Case BriefsHigh Courts

Bombay High Court: Sarang Kotwal, J., while addressing the bail application filed by Actor Rhea Chakraborty in the Sushant Singh Rajput death case, considered several questions of law in regard to NDPS Act.

The present bail application was in regard to the case registered with Narcotics Control Bureau (NCB) for the offences under Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985.

ANALYSIS

Counsel for the applicant Satish Maneshinde raised the issue, whether NCB was competent to conduct the investigation. ASG urged that the Supreme Court in  Rhea Chakraborty v. State of Bihar2020 SCC OnLine SC 654 directed that the CBI should investigate any other case registered on the death of actor Sushant Singh Rajput and the surrounding circumstances of his unnatural death.

Further, the ASG stated that the investigation conducted by NCB does not relate to the death of Sushant Singh Rajput and the consumption of drugs by the later actor was only part of the investigation. The said investigation ran deep into uncovering a chain of illicit traffic and drugs.

Bench opined that the contentions raised by the ASG have to be accepted and Mr Maneshinde’s submission that NCB is not empowered to investigate are to be declined.

Bail provisions under the NDPS Act are laid under Section 37 of the said Act.

In accordance with the said Section, Court is required to provide an opportunity to the Public Prosecutor to oppose the relief. Further, the Court should be satisfied about two conditions:

  • Reasonable ground for believing that the applicant is not guilty of the offence.
  • The applicant is not likely to commit any offence while on bail.

Bench has decided the present matter based on the guidelines mentioned in the Supreme Courts decision of Union of India v. Rattan Mallik, (2009) 2 SCC 624.

Questions to be decided in the present application:

  • Whether the offences alleged against the Applicant are bailable. This question needs to be decided because the Applicant is claiming her release on bail as a matter of right.
  • If the offences are non-bailable, then, as to whether rigours mentioned in Section 37(1)(b) of the NDPS Act are applicable.
  • If such rigours are not applicable and if the offences are non-bailable then whether the Court should exercise its discretion to grant or refuse bail.

Whether all the offences under the NDPS Act are non-bailable?

Applicant’s Counsel stated that the offences involving small quantities of contraband are bailable and he relied on this Court’s decision in Stefan Mueller v. State of Maharashtra, 2010 SCC OnLine Bom 1974.

Court cited the decision of Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein the ambit and scope of Section 50 of the NDPS Act was decided.

In the above decisions of State of Punjab v. Baldev Singh, (1999) 6 SCC 172 the amendment Act of 1988 was considered in detail and in clear terms, it was mentioned with no uncertainty that “Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail.”

The above, categorical statement shows that Section 37, makes all offences non-bailable and lays down stringent conditions for grant of bail.

Hence, the High Court in the present matter, stated in view of the above that there is no further scope to argue that only some offences under the NDPS Act are non-bailable and other offences where punishment is less than three years are bailable as per Part II of the Schedule of CrPC.

Applicant’s Counsel particularly, Advocate Subodh Desai and Taraq Sayed contended that the above observations were ‘fleeting reference’ and do not have a binding effect.

To the above contention, bench stated that

Even obiter dictum of the Supreme Court is binding on this Court.

Supreme Court’s decision in Municipal Committee v. Hazara Singh, (1975) 1 SCC 794 was referred.

Further, the Court added that the observations in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 are in the nature of ratio decendi and they cannot be termed as fleeting reference.

In the case of Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638,  it was observed that even obiter of Supreme Court is of considerable weight.

Interplay between Sections 27A & 37

Applicant’s counsel raised another issue:

Section 37 indicates that rigours in granting bail are applicable for the offences involving commercial quantity and this concept will apply even to Sections 19, 24 and 27A of NDPS Act if only the offences involve commercial quantity.

Supreme Court in the decision of Union of India v. Niyazuddin Sk., (2018) 13 SCC 738 has enumerated the offences where special rigours apply.

“6. 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 27-A and
  4. Of offences involving commercial quantity.”

Hence the Supreme Court observed that there are 4 categories and the offences involving commercial quantity is a separate category that has no direct connection with the earlier 3 categories i.e. Section 19, 24 and 27A.

Scope of Section 27A of the NDPS Act

Section 27A states the Punishment for financing illicit traffic and harbouring offenders.

As per NCB, the applicant financed procurement of drugs for Sushant Singh Rajput and harboured him knowing that he was consuming drugs and therefore she has committed offence punishable under Section 27A.

Legislature wanted to attack the basic cause of illicit traffic o drugs. Therefore a separate Section 27A was introduced to check these activities which were the root cause of illicit traffic. “Financing” and “harbouring” such activities were, therefore specifically mentioned under Section 27A.

The word “financing” would necessarily refer to some activities involving illegal trade or business.

Hence, the allegations against the applicant of spending money in procuring drugs for Sushant Singh Rajput will not mean that she had financed illicit traffic.

Section 27A indicates that financing is in respect to illicit traffic through which the financer expects monetary or other returns. This Section makes harbouring a punishable offence.

Further, Harbouring is in respect of a person who is engaged in such activities. It requires that he is either employed in or has involved himself with or has taken part in or has embarked on such activities.

Court observed that,

Section 27A will have to be interpreted harmoniously with other Sections as well as Objects and Reasons of the Act so that it attacks the illicit drug trafficking, but, does not extend to sentencing another accused more severely than the main offender.

Bench also disagreed with the submission that giving money to another for consuming drug would mean encouraging such habit and would mean “financing” or “harbouring” as envisaged under Section 27 A of the NDPS Act.

Allegations against the applicant

Applicant on some occasions had used her own money in procuring drugs and facilitated through her brother. For the said purpose, Sushant Singh Rajput’s employees were also used.

Bench stated that the applicant’s acts will not fall under Section 27A of NDPS Act.

The investigation did not reveal any recovery either from the Applicant or from the house of Sushant Singh Rajput. It is NCB’s own case that the drugs were already consumed and hence there was no recovery.

There is nothing at this stage to show that the Applicant had committed any offence involving commercial quantity of contraband.

Court found that that there are reasonable grounds for believing that the applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity.

Applicant was not part of the chain of drug dealers, she did not forward the drugs allegedly procured by her to somebody else and has no criminal antecedents.

While granting bail, Court imposed the following conditions:

  • Applicant is directed to furnish PR bond in the sum of Rs 1,00,000 with one or two sureties in the like amount.
  • Applicant shall deposit her passport with the investigating agency.
  • Cannot leave the country without prior permission of Special Judge for NDPS.
  • Applicant shall attend the investigating agency on the first Monday of every month for a period of 6 months.
  • After her release on bail, the Applicant shall mark her presence at the nearest Police Station from her residence anytime between 11:00 a.m. to 5:00 p.m. to show her availability, for a period of ten days from her release.

[Rhea Chakraborty v. Union of India, 2020 SCC OnLine Bom 990, decided on 07-10-2020]


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Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., stayed the investigation against the television anchor and journalist Vinod Dua, alleged for spreading rumours and misinformation about the sensitive issue of Delhi Riots and causing hatred and ill-will between the different communities through his web cast on You Tube.

Who filed the present petition?

The petition was filed by Vinod Dua — Journalist and Television Anchor praying for quashing of an FIR registered under Sections 290/505/505(2) of the Penal Code, 1860. Petitioner sought investigation into the said registration of the FIR, as also for violation of his fundamental rights.

Genesis of the matter

Petitioner has a webcast on HW News Network on the YouTube Platform named “The Vinod Dua Show”.

Petitioner’s Stand

Senior Counsel, Vikas Singh submitted that the webcast was made on 11.03.2020 and ran for approximately 12 minutes, comprising two parts, each addressing a different current affairs issue. About 08 minutes of the webcast was in relation to the politics of government formation in the State of Madhya Pradesh in the context of some recent happenings.

As per the allegations contained in FIR, the above mentioned part of the webcast is not subject matter of the FIR.

Second part of about 4 minutes was in relation to the riots that happened in the North-East part of Delhi in February, 2020 and the complainant’s grievance appears to be with what was said in relation to the riots; and that was the subject matter of the complaint made and the FIR registered against the petitioner.

Petitioner’s Counsel relied on the following Supreme Court Judgments:

FIR

FIR records that the petitioner is spreading rumours and misinformation about the sensitive issue of Delhi Riots, which are resulting into causing hatred and ill-will between the different communities.

Respondent’s Stand

Counsel, Piyush Singhal on behalf of respondent 1 submitted that the notice has been issued to YouTube and petitioner has so far not even called for investigation.

Respondent 2’s counsel’s Anil Soni, Ajay Digpaul and Satya Ranjan Swain argued against granting interim relief to the petitioner on the following basis:

  • ingredients of Section 505(2) IPC are made-out on the basis of the allegations in the complaint and in the FIR
  • narration made in the offending webcast to the effect that Delhi Police should issue a fact-sheet indicating as to how many people from the minority community were picked-up and arrested; from where; in what condition and under what threat, amounts to propagating alarming news with intent to create or promote enmity, hatred or ill-will between classes, which is an offence punishable under Section 505(2), and which is both cognizable and non-bailable;
  • What is stated in the offending narration is merely the petitioner’s ‘opinion’ and not based on any ‘fact’, and that only rumour has been fostered to create enmity;
  • there is no legal basis or precedent for staying investigation or proceedings in an FIR

On Prima Facie view, following aspects emerge:

  • Substantial unexplained delay in filing of the complaint and registration of the FIR: Delay of almost 3 months
  • Petitioner learned about the registration of FIR through social media
  • what the complainant alleges was said in the webcast, is not what appears in the transcript of the webcast ; and to that extent no cognizable offence is disclosed on the basis of the material cited by the complainant warranting registration of an FIR
  • there is no allegation that any adverse consequences, in terms of enmity, hatred or ill-will, much less any violence or breach of peace, occurred as a consequence of the webcast
  • ingredients and gravamen of the offence under section 505(2) do not seem to be made-out as required per Manzar Sayeed Khan Judgment.

Thus, it prima facie appears that the registration of the FIR requires to be examined on the touchstone of the law.

Though petitioner has already been granted an interim protection by Additional Sessions Judge, this Court is of the view that further investigation or proceedings pursuant to the FIR would cause unwarranted and unjustified harassment to the petitioner.

Investigation in the matter arising from the subject FIR is stayed, till the next date of hearing.

Matter to be listed on 23-07-2020. [Vinod Dua v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 644 , decided on 10-06-2020]

Cabinet DecisionsCOVID 19Legislation Updates

Cabinet approves promulgation of Ordinance to amend the making such acts of violence as cognizable and non-bailable offences and to provide compensation for injury to healthcare service personnel or for causing damage or loss to the property.

Amendment to be made to Epidemic Diseases Act, 1897 and Ordinance will be implemented. Such crime will now be cognizable & non-bailable. Investigation will be done within 30 days. Accused can be sentenced from 3 months-5 yrs & penalised from Rs 50,000 upto Rs 2 Lakh: Union Minister P Javadekar

In case of grievous injuries, the accused can be sentenced from 6 months to 7 years. They can be penalised from Rs 1 Lakhs to Rs 5 Lakhs.

As reported by ANI: “Central Government has brought an ordinance to end violence against health workers, carries imprisonment from 6 months to 7 years if anyone found guilty.”


Media Reports

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J., addressed the petition filed under Sections 482 and 483 of CrPC for quashing of FIR registered under Sections 406, 420 & 120-B Penal Code, 1860 and the orders whereby the warrants of arrest were issued against the petitioner.

Contentions

Petitioner’s counsel submitted that the petitioner has instructed him to restrict the petition only qua challenge to the warrants issued by the Magistrate against the petitioner in the said FIR. Adding to his contentions, counsel for the petitioner stated that the Magistrate had issued warrants in a mechanical manner.

Magistrate had no reason to exercise his discretion to decide whether the petitioner was evading his arrest or not. The exercise of discretion by the Magistrate stands vitiated, being in the negation of law as is laid down by the Supreme Court in State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438.

He further stated that since, the police had not disclosed any reason even in their application, therefore, the arrest of the petitioner would be in violation of the provisions of Section 41(1)(b)(ii) of CrPC. If the Magistrate could not have authorized police custody, due to absence of valid reasons then the Magistrate could not have been issued warrant authorizing arrest of the petitioner.

Respondent’s counsel stated that the petitioner is involved in a heinous crime of huge fraud. Since the police was unable to arrest the petitioner despite repeated attempts and the raids at the known addresses of the petitioner, therefore, the investigating officer had rightly applied for the arrest warrant against the petitioner.

Further, he stated that, Magistrate is not required to record any reasons for issuing warrants of arrest against an accused. Hence, the Magistrate has not committed any illegality.

Court’s Analysis & Decision

On a bare perusal of the provisions of CrPC, the Court stated that the police officer has almost omnipresent power to arrest. He can arrest a person even on having a suspicion that such person has committed a cognizable offence.

Adding to the above point, the Court stated that, in certain circumstances, the police officer is required to record reasons for arresting a person or is required to have a satisfaction qua the necessity of arrest, however, all these requirements are intrinsic to the arresting officer.

Thus for the purpose of arresting police officer has all-pervasive powers without any assistance from the Court or Magistrate.

Limiting factors for the above said the power of arrest without warrant is the existence of some reasons for the exercise of such power.

Chapter XII of CrPC which deals with Investigation of Crime also does not contemplate any assistance of a Magistrate or a court; to the police officer, qua investigation of a crime.

Section 167 CrPC requires that after arrest if investigation is not conducted within 24 hours then the person shall be produced before the Magistrate. Even the Magistrate is prohibited from permitting police custody for more than 15 days in all.

Section 73 of CrPC confers a power upon the Chief Judicial Magistrate and a Magistrate of First Class to issue warrants against any person who is ‘evading arrest’.

Under the above-said Section, the Magistrate can issue warrants of arrest against a person:-

(a) Who is an escaped convict
(b) Proclaimed offender
(c) Person accused of ‘non-bailable’ offence and is ‘evading arrest’.

Decision

High Court noting the above observations along with the contentions of both the counsels for the parties found the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, to be befitting in the facts of the present case, in the cited case following was held by the Supreme Court,

“…before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section.”

“…even at the time of authorizing detention of a person, who has already been arrested by the police, Magistrate would not go by ipse dixit of the language, which might be reproduced in the record of the police. He has to apply his independent mind as to whether the reasons are sufficient to sustain the satisfaction qua requirements of getting such person arrested. Only if the reasons are found sufficient, the person arrested by the police can be authorized to be put in further custody of the arresting officer.”

High Court also observed and stated that, before the Magistrate had taken cognizance of any offence, power of issuance of arrest warrants under any provision of CrPC, on an application of a police officer, cannot be invoked by the Magistrate as a routine manner.

It is clear from the above-said analysis that,

 “only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest.”

Thus, the application moved by the police officer is silent qua any reason, which requires assistance from the court for arresting the petitioner.

No reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 CrPC, to justify the arrest of the petitioner, except to say that the petitioner is evading arrest. It is upon this application that the impugned warrants of arrest have been issued against the petitioner.

Hence, nothing has been noted either in the order passed by the Magistrate, from which it can be discernible that the Magistrate has some reasons or material to justify the discretion exercised by him.

Court found the impugned warrant issued by the magistrate not sustainable. Hence the present petition is found to be partly allowed by quashing the warrants of arrest and consequent order impugned in the petition. [Gurjeet Singh Johar v. State of Punjab, 2019 SCC OnLine P&H 2606, decided on 08-11-2019]

Case BriefsHigh Courts

Jharkhand High Court: Anubha Rawat Choudhary, J. allowed the interim application of the appellant by granting bail on the basis that the co-accused in similar cases have already been granted bail. 

Firstly, the appellant, in this case, has been charged with Dacoity, punishable under Section 395 of the Penal Code. The appellant and the co-accused were convicted and sentenced by the Additional Sessions Judge, II, Palamau at Daltonnganj, in Sessions Trial Case No. 152 of 2018, arising out of Sadar (Satbarwa) Police Station Case No. 132 of 2017 corresponding to G.R. No. 2129 of 2017. 

The Sessions Court, on 10-04-2019 and 15-04-2019, ordered the accused and the co-accused to go under rigorous imprisonment for a period of seven years along with a fine of Rs 5000. In default of payment of fine, the appellant and the co-accused will be liable for another 6 months of simple imprisonment. 

Secondly, the appellant and the other co-accused have also been sentenced for rigorous imprisonment of 3 years along with a fine of Rs 3000, under Section 25(1-B) of the Arms Act, 1959, by the Sessions Court. In default of payment of fine, the appellant and the co-accused will be liable for simple imprisonment of 4 months. The court also clarified that all the sentences are to run concurrently.

The appellant prayed in the Interim Application No. 5115 of 2019 for suspension of sentence and a release on bail during the pendency of the case. The counsel for the applicant, Manoj Kumar, contends that the appellant has been awarded maximum punishment for 7 years and the appellant has already spent 2 years in jail in connection with the present case. The counsel for the appellant informed the Court that already an appeal regarding a similar case, of a co-accused has been put up in the Court and the Court has already granted bail to the co-accused, Nirantan Kumar Singh, order dated 25-09-2019. [Cr. Appeal (S.J.) No. 554 of 2019].

The counsel for the opposite party, Azeemuddin (APP), stated that the prayer for the bail should not be accepted because unlike the co-accused, the allegations against the appellant are direct. The Counsel requested the Court, in case the sentence is suspended, the appellant should be directed to deposit the fine along with the request that one of the bailors should be his father, pairvikar of the case.

The Court held that the appellant shall be granted the bail as he has already spent 2 years in jail, in connection to this case. Secondly, the appeals for bail of the co-accused have already been granted, hence, the appellant can also be granted bail on similar grounds. Hence, during the pendency of the appeal, the appellant was directed to be released on bail of Rs 25000 with two sureties of Rs 25000 each, one surety being the appellant’s father. The appellant was directed to submit a Xerox copy of his Aadhar Card and cell phone number, at the time of furnishing bail bonds. [Gulab Singh v. State of Jharkhand, Cr. Appeal(S.J.) No. 802 of 2019, decided on 05-12-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra and Goutam Chourdiya, JJ. dismissed an application filed by the State seeking leave to appeal against the order of acquittal rendered by the Judicial Magistrate, 1st Class, as not maintainable.

The application by the State sought leave to appeal against the order of acquittal rendered by the Judicial Magistrate, 1st Class, whereby the accused was acquitted of the charges under Section 409 IPC (criminal breach of trust by public servant or by banker, merchant or agent).

The High Court was of the opinion that instead of preferring the instant application in the High Court, the State should have preferred an appeal before the Sessions Court under Section 378(1)(a) CrPC. Reliance was placed on Subhash Chand v. State (NCT of Delhi), (2013) 2 SCC 17, wherein the Supreme Court laid down the law thus:

If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and nonbailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appealed against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words “in any case” but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.”

In such view of the matter, the instant application filed by the State was dismissed as not maintainable, reserving the liberty in favour of the State to prefer acquittal appeal before the Sessions Court within a period of 30 days from the date of the instant order.[State of Chhattisgarh v. Mohanlal Bagde, 2019 SCC OnLine Chh 102, decided on 25-09-2019]