Uttarakhand High Court
Chatra Pal Singh vs State Of Uttarakhand on 16 April, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
1st Bail Application No. 1008 of 2023
Chatra Pal Singh. ................Applicant.
Versus
State of Uttarakhand. .........Respondent.
Present:
Mr. Arvind Vashisht, learned Senior Advocate assisted by Mr. Hemant Mehra, learned counsel for the applicant.
Mr. V.K. Gemini, learned Deputy Advocate General with Mr. Saurabh Pandey, learned Brief Holder for the State.
Upon hearing the learned counsel, the court made following
Judgment: (Per Mr. Rakesh Thapliyal, J.)
1. Present applicant is seeking regular bail in relation to FIR
No. 08 of 2023 wherein he has been implicated for the offences
punishable under Section 8, 20, 60 of the of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as
the "NDPS Act") registered at Police Station - Salt, District -
Almora.
2. As per the prosecution case, an FIR was lodged by the
complainant on 03.03.2023 with allegations that when the Police
team was on routine patrolling at around 14.10 p.m., they saw a
vehicle pickup bearing registration no. U.P. 22 AT 8604 coming
from Jhimar side and asked it to stop. On seeing the police team,
the applicant and other accused halted the vehicle 10 steps back
from the place where police was present. Then on enquiry,
accused did not give any satisfactory reply and while on
checking the vehicle, sacks and bags were recovered and when
they were opened green colour flowery substance comprising
seeds purported to be ganja was recovered from four sacks (from
two khakee plastic bags 12.66 Kg and 14.195 Kg; from blue and
white coloured bag 21.625 Kg of contraband was recovered and
from black and white coloured bag 20.545 kg of contraband was
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recovered). A total 69.025 kgs of Ganja was recovered from the
possession of the applicant.
3. Learned counsel for the applicant submits that applicant is
in jail since 03.03.2023 and after investigation, charge-sheet has
already been filed. He further submits that there are total 7
witnesses shown in the charge-sheet but uptil date no witness
has been examined and there is no compliance of Section 50 of
the NDPS Act and further more there is no public witness and
present applicant has been falsely implicated in the present case.
He further submits that only one criminal case for the offences
punishable under Section 323, 498-A, 504 IPC is registered
against the present applicant and applicant is seeking bail on the
ground of incarceration, as till date, no witness has been
examined.
4. Mr. V.K. Gemini, learned Deputy Advocate General has
seriously opposed the bail application by saying that by virtue of
Section 37 of the Act, since the alleged recovered contraband is
commercial quantity, therefore, the applicant is not entitled for
bail.
5. At this juncture, it is necessary to reproduce Section 37 of
the NDPS Act. The same reads 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 or section 24 or section 27A
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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."
6. Section 37 of the NDPS Act is a very rigorous provision. As
per Section 37 of the NDPS Act, the conditions which the Court
has to examine 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.
7. In response to this, learned counsel for the applicant
submits that no doubt, as per Section 37 of the Act, bail in such
cases may not be granted, unless the Court is satisfied 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. But, denial of bail does not give unfettered
liberty to the prosecution to keep a person in custody without
conducting a trial.
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8. Learned counsel for the applicant further submits that the
applicant, who has already spent more than one year in custody,
is entitled for bail, particularly, when no witness has been
examined till date. In respect of the period of incarceration,
which the applicant has suffered learned counsel for the
applicant has placed reliance on the judgments rendered by the
Hon'ble Supreme Court in the case of Mohd Muslim @Hussain
v State(NCT of Delhi) 2023 SCC OnLine SC 352 and in the case
of Rabi Prakash vs. The State of Odisha 2023 SCC OnLine SC
1109. In paragraph 4 in the case of Rabi Prakash (supra), the
Hon'ble Supreme Court observed as follows:-
"As regard to the twin conditions contained in Section
37 of the NDPS Act, learned counsel for the respondent
- State has been duly heard. Thus, the 1st condition
stands complied with. So far as, the 2nd condition re:
formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the
same may not be formed at this stage when he has
already spent more than three and a half years in
custody. The prolonged incarceration, generally
militates against the most precious fundamental right
guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override
the statutory embargo created under Section 37(1)(b)(ii)
of the NDPS Act."
9. Learned counsel for the applicant has also placed reliance
upon a judgment rendered by the Hon'ble Supreme Court in the
case of Dheeraj Kumar Shukla versus State of Uttar Pradesh,
(2023) SCC OnLine SC 918, wherein, the Hon'ble Supreme
Court, while granting bail to the accused from whom 92 kgs
Ganja was recovered, observed as under:-
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"It is true that the quantity recovered from the
petitioner is commercial in nature and the provisions
of Section 37 of the Act may ordinarily be attracted.
However, in the absence of criminal antecedents and
the fact that the petitioner is in custody for the last
two and a half years, we are satisfied that the
conditions of Section 37 of the Act can be dispensed
with at this stage, more so when the trial is yet to
commence though the charges have been framed."
10. By placing reliance on the aforesaid judgments, learned
counsel for the applicant submits that in the present case, out of
total 07 witnesses, no witness has been examined as yet; the
applicant is in jail since 03.03.2023, therefore, the condition, as
stipulated under Section 37 of the Act, can be dispensed with, at
this stage.
11. Having considered the submissions of the learned counsel
for the applicant as well as learned State Counsel and in view of
the observations made in the judgments, as relied upon by the
learned counsel for the applicant, that the prolonged
incarceration generally militates against the most precious
fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty must
override the statutory embargo created under Section 37(1)(b)(ii)
of the NDPS Act, there is no reason to keep the applicant behind
the bars for an indefinite period. Further after taking into
consideration the fact that the applicant is in jail since for last
more than one year and till date no witness has been examined,
the conditions, as stipulated under Section 37 of the Act, can be
dispensed with at this stage. Therefore, without expressing any
opinion on the merits of the case, this Court is of the view that
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the applicant deserves for bail. Accordingly, the Bail Application
is allowed.
12. Applicant Chatra Pal Singh, is ordered to be released on
bail subject to his furnishing a personal bond and two reliable
sureties, each in the like amount, to the satisfaction of the Court
concerned with the following conditions:-
i) Applicant shall attend the Trial Court regularly and
he shall not seek any unnecessary adjournment.
ii) Applicant shall not directly or indirectly make any
inducement, threat or promise to any person
acquainted with the facts of this case.
iii) Applicant shall not leave the country without
previous permission of the Trial Court.
iv) In case the applicant is found to be involved in future
in any other similar case, or misuses or violates any of
the conditions imposed on him while granting bail,
the prosecution is free to move an application for
cancellation of bail.
__________________
Rakesh Thapliyal, J.
16.04.2024 SKS