NDPS case against Forest officers

Forest Range officers Bail rejected by High Court

19/11/2018

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
BA No. 184/2018
Date of order: 03.11.2018
Pankaj Khajuria vs State of J&K

Coram:
Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For /applicant/Petitioner(s): Mr. B. S. Salathia, Sr. Advocate with
Mr. Jagpal Singh, Advocate
For respondent (s) : Mr. F. A. Natnoo, AAG
Mr. Bishan Dass Sharma, I.O present in person.
i) Whether to be reported in
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant application filed under Section 497-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) applicant seeks bail in FIR No. 108/2018 dated 02.10.2018 for commission of offence under Sections 08/15 NDPS Act, 147/148/353/323/109 RPC.
2. Facts, relevant for disposal of the present bail application, briefly stated are that applicant is a government servant and is holding the post of Range officer in the Forest Department. On 2nd October, 2018 at about 3.15 PM, he while discharging his official duties as I/c Range Officer Lakhanpur at forest check post, Lakhanpur received a specific information that forest produce was being illegally carried in a truck bearing registration NoJK13A-9512 from out of the State of Jammu and Kashmir. Applicant as such, having the specific information, laid a Naka along with other officials of the forest department and truck was taken to the office of the applicant for physical checking of the vehicle as the truck was fully loaded and required to be thoroughly checked by the officials of the forest department to find out the forest produce which was being illegally transported outside the state of Jammu and Kashmir. It is stated that after the truck was taken to the office of the applicant and before any verification could be done with respect to the contents loaded in the aforesaid truck, applicant along with other police personnel of Police Station Lakhanpur District, Kathua as also the police personnel posted in the Police Post Industrial Estate Kathua, broke opened the locks of the Gate of the Forest Check Post where the truck had been parked and started physically beating the applicant and other forest officials posted in the said Check Post, who were present on spot. It is further stated that the applicants well as other staff posted in the Forest Check Post were surprised to see the aforesaid conduct of the police personnel as the said personnel were behaving like goons and were interfering with the discharge of duties by the applicant. It is stated that serious injuries were inflicted by the non-applicant along with others upon the applicant and other staff posted in the Forest Chock Post and in this incident ear drum of one of the forest guard got damaged due to the injuries inflicted by the non-applicant and other police personnel. After breaking open the lock of the Forest Check Post, the driver along with the truck was taken away by the non-applicant from the Forest Check Post. Thereafter, immediately after the incident, applicant reported the matter to the Divisional Forest Officer, Forest Division, Kathua. It is stated that the said incident had taken place at about 3.15 PM and the truck had been apprehended by the applicant along with other forest officials at about 3 PM. It is stated that the Forest Check Post as well as the Police Station are located in the adjacent to building and are separated by only a wall.
3. Learned counsel for the applicant contended that after reporting the matter to the Divisional Forest Officer, Forest Division, Kathua, the Divisional Forest Officer took up the matter with respondent no.5 vide his Communication No KFDA-APCP-2018-19/3150-53.10.2018. Thereafter, immediately on the same day i.e., 02.10.2018, the entire matter was brought to the kind notice of the SSP, Kathua and the said Truck was handed over back to the forest officials of the forest check post, Lakhanpur. After holding the physical verification of the said truck, the applicant wrote to the non applicant to take back the truck as poppy straw is found loaded in the said truck and the same was being transported illegally outside the State of J&K. A formal application was moved before the SSH, Kathua for the registration of FIR against the non-applicant and other erring police personnel. The SSP. Kathua did not take any action against the non-applicant and other police personnel. Thereafter, applicant approached this Hon'ble this Court, and this Court order dated12.10.2018 directed the IGP, Jammu zone to consider the application of the applicant and pass appropriate orders. It is stated that the non-applicant with intent to save himself and other police personnel for their unlawful acts roped the applicant and other forest officials of the Forest Check Post in the aforementioned FIR.
4. Learned counsel for the applicant further contended that applicant along with other officials of the forest department who have been booked in the aforementioned FlR preferred a CRMC No 672/2018 tilled Pankaj Khajuria and Ors. V/s State" before this Hon'ble court and this Hon'ble court vide order dated 23-10-2018 has directed the respondent not to present challan in the aforementioned F.I.R without the prior permission of this Court. Thereafter, applicant preferred an application for the grant of anticipatory bail before the Ld. Principal Sessions Judge, Kathua and the same was transferred to the court of Ld. Additional Sessions Judge, Kathua and the Ld. Additional Sessions Judge. Kathua dismissed the same vides its order dated25-10-2018. It is stated that bare perusal of the order passed by Ld. Additional Sessions Judge. Kathua makes it amply clear that the same was passed by the court below in a very casual and mechanical manner i.e., without proper application of mind.
5. Objections have been filed by the respondent. The stand taken in the objections is that the present application filed by the applicant/petitioner is not maintainable, because in view of the fact which has also been taken note of by the learned District Sessions Judge, Kathua that the contraband Involved in the case is 500 Kg and admittedly being of commercial quantity the petitioner/applicant is thus not entitled for the concession of anticipatory in absence of otherwise any material on which satisfaction as required under Section 37 (1) (ii) can be arrived about the petitioner for not committing the same offence while on bail prayed for in the present application. Further stand taken by the respondent is that the objections is that present application is liable to be dismissed out rightly as the applicant/petitioner seeks concession of bail on the plea of being his status as an officer in the Forest Department. It is stated that the petitioner has already been involved in two FIR's bearing FIR No. 59/2017 under Section353/506/504 RPC registered at Police Section Lakhanpur and FIR No. 166/2017 under section 188/120-B/420 RPC and Section 6 of Non-Biodegradable (Management, Handing and Disposal) Act, 2007 registered at police station Kathua. It is further stated that in one of the aforesaid FIR truck owned by the real brother of the petitioner is involved in the crime.
6. I have considered the rival contentions of the parties. C/D file and I/O were also called. Counsel for petitioner has reiterated all grounds taken in the petition. In support of his contention, learned counsel for the petitioner relies upon a decision of Hon'ble Supreme Court reported in 2015 0 CrLJ 1017,
Teru Majhi and another vs. State of West Bengal and ors.
7. The factual facts as per C/D file are as under:-
“That on 02-10-2018 at about 1530 hours, one Sigct Lath Krishan No893/ of Police Post, Industrial Estate, Hats Morh, Kathua reported in Police Station and has produced a docket on behalf of SI Maninder Singh Incharge Post Post, Industrial Estate Kathua which reveals that on 02.10.2018, In charge Police Post, Hati Morh, Kathua along with Sqct Labh Krishan No. 893K, SgCt Raj Kumar No. 458/K . Karan Singh No. 97-E,SPO Ajay Kumar No. 135/K was on naka vehicle checking duty at Govindsar Morh NHW by the order of senior officer. During naka checking one truck bearing registration No. J13A/9512 coming from Jammu side was signaled to stop but the driver of the said vehicle did not stop the vehicle and ran away towards Lakhanpur. In-charge Police Post Industrial Estate Hats Morh, Kathua alongwith other police personnel followed the said truck. The said truck was found stuck in the jam at about 15.00 hours and on enquiry driver of the said truck disclosed his name as Hardeep Singh S/o Ajeet Singh caste Saini R/oNanowal Jinder Gurdanpur, Punjab and on search of cabin of the truck01 kg poppy straw was recovered from the tool box. In the meantime 5/6employees of the Forest Department of Check Post, Lakhanpur in Civvies came on spot, obstructed police officials from delivering their lawful duty manhandled the police party and forcibly took the truck along with driver to some unknown place. It is pertinent to mention herein that in order to help the accused drug smuggler i.e. the driver of the said vehicle, Forest officials with common criminal intentions took away the said truck with driver to an unknown place. The said truck could have loaded with some contraband substances. Hence the forest officials and driver have committed offence under Sections 8/15 NDPS Act, 147/148/353/332/109 RPC.
On this docket a case FIR No. 108/2018 offence under Section 15 NDPS Act, 147/48 353/332/109 RPC stands registered and investigation of the case was entrusted to SI Bishan Dass No. EXJ-785924. During the course of investigation, 1Ovisited the spot, prepared the site plan, seized one kilogram popoy straw, produced by Sub inspector Maninder Singh Incharge Police Post, Industrial Estate, Kathua and recorded the statements of witnesses. The witnesses' stated that the offending truck No. JK13A-9512 and the accused driver was forcibly taken away by (i) Range Officer, Pankaj Khajuria (ii) Deputy Inspector Forest Hans Raj (iii) Watcher Raj Kumar of FPE (iv) Bavinder Singh @ BINDA (v)Mishu S/o Bodh Raj (Brother of Range Officer Pankaj Khajjuria). During further course of action, IO started search of the offending vehicle/accused persons and found the vehicle parked in the premises of Polythene Check Post, Lakhanpur.IO found the gate of the Check Post Lakhanpur locked and Forester Kundan Lal told the IO that the keys of the lock are lying with the Range Officer, Pankaj khajuria. On 03-02-2018at 21.00 hours a telephonic message was received by SHO P/S Lakhanpur from Police Control Room, Kathua that 50 boxes of poppy straw has been recovered from the offending truck bearing registrationNo.JK13A-9512as stated by Range Officer, Lakhanpur. The 1.O alongwith Executive Magistrate, 1st Class, SHO P/S Lakhanpur, Crime photographer and other officials visited Anti Polythene Check Post, Lakhanpur to seize the contraband, but again Forester Kundan Lal refused to hand over the possession of the truck on the pretext that the keys of the gate are lying with Range officer, Panjak Khajuria(petitioner herein) who was not present on spot. On 04-10-2018, the IO alongwith Executive Magistrate, 1st Class, DYSP DAR Kathua, SHO P/s Lakhanpur, Crime Photographer and other officials visited Anti Polythene Check Post, Lakhanpur for the 3rd time and the Forester Kundan Lal after dilly-dallying the matter gave access to IO, who seized the 50 boxes of poppy straw from the premises of Anti Polythene Check Post, Lakhanpur from the offending truck bearing registration No. JK13A-9512. The sealing and samples for each box was taken in the presence of Magistrate and Fard-la-dawanama was prepared on spot and carbon copy of the same was provided to Forester Sanjev Singh on spot. The statements of Executive Magistrate, Crime Branch officials were recorded under Section 161 Cr.P.C. The vediography/ photography was also conducted on spot by the Investigation Officer. The statement of Sub Inspector namely Maninder Singh, I/c PP Industrial Estate, Kathua was recorded under Section 164-A CrPC before the Court of Special Mobile Magistrate, Kathua and the investigation of the said case is still in progress.
8. From the bare perusal of the allegations leveled in the FIR, it is evident that offences under section 8/15 of NDPS Act and 147/148/353/332/109 RPC have been made out against the petitioner and other accused. Commercial quantity of contraband weighing 500 KG of poppy straws has been recovered from the truck in question; petitioner has been arrayed as a person who was helping the other accused in transportation of poppy straws. Petitioner along with 5/6 employees of the Forest Department of Check Post, Lakhanpur have obstructed police officials from delivering their lawful duty on relevant day; they manhandled the police party and forcibly took the truck along with driver to some unknown place in order to help the accused drug smuggler i.e. the driver of the said vehicle. Thereafter truck was recovered on 4.10.2018 from the premises of Anti Polythene Check Post, Lakhanpur and 50 boxes of poppy straw were seized from the offending truck bearing registration No. JK13A-9512.
9. The petitioner has already moved an application for grant of anticipatory bail before the Additional Sessions Judge, Kathua who dismissed the same on the ground that the offence is heinous in nature and the accused is habitual offender. It has further been held by court that even otherwise bail cannot be granted due to rigor of section 37 of NDPS Act.
10 I have given my thoughtful consideration to the whole aspect of the matter.
11. Section 37 of NDPS Act reads as under
“[37. Offences to be cognizable and non-bail able;- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973(2 of 1974)-
(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 granting of bail,].”
12. This section starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions to grant bail under general law of Cr.P.C, the non obstante clause with which the section starts should be given its due meaning and clearly, it is intended to restrict the powers to grant bail. Consequently, the power to grant bail under any of the provisions of Cr.P.C. should necessarily be subject to the conditions mentioned in Section 37 of the Act. The non-obstante clause in this Section is followed by words which contain absolute prohibition in granting bail except in contingencies specified in the sub-section. It means that the benefits provided in the Code shall stand at bay while considering the plea for bail for a person involved in an offence mentioned in the Section. Sub-section (2) makes the position further clear that the limitations on granting of bail specified in Sub-section (1) are in addition to the limitations under the Code.
13. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are: - (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) of offences involving commercial quantity. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail.
14. The foremost argument of counsel for the petitioner is that vide ANNEXURE-D, truck was kept on his superdama by police on 02.10.2018 and applicant than informed the police to take the truck on 3.10.2018, stating that forest official laid naka on 2.10.2018 in front of polythene check post and during search of truck number JK13A/9512, 50 boxes containing poppy straw total weighing 524 kg along with 450 boxes of apples, were found. This argument does not hold good on two counts; firstly that Annexure -D, does not bear signatures of any police officer; secondly as per police recovery it has effected on 2.10.2018, then how letter dated 3.10.2018 written by applicant is reliable. Further letter dated 3.10.2018 sent by applicant to police, would reveal that he has mentioned total weight of poppy straw as 524 kgs. This shows that applicant has weighed the poppy straw, which he was not authorized to do under NDPS Act; once he found the poppy straw in boxes, he was duty bound to immediately inform the police with regard to recovery of contraband without weighing it on 2.10.2018 itself. So all these documents are not admissible. Further there are two FIRs (1) 59/2017 offence under Section 353/506/504 RPC of Police Station, Lakhanpur (II) 166/2017 offence under Section 188/120-B/420 RPC, 6 of Non Biodegradable(Management Handling and Disposal) Act, 2007 in Police Station ,Kathua have already been registered against the petitioner/applicant; one more FIR No. 54/2015 offence under Section 420/467)/468/471 RPC6/15/16 F. Act, 3 of Willow Cleft Act has also been registered in Police Station, Lakhanpur against one of the accused in the present FIR, namely, Balvinder Singh @ Binda.
15. In view of these facts, I am of the view that at this stage there are reasonable grounds for believing that the petitioner/applicant is guilty of the alleged offence and that he is likely to commit any offence while on bail taking into account his antecedent. I have gone through the law cited by learned counsel for the petitioner. From bare perusal of cited law, it is evident that the Court has held that anticipatory bail can lie for the offences under NDPS Act. In the present case, anticipatory bail has been sought on different grounds and the quantity of the contraband recovered is commercial quantity. So the law cited is not applicable in this case.
16. In view of above, I don't find any ground to grant anticipatory bail especially, when the contraband is of commercial quantity. This petition is dismissed.
Sanjay Kumar Gupta)
Judge

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