Himachal Pradesh High Court
Salman vs State Of H.P on 28 June, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.1363/2023 Decided on: 28.06.2023 .
Salman ......Petitioner
Versus
State of H.P. ......Respondent
..........................................................................................
Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner : Ms. Rajvinder Sandhu, Advocate.
For the respondent :
r to Mr. Y.P.S. Dhaulta,
Advocate General.
HC Naveen Kumar No.110 P.S.
Additional
Paonta Sahib, District Sirmour,
present in person.
Jyotsna Rewal Dua, J
Petitioner is accused of possessing 3541 number of intoxicating capsules containing psychotropic substance Tramadol in FIR No.50/2020 dated 16.04.2020, registered under Sections 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) at Police Station Paonta Sahib, District Sirmour, H.P. He was arrested on 16.04.2020 and seeks his enlargement on regular bail in the instant petition
2. Facts The prosecution case in nutshell is that:-
1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 28/06/2023 20:33:27 :::CIS 2
2(i) On 16.04.2020, a police party was on patrol duty in its jurisdictional area. At about 6.15 P.M., it received a reliable information .
that one Sanjay Kumar was involved in illegal sale of intoxicating capsules and on his demand, one Salman Khan (bail petitioner) was bringing huge quantity of these capsules from Mirzapur, Uttrakhand in the cabin of a Truck specified in the information. The information was further to the effect that the specified truck was about to enter Paonta Sahib border and its search at that moment could result in recovery of large quantity of intoxicating capsules.
2(ii) Respondent complied with the provisions of the Act.
Raiding party was constituted. Raiding party reached the spot. On noticing the truck described in the information, it was signalled to stop.
The truck driver on inquiry disclosed his name as Salman Khan (bail petitioner). Search of the truck was carried out in accordance with law.
During search, two transparent polythene bags were found underneath a blanket kept on the cleaner seat. One polythene contained five boxes of Pyeevon Spas Plus. Each box had 30 strips of 8 capsules each. Total 1200 intoxicating capsules were recovered from five boxes of Pyeevon Spas Plus. The other polythene contained 2341 loose capsules of PYN SPAS PLUS. In all 1200+2341=3541 intoxicating capsules were recovered from the truck's cabin. The procedure contemplated in law was followed during search and seizure. The recovery led to the registration of FIR in question and ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 3 arrest of the petitioner. As a consequence of investigation carried out from the petitioner one Sanjay Kumar co-accused was also arrested .
on 16.04.2020.
3. Contentions 3(i) Learned counsel for the petitioner submitted that the petitioner has not committed any offence as alleged against him by the respondent in the FIR. In any case, the petitioner is languishing in the jail ever since 16.04.2020. The integral and essential fundamental rights of life and liberty enshrined in Article 21 of the Constitution of India is being denied to the petitioner. Hence, prayer was made for enlarging the petitioner on regular bail. Learned counsel further submitted that the petitioner will abide by all the conditions, which may be imposed upon him in case of grant of bail and that he will not influence the witnesses or tamper with the prosecution evidence in any manner.
3(ii) Learned Additional Advocate General submitted that there are total 24 prosecution witnesses in all in the case, out of which as on date 3 witnesses have been examined. Two such witnesses were examined on 20.09.2022 and third one was examined on 13.12.2022. The petitioner is accused of possessing commercial quantity of contraband. Provisions of Section 37 of the Act are attracted. The petitioner has failed to satisfy the rigors of Section 37 of the Act, hence, he is not entitled for bail.
::: Downloaded on - 28/06/2023 20:33:27 :::CIS 44. Observations:-
4(i). Since quantity of the contraband recovered in the FIR is .
commercial, therefore, provisions of Section 37 of the NDPS Act are attracted, which read as under:-
"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 of 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."
In order to avail bail, the petitioner has to satisfy following twin conditions imposed in Section 37 of the NDPS Act:-
"(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail."
Hon'ble Apex Court in (2020) 12 SCC 122, titled State of Kerala and others Versus Rajesh and others, after considering various pronouncements held that the expression 'reasonable ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 5 grounds' used in Section 37 of the NDPS Act means something more than prima-facie grounds. It contemplates substantial probable .
causes for believing that the accused is not guilty of alleged offence.
It would be appropriate to extract relevant paras from the judgment:-
"19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non- obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
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 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 Cr.PC, 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."
4(ii) Present is a case of alleged recovery of commercial quantity of contraband. According to the respondent, commercial quantity of intoxicating capsules were recovered from the truck driven ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 6 by the petitioner. As per status report and the record produced by the respondent, the petitioner during the course of his investigation is .
stated to have disclosed that he was bringing the intoxicating capsules on the direction and at instance of co-accused Sanjay Kumar.
4(iii) SLP (Crl.) No. 915 of 2023 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial. Hon'ble Court, inter-alia, reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like "section 43- D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 7 imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered, .
where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd. Muslim's case (supra), it was held as under
with reference to expression "not guilty of such offence":-
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counteraffidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 8 and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when .
accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
According to the respondent, prosecution has to examine twenty four witnesses in all, out of which only three witnesses have been examined as on date that too spreading over a ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 9 period of three years. Statements of twenty one witnesses are yet to be recorded. Looking at the pace of the trial, it is apparent that trial of .
the case will take long time to conclude. Taking into consideration the facts and circumstances of the case in the backdrop of law laid down in Mohammad Muslim's case, supra and the period spent by the petitioner in custody coupled with the fact that trial of the case will take long time to conclude, the petitioner, at this stage, has made out a case for his enlargement on regular bail.
In view of all the aforesaid reasons, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-
(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law.
(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). Petitioner will not leave India without prior permission of the Court.::: Downloaded on - 28/06/2023 20:33:27 :::CIS 10
(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to .
dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Any observation hereinabove shall not be taken ::: Downloaded on - 28/06/2023 20:33:27 :::CIS 11 as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made .
hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.
Jyotsna Rewal Dua Judge 28th June 2023 (Rohit) ::: Downloaded on - 28/06/2023 20:33:27 :::CIS