Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 Kµmar to be given ____________ to Kamal of Veerganj, Nepal, through Govind. Recovery memo was prepared at the house of Akhilesh Kumar Bajpai and was signed by the witnesses and t~~ <>.fficers -~s 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 d~tails 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 G 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, Veerganj, Nepal were obtained which were attested by the First Secretary, High Commission, Nepal and it showed that Govind had stayed· ti there on 21.2.2004. Call details of the phone of Akhilesh Kumar Bajpai install.ed 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 B 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 c 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 t_rade 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.
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 G 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 thi~ was not a case where the prayer for H suspension of sentence is to be accepted. Accordingl¥,)he 'to. f -.,.. RATAN KUMAR VISHWAS v. STATE OF U.P. & ANR. t}l3 [DR. ARIJIT PASAYAT, J.] 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.
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 c 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 D 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) sec 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. (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 judgmenC' 15, fr\ :the said case it was clearly observed that a sentence .B awarded under the Act .can be suspended by the Appellate · Goud 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 gui_lty 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 guiltyanq has been convicted. Section 37 of the Act reads as follows:-.· .H "Offences to be cognizable and non-bailable- (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 27 A 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. RATAN KUMAR VISHWAS v. STATE OF U.P. & ANR. [DR. ARIJIT PASAYAT, J.] (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 Ciiminal Procedure, 1973 (2of1974) 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 ofSeclion 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 tr.at 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.
19. The appeal fails and is dismissed. D.G. Appeal dismissed. c _o