2021 Supreme(Bom) 371

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SARANG V. KOTWAL, J.
Rhea Chakraborty - Applicant
Versus
The Union of India, Through Intelligence Officer, Narcotics Control Bureau, Mumbai & Ors. - Respondents
Criminal Bail Application (Stamp) No. 2386 of 2020
Decided On : 07-10-2020

IMPORTANT POINTS
(1) While considering application for bail with reference to Section 37 of NDPS Act, court is not called upon to record a finding of "not guilty".
(2) NDPS Act is not only a strict, stringent and harsh Act for drug traffickers, it also shows compassion and leniency in laying down reformative approach.
(3) Everybody is equal before law – No celebrity or role model enjoys any special privilege before Court of law – Similarly, such person also does not incur any special liability when he faces law in Courts.
(4) Simply providing money for a particular transaction or other transactions will not be financing of that activity – Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it.

Headnote:

(A) Narcotics Drugs and Psychotropic Substances Act, 1985 – Section 37 – Criminal Procedure Code, 1973 – Section 439 – Bail – Expression "reasonable grounds" has not been defined in the Act but means something more than prima facie grounds – It connotes substantial probable causes for believing that accused is not guilty of offence he is charged with – Reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that accused is not guilty of alleged offence – Recording of satisfaction on both aspects is sine qua non for granting of bail under NDPS Act – While considering application for bail with reference to Section 37 of NDPS Act, court is not called upon to record a finding of "not guilty" – At this stage, it is neither necessary nor desirable to weigh evidence meticulously to arrive at a positive finding as to whether or not accused has committed offence under NDPS Act – What is to be seen is whether there is reasonable ground for believing that accused is not guilty of offence(s) he is charged with and further that he is not likely to commit an offence under said Act while on bail – Satisfaction of court about existence of said twin conditions is for a limited purpose and is confined to question of releasing accused on bail. (Para 22)

(B) Criminal Procedure Code, 1973 – Section 439 – Narcotics Drugs and Psychotropic Substances Act, 1985 – Sections 37, 64A and 71 read with Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 – Bail application – Charges of illicit drug trafficking – This Act is not only a strict, stringent and harsh Act for drug traffickers, it also shows compassion and leniency in laying down reformative approach under Sections 64A and 71 – This reformative approach should never be lost sight of – Allegations and material against present Applicant are that on some occasions she had used her own money in procuring drugs – She facilitated procuring of drugs through her brother – Main Section which could be attracted in her case is violation of Section 8(c) of NDPS Act, which is made punishable under Section 20 or Section 22 – In that case, it is necessary for investigating agency to show that her activities or contravention involved commercial quantity of a narcotic drug or psychotropic substance – Investigation did not reveal any recovery either from Applicant or from house of Sushant Singh Rajput – It is their own case that drugs were already consumed and hence there was no recovery – In that case, there is nothing at this stage to show that Applicant had committed any offence involving commercial quantity of contraband – Material at the highest shows that she has committed an offence involving contraband, but, crucial element of incurring rigours of Section 37 in respect of commercial quantity is missing – There are reasonable grounds for believing that Applicant is not guilty of any offence punishable under Sections 19, 24 or 27A or any other offence involving commercial quantity – There are no other criminal antecedents against her – She is not part of chain of drug dealers – Since she has no criminal antecedents, there are reasonable grounds for believing that she is not likely to commit any offence while on bail – Everybody is equal before law – No celebrity or role model enjoys any special privilege before Court of law – Similarly, such person also does not incur any special liability when he faces law in Courts – Each case will have to be decided on its own merits irrespective of status of accused – Bail granted. (Paras 46, 69, 70 and 73)

(C) Words and Phrases – Financing – "Financing" as generally understood, is offering monetary support or provide funds – Simply providing money for a particular transaction or other transactions will not be financing of that activity – Financing will have to be interpreted to mean to provide funds for either making that particular activity operational or for sustaining it – It is financial support which directly or indirectly is cause of existence of such illicit traffic – Word "financing" would necessarily refer to some activities involving illegal trade or business. (Paras 59 and 60)

Facts of the case:

This is an application for bail preferred by the Applicant in connection with C.R. No.16/2020 registered with the Narcotics Control Bureau, Mumbai (hereinafter referred to as "NCB") for the offences punishable under Sections 8(c) read with 20(b)(ii), 22, 27A, 28, 29 and 30 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Applicant was arrested on 8.9.2020. According to Special Judge, there was possibility of tampering of evidence. On these reasons, her bail application was rejected - NCB claims that they have ample material including electronic evidence that the Applicant was involved in drug trafficking. She had facilitated in drug deliveries and payment through credit card / cash / payment gateways for the contraband and, therefore, the Applicant was not entitled for bail. It is mentioned that if she was released on bail at this crucial stage of investigation, it would hamper further investigation. It is specifically mentioned that the drugs which were financed by her were not meant for her personal consumption. The drugs were supplied for consumption by some other person. Thus, according to NCB, Section 27A of NDPS Act was squarely applicable.

Findings of Court:

Special Judge has observed that the Applicant may alert others and evidence can be destroyed by them. There is no basis for such observation. It is also important to note that when Applicant was produced before the Court for her first remand, the investigating agency did not seek her custody. That means, they are satisfied with her interrogation and she had cooperated in that investigation.

Result : Criminal Bail Application allowed.