Himachal Pradesh High Court
Yogesh Kumar vs State Of Himachal Pradesh on 31 May, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 1106 of 2023 .
Reserved on : 26.05.2023
Decided on : 31.05.2023
Yogesh Kumar ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram r
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 For the applicant : Mr. Rakesh Kumar Chaudhary, Advocate.
For the respondent : Ms. Sharmila Patial, Additional Advocate General, with Mr. Arsh Rattan and Mr. Rohit Sharma, Deputy Advocates General.
Virender Singh, Judge.
Applicant-Yogesh Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing him on bail, during the pendency of trial, in case FIR No. 1 of 2021, dated 18th March, 2021, registered under Section 20 of the 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 03/06/2023 20:30:34 :::CIS 2Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act'), with Police Station State .
Vigilance & Anti Corruption Bureau, CR Mandi, District Mandi, H.P.
2. The applicant is seeking his release on bail, during the pendency of the trial, in the above case, on the ground, that the alleged FIR has been registered on false and bogus facts. r
3. The applicant has termed the FIR as false and fabricated, to say that the facts, as stated in the FIR, are concocted, having no basis to connect the applicant with the alleged offence.
4. It is the case of the applicant that he is an innocent person and has not committed the alleged offence.
According to him, he has been roped in, in the present case.
5. On the basis of the above facts, a prayer has been made to release the applicant on bail, during the pendency of the trial.
6. As per the averments made in the application, the applicant has also tried his luck by moving the application for ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 3 bail before this Court, being CrMP(M) No. 2323 of 2022, which was dismissed, vide order, dated 28th October, 2022.
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7. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
8. When put to notice, the police has filed the status report, disclosing therein, that on 17th March, 2021, the police party was on patrolling duty at place Aut, District Mandi.
Around 9.00 p.m., a secret information was received regarding the indulgence of the applicant in the sale of charas and that, in case, the search of his shop is conducted, then, a large quantity of charas could be recovered. Thereafter, on finding the said information to be authenticated, the Investigating Officer, after complying with the provisions of section 41 (2) of the NDPS Act and after associating Ward Member Shri Ram Chand and Shri Om Prakash of Gram Panchayat Takoli, as independent witnesses, the shop/dhaba of the applicant was searched at about 10.15 p.m. During search, a light yellow coloured carry bag was found, which was having two plastic envelopes, containing long, stick shaped substance and round ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 4 stick shaped substance. On the basis of smell and experience, the same were found to be charas, which, on weighment, was .
found to be 1024 grams.
9. Other codal formalities were completed and the contraband, so recovered, was taken into possession. The accused (applicant) was arrested and produced before the Court.
10. The contraband, so recovered, was sent to forensic laboratory, for chemical analysis, on which, the positive report has been received from SFSL, Junga.
11. After completion of investigation, the police filed the report, under Section 173 (2) of the CrPC, in the Court.
The charge has already been framed against the accused (applicant) and the case is stated to be fixed for evidence of the prosecution witnesses.
12. Lastly, it has been apprehended that in case, the applicant is released on bail, he may again indulge in the business of selling charas. Hence, a prayer has been made to dismiss the bail application.
13. The accused (applicant), in the present case, has been arrested for allegedly possessing the contraband, which ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 5 falls within the definition of 'commercial quantity'. Once, it is the case of the police that a contraband, weighing 1024 grams, .
has been recovered from the possession of the accused (applicant), then, the material question, which arises for consideration, before this Court, is about the fact whether the case of the applicant falls within the scope of those cases, where, at this stage, it can be said that the accused (applicant) has not committed the offence and there is no livelihood that while on bail, he will not commit the offence.
14. In a recent decision, in case titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444, the Hon'ble Supreme Court has elaborately discussed about the compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under:
"10. The provisions of Section 37 of the NDPS Act read as follows:
"[37. 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 ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 6 section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
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(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.
11. It is evident from a plain reading of the non- obstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v.
::: Downloaded on - 03/06/2023 20:30:34 :::CIS 7Ahmadalieva Nodira", (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus:
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"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence." [emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" (2020) 12 SCC 122 and this Court has observed as below:
"20. The expression "reasonable grounds"
means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 8 offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the .
CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."
15. In view of the above, there is nothing on the record ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 9 to give an occasion for this Court to hold that the twin conditions, as enumerated in Section 37 of the NDPS Act, are .
in favour of the applicant. In other words, at this stage, it cannot be said that the applicant has not committed the offence nor it can be said that if released on bail, he may not indulge in such type of activities.
16. Moreover, every bail application is to be decided according to the peculiar facts and circumstances of the case.
In the present case, the accused (applicant) was arrested on 18th March, 2021. The charge-sheet, as per the status report, has been filed against the accused (applicant) on 3 rd August, 2021 and charge has already been framed. As per the status report, the statements of only two prosecution witnesses are left to be recorded.
17. Considering the said fact, this Court is of the view that the applicant is not entitled to get any relief on the ground of the slow pace of the trial.
18. In other words, it can be said that the trial is now almost at the stage of its completion. As such, it cannot be said that the trial against the applicant has been delayed, ::: Downloaded on - 03/06/2023 20:30:34 :::CIS 10 which resulted into violation of the protection given by Article 21 of the Constitution of India.
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19. Considering all these facts, no case to pass any order in favour of the applicant, under Section 439 CrPC, is made out, at this stage. Consequently, the bail application of the applicant is dismissed.
20. Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
( Virender Singh ) Judge May 31, 2023 ( rajni ) ::: Downloaded on - 03/06/2023 20:30:34 :::CIS