPS Act. The Hon‘ble Supreme Court of India, in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, while explaining the term ―reasonable ground‖ in context of Section 37(1)(b)(ii), observed as under: ―6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.

7. The expression used in Section 37 (1)(b) (ii) is ―reasonable grounds‖. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.‖ In view of the above, this Court for the limited purpose of deciding the present bail application has to arrive at a prima-facie finding with regard to the legal issues raised herein.

25. It has been pointed out that the present applicant has been released on interim bail by orders of a coordinate bench of this Court and the said interim bail was extended from time to time. The applicant is stated to have duly surrendered on the expiry of the same and has not misused the liberty granted to him. The applicant has been in judicial custody since 03.09.2018. It is noted that only two witnesses have been examined out of forty-five cited by the prosecution and the trial is likely to take a long time. The Hon‘ble Supreme Court, in Union of India v. K.A. Najeeb, (2021) 3 SCC 713 observed that if a timely trial is not possible, courts are ordinarily obligated to release the undertrial on bail and statutory restrictions do not exclude the discretion of constitutional courts to grant bail on grounds of violation of fundamental rights enshrined in Part III of the Constitution. It was held as under: ―15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15: 1995 SCC (Cri) 39], it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. xxx

17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent‘s prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant‘s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent‘s rights guaranteed under Part III of our Constitution have been well protected.‖

26. It is further noted that the present applicant is not involved in the any other offences relating to the NDPS Act.

27. In view of the aforesaid discussion, this Court is of the opinion that the twin conditions of Section 37 of the NDPS Act are satisfied. The chargesheet in the present case stands filed. The trial is underway and is likely to take a long time, no useful purpose will be served by keeping the applicant in judicial custody any further.

28. In view of the facts and circumstances of the present case, the application is allowed and the applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- alongwith two sureties of like amount to the satisfaction of the learned trial Court/Duty Magistrate, further subject to the following conditions: i. The memo of parties shows that the applicant is residing at House NO. 60, near Rameshwaram, VPO Chhajarsi, Sector 63, NOIDA, Gautam Budh Nagar, Uttar Pradesh - 201307. In case of any change of address, the applicant is directed to inform the same to the Investigating Officer. ii. The applicant shall report shall report at PS Crime Branch twice in a week, i.e., on every Wednesday and Friday at 10:30 AM and the concerned officer is directed to release him by 11:00 AM after recording his presence and completion of all the necessary formalities. iii. The applicant shall not leave India without the prior permission of the Trial Court. iv. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times. v. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witness in any manner. vi. In case it is established that the applicant has indulged in similar kind of offences or tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.

29. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case pending before the learned Trial Court.

30. The application stands disposed of along with all the pending application(s), if any.

31. Let a copy of this judgment be communicated to the concerned Jail Superintendent.

AMIT SHARMA JUDGE MARCH 28, 2023