REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1754  OF 2008

(Arising out of SLP (Crl.) No.1777 of 2008)   

Ratan Kumar Vishwas …Appellant    

    Versus

State of U.P.  & Anr. … Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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1. Leave granted.

2. Challenge in this appeal is to the Judgment of a learned Single Judge

of  the  Allahabad  High  Court  dismissing  the  application  filed  by  the

appellant  for  suspension  of  sentence  and  grant  of  bail.   Appellant-Ratan

Kumar  Vishwas  has  filed  an  Appeal  No.  6636  of  2006  questioning  his

conviction  the  offence  punishable  under  Sections  27A  and   29  of  the

Narcotic Drugs and Psychotropic Substances Act,  1985 (in short ‘the Act’).

He was sentenced to undergo rigorous imprisonment for 14 years and to pay

a  fine  of  rupees  two  lacs  with  default  stipulation.   Learned  Additional

Sessions  Judge,  Fast  Track  Court   No.  1,   Kanpur  Nagar  has  found  the

appellant guilty and convicted  and sentenced him as aforesaid.

3. Brief facts of the case as projected by prosecution are that a secret

and reliable information on 5.3.2004 was received by the complainant an

officer  of  the  N.C.B.,  Varanasi  that  huge  quantity  of  Charas  was  being

brought  from Nepal  to  Kanpur  in  Truck No.  UHN 9137 and same was

standing  at  Kanodia  Auto  Centre,  Lucknow  Kanpur  bypass  road  and  it

belonged  to  Akhilesh  Kumar  Bajpai  son  of  Srikant  Bajpai,   resident  of

127/333, Nirala  Nagar, Kanpur Nagar.  This information was reduced to

writing and thereafter Intelligence Officers,  U.K. Singh and K.K. Mishra

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along with S. Rallabhandi,  S.K. Singh and R.K. Gupta,  also  Intelligence

Officers,  Ramnath,  sepoy  with  driver  Vijendra  Kumar,  proceeded  from

camp office,  Gujani  in  departmental  vehicle  number U.P.  65-S-6951 and

U.P 65-V-7826 and reached near the Kanodia Auto Centre at about 9 p.m.

Two persons standing nearby were called and they disclosed their names as

Rajendra Prasad and Ramjee Singh.  After explaining the purpose for which

they were requested to be present i.e. during search, they agreed. At 9.05

p.m. a  team reached near  the  above truck  and three  persons  were found

sitting inside the truck and on enquiry they disclosed their names as Bhola

Prasad,  Shambhu  Prasad   and  Lalji  Yadav.  On  asking  Bhola  Prasad

disclosed  that  he  was  driver  of  the  Truck  and  Lalji  was  cleaner  and

Shambhu Prasad  was  owner  of  the  Truck  and  told  that  on  reaching  the

petrol pump at Kanpur, he had to contract Akhilesh Kumar Bajpai on phone

number  0512-2616517.  These officers  gave their  identity to these three

persons  and  asked  them  in  writing  if  they  desired  their  vehicle  to  be

searched in presence of a Gazetted Officer or a Magistrate which was their

legal right.  But they declined in writing and offered that the search be made

by  them.   At   this  the  officers  of  the  N.C.B.  searched  the  vehicle  in

accordance with law and in the presence of two witnesses and they found

black colour  plates wrapped in polythene kept in plastic bags in specially

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made secret cavity behind the cabin of the Truck.  On testing with the test

kit possessed by the N.C.B. Officers, the recovered black colour plates were

found to be Charas.  The recovered  Charas was seized along with vehicle.

However, due to darkness and unavailability of weighing   facility and for

security  reasons,  the  vehicle  and  the  arrested  persons  were  taken  to  the

Customs and Central Excise Office, Kanpur Nagar where they reached at

about 10.45 p.m.  They  recovered 14 plastic bags which were weighed and

the gross weight was 252.500 Kgs.  and the net weight was 250.400 Kgs.

Two samples of 25 grams each were drawn from all the 14 bags and were

marked and kept in separate sealed envelopes.  All the packets of samples

were signed by the accused persons and the witnesses and the officers of the

N.C.B. The accused Bhola Prasad, Shambhu Prasad admitted that they had

to take that Charas to Akhilesh Kumar Bajpai.  They also told that accused

Govind Singh of Nepal State with the help of accused Kamal and Virendra

Kumar had visited Veerganj in Nepal few days earlier to meet  Govind and

to finalise the deal for Charas.

4. At that time, the recovery memo was also prepared which was duly

signed by the accused, witnesses and the officers of the N.C.B.  Thereafter

the  officers  of  the  N.C.B.,  independent  witnesses  Sri  S.R.  Agarwal,

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superintendent, Kailash Chandra, Inspector of Customs and Central Excise

and police force of  Kidwai Nagar reached the house of Akhilesh Kumar

Bajpai in Nirala Nagar at about 12.30 a.m. on 6.3.2004.  A person   opened

the door and disclosed this name as Akhilesh Kumar Bajpai.  The officers

gave their introduction and also apprised him the purpose of visit and asked

him in writing if he desired his house to be searched in presence of Gazetted

Officer or a Magistrate which was his right.  But he declined in writing  and

offered search to be made by them.  House was searched in accordance with

law and  in  presence  of  the  independent  witnesses.  During  search  of  the

house Jitendra Singh, Virendra Kumar and Govind Singh were found to be

present there.  These three persons were separately given in writing if they

wanted to be searched  before a Gazetted Officer or a Magistrate as it was

their right but they declined.  On search of Virendra Kumar some papers

were recovered.

5. Akhilesh Kumar Bajpai told that this  

Charas  was  arranged  by him to  be  sold  through  appellant-Ratan  Kumar

Vishwas  of  Bharthana,  District  Etawah.  He  had  given  Rs.20,000/-  to

Jitendra  Kumar and Virendra Kumar to be given to Kamal of  Veerganj,

Nepal,  through  Govind.  Recovery  memo  was  prepared  at  the  house  of

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Akhilesh Kumar Bajpai and was signed by the witnesses and the officers as

well as the accused persons.

6. The statements of the accused persons under Section 67 of the Act

were recorded and they made their voluntary statement giving details about

their  involvement  in  the  trade of  Charas.  The  seized Charas  was  sent  to

C.R.C., New Delhi for chemical analysis through letter dated 6.3.2004 along

with test memo affixing specimen of the seal.  The Chemical Examiner gave

his  report dated 25.5.2004 and confirmed that the content of the samples

was Charas.  A detailed report about search and seizure was submitted to the

superior officer on 6.3.2004.  The Charas and the truck were deposited in

the office of the Customs and Central Excise, Sarvodaya Nagar, Kanpur.

7. On 19.3.2004 the follow up action was conducted at the residential

premises of Ratan Kumar Vishwas at 42, Sarojni Road, Bharthana, District

Etawah.   But  he  was  found  absconding  and  statement  of  his  son  was

recorded under Section 67 of the Act and he disclosed the phone number as

05680-225182 which was installed in his house in the name of his father.

The summons for appearance of Ratan Kumar Vishwas was also served on

him. The copies of the guest  register of the City Hotel and Babarchi Hotel,

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Veerganj, Nepal were obtained which were attested  by the First Secretary,

High Commission, Nepal and it  showed that Govind had stayed there on

21.2.2004. Call details of the phone of Akhilesh Kumar Bajpai installed at

his house were obtained from Mahanagar Telephone Exchange.  Details of

the visitors registers from Manager, Mahalaxmi Lodge were also obtained

and they  confirmed  that  Govind  and  Shambhu  Prasad  had  stayed  in  the

Lodge from 29.2.2004 to  5.3.2004.  Voluntary statement  of  Ratan  Kumar

Vishwas was recorded under Section 67 of the Act on 19.4.2004 and he

admitted  his  involvement  in  illicit  trade  of  Charas  and  that  he  was  also

aware of the consignment and that he was also aware of the consignment of

the  Charas  transported  by  vehicle  no.UHN  9137,  which  was  seized  by

N.B.G., Varanasi on 5.3.2004 at Kanodia Auto Centre.  He was also aware

of the fact that Akhilesh Kumar Bajpai was bringing  the consignment  of

Charas   for sale in Rajasthan through him.  Akhilesh Kumar Bajpai used to

contact him on his phone no. 05680-225182 through his phone No.0512-

2616517.   He  also  disclosed  that  he  had  given  Rs.  1.5  lacs  to  Diwakar

resident of Kidwai nagar for becoming a partner in the trade  of  

Charas and Diwakar purchased a Truck for supply of Charas from Nepal to

Indore and Rajasthan.  Ratan Kumar Vishwas was arrested on 19.4.2004.

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8. After completion of investigation charge sheet was filed.  As accused

persons abjured guilt trial was held.

9. To further the prosecution version,  witnesses  were examined while

one Rajesh Kumar was examined as DW-3.  As noted above, conviction was

recorded and appeal has been filed before the High Court.  

10. In respect of the prayer for suspension of sentence and grant of bail

the  preliminary  stand  was  that  the  conviction  is  based  on  inadmissible

evidence. It was submitted that the appellant was not the owner and he was

neither the purchaser  nor the seller and there was no recovery from him.

His conviction was based only on the statement of co-accused.  The High

Court  found that  this was not  a case where the prayer for suspension of

sentence is to be accepted. Accordingly,  the prayer was rejected.   

11. In support of the appeal, the stand taken before the High Court was

re-iterated.   Additionally,  it  was submitted that  the statement purportedly

was made on 19.4.2004 in respect of alleged incident dated 5.3.2004.  On

22.4.2004 a  telegram was sent  by DW-3 alleging  that  the appellant  was

tortured and false confessional statement was recorded.   

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12. Learned counsel for the appellant has further submitted that the rigors

of Section 37 of the Act cannot be applied to the present case after Section

32-A of the Act was held to be ultra vires by this Court.

13. In response,  learned  counsel  for  the  respondent  submitted  that  the

conviction is based on the evidence of PWs 1, 2 and 3 in addition to the

statement under Section 67 of the Act. It is pointed out that the appellant

was  found  absconding  and,  therefore,  the   statement   of  his  son  was

recorded under Section 67 of  the Act.   The telephone records  were also

verified  and  it  was  noted  that  the  involvement  of  the  appellant  was

sufficiently established.   

14. It is to be noted that in Dadu v. State of Maharashtra  (2000 (8) SCC

437) it was held that Section 32A was ultra vires to the extent it took away

the  powers relatable to Section 389 of the Code of Criminal  Procedure,

1973 (in short ‘the Code’)  In Dadu’s case (supra) it was held as follows :-  

“29.Under the circumstances the writ petitions are disposed of by holding that :

(1) Section 32-A does not in any way affect the powers of the authorities to grant parole.

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(2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act.

(3)  Nevertheless,  a  sentence   awarded  under  the  Act  can  be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment.”

15. In the said case it was clearly observed that a sentence awarded under

the  Act can be suspended by the Appellate Court only and strictly subject to

the conditions  as spelt out in Section 37 of the Act.

16. To  deal  with  the  menace  of  dangerous  drugs  flooding  the  market,

Parliament  has  provided that  a  person  accused  of  offence  under  the Act

should not be released on bail during trial unless the mandatory conditions

provided under Section 37 that there are reasonable grounds for holding that

the accused is not guilty of such office and that he is not likely to commit

any  offence  while  on  bail  are  satisfied.  So  far  as  the  first  condition  is

concerned,  apparently  the  accused  has  been  found  guilty  and  has  been

convicted.   Section 37 of the Act reads as follows :-

“Offences  to  be  cognizable  and  non-bailable-  (1) Notwithstanding  anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

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(a) every  offence  punishable  under  this  Act  shall  be cognizable;

(b) no person accused of an offence punishable for offences under  section  19  or  section  24  or  section  27A and  also  for offences  involving  commercial  quantity  shall  be  released  on bail or on his own bond unless-

(i) the  Public  Prosecutor  has  been  given  an opportunity to oppose the application for such release, and

(ii) where  the  Public  Prosecutor  opposes  the application,  the  court  is  satisfied  that  there  are  reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on grant of bail.”

17. The High Court has dealt with the factual position in great detail to

conclude that the parameters of Section 37 are not fulfilled to warrant grant

of bail  by suspension of sentence.  We find no reason to interfere in the

matter.  The  High  Court  is  requested  to  dispose  of  the  Criminal  Appeal

pending before it expeditiously.

18. Learned  Counsel  for  the  appellant  submitted  that  the  appellant  is

ailing  and  needs  treatment.  It  is  open  to  him  to  move  the  appropriate

authorities for providing such medical treatment as is needed.  

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19. The appeal fails and is dismissed.  

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

……………………………………J. (D.K. JAIN)

New Delhi:  November 7, 2008

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