PANDURANG NARAYAN PAGADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicants had moved this court by filing application under section 430 of Cr.P.C. praying for bail. THE applicants were arrested on 1-4-1995. As per the charge-sheet, on 1-4-1995 P.S.I. Sardesai received the instructions from his superior officers and the P.S.I. was directed to make the investigation in connection with the said information received by the superior officer. As per the information applicant No.1 was selling Ganja to the persons known to him. While taking the staff with the Panchas, Mr. Sardesai had also taken one punter to the village where the accused No.1 lives and one currency note of Rs.10/- denomination was given to the said punter viz. Kacharu Gaikwad directing him to approach applicant No.1. Applicant No2 was sitting in the Fire Depot. THE punter enquired about applicant No.1 and also enquired about availability of Ganja and in fact the punter had purchased Ganja. As per the instructions the said witness gave signal to the raiding staff and the raiding staff effected the raid. During the search, Sardesai had taken personal search of the person who was sitting in the Fire Depot, viz. applicant No.2. Sardesai had also asked applicant No.2 whether he required to have his search taken in the presence of Magistrate or a Gazetted Officer. However, applicant No.2 had not chosen to be searched in the presence of any Magistrate or Gazetted Officer and accordingly the search was carried out on the spot. During the search the currency note of Rs.10/- denomination was found with applicant No.2 and 1 kg. of Ganja was found in the heap of fire-wood. Applicant No.2 was interrogated and he also disclosed that remaining Ganja was kept in the house of applicant No.1 and the applicant No.2 also stated that applicant No.1 was supplying Ganja to him.

(2.) IT is also the case of the prosecution that thereafter the applicant No.2 took the police and Panch witnesses along with the police staff to the house of applicant No.1. At that time applicant No.1 was present in his house and the police had informed him that they wanted to take search of his house as, as per the information received by the police, Ganja was kept in the house. During the search of the house of applicant No.1 about 21 kgs. of Ganja was found and the said Ganja was recovered under Panchanama. The offence accordingly was registered under sections 20(3), 22 and 25 of the N.D.P.S. Act. The application for bail was moved by both the accused before the learned Sessions Judge, Pune in N.D.P.S. Case No.30 of 1995. The said application for bail under section 439 Cr.P.C. was moved by presenting the same on 18-5-1995 on the ground that both the accused are innocent, they have not committed any offence and they are falsely implicated in the offence. Their further contention was that the offence in relation to Ganja is punishable under Section 20(b)(1) of the N.D.P.S. Act and hence the offence is bailable one. One of the accused-original accused No.3 is also released on bail by the High Court and further the investigation of the crime is already completed and the charge-sheet is also submitted. The panchas acted in the present case are habitual panchas of the Wadagaon Maval Police Station and further the mandatory requirement of the N.D.P.S. Act are not followed and prayed that the applicant-accused be released on bail. Dealing with the said application of the accused the learned Addl. Sessions Judge as per his order dated 2-6-1995 rejected the application by a speaking order. The learned Judge while examining the various authorities cited before him had also discussed the same in paragraphs 8 and 9 of the order and while examining the case, the court has observed that the observations made in t he cases cited before him cannot help the applicant accused while considering the case of the accused in connection with the involvement of the present offence. The court has also while considering the provisions of section 20(b) and section 37(1)(b) of the N.D.P.S. Act and considering the case in the matter of Sk. Chhotu Sk. Roshan Vs. State of Maharashtra reported in 1995(1) Mh.L.J. 228, held that there is a clear bar in the provisions of section 37 and accordingly rejected the prayer for bail. Accordingly the present application for bail was moved by filing the application on 6-6-1995. Along with the application the applicant has annexed the copy of the application for bail moved by the accused and the order dated 2-6-1995 passed by the learned Addl. Sessions Judge, Pune and also produced certain reported and unreported judgments of our High Court and submitted that the accused be released on bail. Even in this application all the grounds urged before the learned Sessions Judge were pressed in service and prayed that the applicant-accused be released on bail.

(3.) MR. Jamdar accordingly submits that looking to the various orders passed by this Court and more particularly when the co-accused, original accused No.3 was released on bail by this court, the accused be released on bail. On the other hand, the learned A.P.P. MR. Nalawade has strongly opposed this application for bail and submitted that considering the prosecution case a large quantity of Ganja was recovered from the applicant-accused. Prima facie, considering the material which form part of charge-sheet indicate that the applicant-accused are involved in a very serious offence and when a large quantity of Ganja was recovered from the applicants-accused, this court is not required to entertain this application by granting bail in favour of the applicants-accused and that the application be rejected. In his support, he relied upon the decision in the matter of Sundaresan v. State reported in 1993 Cri. L.J. page 3342 wherein the Madras High Court while dealing with the application for bail had considered the provisions of section 37(a) and 20(b)(i) and has held that the offence under section 20(b)(i) punishable for a term of five years comes within the purview of section 37(b) of the N.D.P.S. Act. The case before the Madras High Court was that the accused was arrested in connection with the offence punishable under section 20(b)(i) of the N.D.P.S. Act, 1985. The Inspector of Police attached to Pondy Bassar Police Station, Madras had seized 1 kg. 50 gms. of Ganja from the petitioner and remanded to judicial custody for 15 days. According to the accused the order of remand was illegal and the entire story of the prosecution is false and fabricated and the petitioner, after the arrest, was confined in a hotel room and he was not informed of the grounds of arrest nor he was permitted to inform his people or to consult legal practitioner of his choice and even all the mandatory procedure prescribed were not followed. Dealing with the application for bail and considering the relevant provisions of the N.D.P.S. Act and more particularly the provisions of section 20(b)(i) and the provisions of section 37(1) the court has not accepted the submissions of the counsel of the accused that the offence under section 20(b) of the N.D.P.S. Act does not come within the purview of section 37 (b) of the N.D.P.S. Act. The Court has in paragraph 25 observed as under:- "The Petitioner has stated in his application for bail that he is an upright man with honest means and that he has no previous bad antecedents. According to him, he had not committed any offence at any time much less any offence under NDPS Act. He has also stated that he is a law abiding citizen and he will not flee from justice and that he will not commit any offence if he is released on bail. We have also perused the affidavit of the petitioner, the affidavit of Smt. Vijayalakshmi Jayakumar and Shanmugham alias Shyam. As per S.37(a) of the NDPS Act every offence punishable under NDPS Act is cognizable. We are unable to agree with the learned counsel for the petitioner that the offence alleged against the petitioner under S.20(b) of the NDPS Act does not come within the purview of S.37(b) of the NDPS Act. The petitioner is also subject to the provisions of S.37(b) of the NDPS Act. The word `punishable' is found in both the sections, namely, S.20(b) and also S.37(b) of the NDPS Act. As per S.20(b) of the NDPS Act, the maximum punishment is five years and whereas as per S.37(b) of the NDPS Act, the punishment is for a term of five years or more that means that the punishment can be for a term of five years also or more. Therefore, we are of the opinion that there is no distinction with regard to applicability of S.37(b) of the NDPS Act for the offence punishable under S.20(b) of the NDPS Act. No material has been placed by the prosecution to rebut the contention of the learned counsel for the petitioner to hold a contrary view that the petitioner is not an upright man with honest means. The petitioner also has stated that he has no previous bad antecedents which fact has not been rebutted by the prosecution. The petitioner has also stated that he would not commit any offence if he is released on bail. These facts have not been rebutted by the prosecution by letting in any material. Therefore, we are of the view that the petitioner satisfies the restrictions imposed under S.37 of the NDPS Act. Further we hold that the petitioner was not informed by the respondent of the grounds of arrest and that the respondent has not reduced into writing of his belief from personal knowledge that the petitioner is in possession of the narcotic substance as per S.42 of the NDPS Act. This is violation of mandatory provisions of the NDPS Act."