Himachal Pradesh High Court
Vijay Kumar vs State Of H.P on 27 January, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.M.P.(M) No. 82 of 2023 Decided on: 27th January, 2023 .
Vijay Kumar ....Applicant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Vacation Judge. Whether approved for reporting?1 For the petitioner:
r Mr. Vivek Sharma, Advocate, for
the petitioner.
For the respondent: Mr. Anup Kumar Rattan, Advocate
General, with Mr. Varun Chandel,
and Mr. Manoj Chauhan,
Additional Advocates General.
Virender Singh, Vacation Judge (Oral) Applicant-Vijay Kumar, has filed the present bail application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), for releasing him on bail during the trial, in case F.I.R. No. 159/2020, dated 31.05.2020, registered under Sections 15, 25, 27A, 28, 29, 30, 8C-
61-85 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act'), with Police Station Haroli, District Una, H.P. 1 Whether the reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 22. According to the applicant, he is an innocent person and he has falsely been implicated in this case by the .
police as no recovery, whatsoever, of any contraband was effected from him. No evidence is stated to be against the applicant, in this case, except confession statement of Mani Ram, allegedly, made in presence of Avtar Singh and Dharam Singh, pursuant to which, the alleged recovery of 67.100 Kg. of Poppy Husk was effected.
3. According to the case, as set up by the applicant, when both these witnesses, appeared in the witness box, have turned hostile, and, as such, there is no evidence, on the record, to connect the applicant with the commission of crime, for which, he has been kept in judicial custody. He has further pleaded that his judicial custody is stated to be for the last two years and the prosecution could not examine even half of the proposed witnesses, in this case.
4. Lastly, it has been pleaded that rigors of Section 37 of the NDPS Act are not applicable, in the present case and, as such, a prayer has been made to release him on bail during the pendency of the trial.
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 35. To butterss his contention, the petitioner has annexed the copies of the statements of the PWs recorded .
before the learned trial Court.
6. When, put on notice, the police has filed status report, disclosing therein, that on 30.05.2020, ASI Ramesh Kumar along with HASI Desraj No. 311 and other police officials had left the Police Station for night patrolling duty. At about 3:00 a.m. the police party, when, reached Amrali Chowk, they noticed a truck No. HP-78-6029, found parked there. The driver side window was found opened and one person was found standing on the back side of the truck, who, on seeing the police, fled away, by taking the benefit of the darkness.
Thereafter, the truck was checked. In the truck, the police found four white coloured sacks. Meanwhile, the patrolling party of the Police Post Tahliwal also reached there, they were also apprised about the above facts.
7. It is further case of the police, in the status report that, HHC Dharam Pal No. 77, was sent to bring the independent witnesses, but he returned back and reported to the I.O. that due to imposition of Covid-19, restrictions, no one had opened the door of their houses.
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 48. As such, S.I. Ashok Kumar and HC Sumit Kumar No.101, were associated in the investigation of the case and .
all the four sacks were checked and on opening the same, it was found containing brown coloured substance, which, on the basis of the experience, was found to be Poppy Straw.
During investigation, when tarpaulin over the truck was removed, other white coloured sacks were also found. All were found containing Poppy Husk. Since large quantity of Poppy Husk was found, as such, a large weighing scale was requested to be brought, by telephonically requesting the Police Station. At about 4:25 a.m. HC Jaswinder Singh No.4 and HHC Kamal Krishan No.226, reached there in their private vehicle with weighing scale. Total 58 sacks containing Poppy Husk was were found. Those sacks were marked as A-1 to A-58 and on weighment, total Poppy Husk was found to be 1733.500 Kg. All the sacks were separately sealed with one-
one seal of seal "A" and other codal formalities were completed on spot. When cabin of the truck was checked, then, documents were found, in the dashboard of the truck, the Insurance of the said vehicle was found in the name of Jaswinder Singh, son of Dilbag Singh, resident of Village and ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 5 Post Office Polian Beat, Police Station Haroli, District Una, H.P. Thereafter, rukka was prepared and the same was sent to the .
Police Station for registration of the F.I.R. Other codal formalities were completed on the spot.
9. During investigation, I.O. prepared a spot map.
Further, investigation of the case was then taken over by Inspector/SHO Gaurav Bhardwaj, Police Station Amb, District Una, H.P. During investigation, he has firstly, recorded the statement of ASI Ramesh Kumar, who has disclosed that he can identify the person, who had fled away from the spot and upon which, the driver/owner of the truck bearing No. HP-78- 6029, namely, Jaswinder Singh son of Dilbag Singh, resident of Polian Beat, Tehsil and Police Station Haroli, District Una, H.P. was searched and later on, he was nabbed. He was arrested at about 3:10 a.m. on 01.06.2020. Thereafter, his face was muffled and was produced before the Court. Thereafter, in the test identification parade, ASI Ramesh Kumar, identified accused-Jaswinder Singh son of Dilbag Singh as the persons, who had fled away from the spot.
10. As per directions of Superintendent of Police, Una, further investigation of the case, was handed over to ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 6 DySP/SDPO Anil Kumar. During investigation, the police found that Deepak @ Deepa, who is cousin of Jaswinder Singh was .
also involved, in this case, and it was also found that on the intervening night of 30/31.05.2020, both of them had crossed Gondpur barrier in the said vehicle. At that time, Deepak was on the steering wheel. On 06.06.2020, Deepak was also arrested. During investigation, accused-Deepak disclosed that when, he and accused-Jaswinder were unloading the Poppy Husk, then, all of a sudden, they had noticed the police and then they fled away from the spot. During the police custody, accused-Deepak got recorded his statement under Section 27 of the Indian Evidence Act, disclosing therein that he can get recovered the Poppy Starw, weighing 2.452 Kg, which he had kept concealed in the bushes in Janani Khad, upon which he got recovered said substance, alongwith the slip of toll entry and Aadhar card of accused-Deepak. During the search of the house of accused-Deepak, currency of Rs.2 Lakh was also found.
11. During investigation, the police also found involvement of one Ahmad Gani of Anantnag, upon which, the CDR of accused-Deepak was also obtained, on the ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 7 perusal of the same it was found that he was in constant touch with Ahmad Gani on phone and the accused-Deepak .
has also transferred rupees two lakh in his favour through the Branch of J&K, Bank, Hoshiarpur (Pb).
12. It is further case of the police, that during investigation, it was also found that on 31.05.2020, accused-
Deepak was helped by one Mani Ram to flee away in his vehicle bearing No.PB-14B-0015. When, the call details of the mobile phone of the Mani Ram was obtained, it was found that he had used his mobile phone on 31.05.2020, from the wee hours of the day till morning. Thereafter his phone was found to be switched off and he was found absent from his house. On 21.06.2020, he was associated in the investigation and was arrested under the provisions of Section 29 of NDPS Act. During investigation, Mani Ram, disclosed that he and Vijay Kumar (applicant), had delivered the Poppy Husk to a person, in Village Gondppur Jaichand. Thereafter, the house of the said person, who had received the Poppy Husk, was identified by them. They had indentified the house of the said person as house of Major Singh son of Mela Ram, resident of Village and Post Office Gondpur Jainchand, Tehsil and Police ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 8 Station Haroli, District Una, H.P. Said Major Singh was also arrested under Section 29 of the ND&PS Act on 22.06.2020.
.
13. During investigation, accused-Major Singh disclosed that the Poppy starw, which he had received from Vijay Kumar @ Ghammi (applicant) and Mani, he has buried the same in the backyard of his residential house by putting the same in the drums. Upon which, his disclosure statement under Section 27 was recorded and in pursuance to the same he get recovered the Poppy Husk, which was put in two drums, which on weighment was found 67.100 Kg. The said contraband was also taken into possession. After completing the other codal formalities. Thereafter, accused-Vijay Kumar (applicant), was also associated in the investigation of the case but he has not cooperated with the police during investigation and thereafter he has stopped to join the investigation on 12.06.2020. On 26.06.2020, he was again associated and arrested in this case. According to police Vijay Kumar @ Ghammi (applicant) in touch with accused-
Deepak Kumar from 30.05.2020. During investigation, it was found that accused-Deepak @ Deepa. had paid the price of the Poppy Husk, amounting to Rs.30 Lakhs, to one Dhanraj and ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 9 Dhanraj used to transfer the said cash through Hawala transaction to one Manzoor Ahmad Gai from Anantnag(JK) .
and NBW to the said person were obtained from the Court and on 02.07.2020, Dhanraj was arrested in CIA Office, Samana, District Patiala(pb). On 06.07.2020, the police took said accused- Dhanraj to Samana and Bassipathana.
Accused-Manzoor Ahmad Gani son Gulab Nabi Gani is yet to be arrested in this case and proceedings under Section 82 of Cr.P.C. have been initiated against him.
14. On all these submissions, the police has opposed the bail application on the following grounds:
i. In case, the accused-Vijay Kumar (applicant) is released on bail, he will create further obstacles in the arrest of Manzoor Ahmad Gani, who is still not arrested in this case.
ii. In case, the accused-Vijay Kumar (applicant) released on bail he may again indulge in the same business.
iii. As per status report, following cases have been registered against the accused-Vijay Kumar (applicant):-
a. F.I.R. No. 73 of 2011, dated 03.04.2011, under Section 61-I-14 of Excise Act;
b. F.I.R. No. 131 of 2011, dated 05.06.2011, under Section 61-I-14 of Excise Act;::: Downloaded on - 28/01/2023 20:30:56 :::CIS 10
c. F.I.R. No. 174 of 2018, dated 20.06.2018, under Section 15-61-85 of NDPS Act.
.
d. F.I.R. No.175 of 09, dated 01.08.2009, under Section 61-I-14 of Excise Act and Section 181,192, 196 of M.V.Act.
e. F.I.R. No. 129 of 2020, dated 03.05.2010, under Section 61-I-14 of Excise Act;
f. F.I.R. No.185 of 2011, dated 21.07.2011, under Section 61-I-14 of Excise Act;
g. F.I.R. No. 15 of 2013, dated 20.01.2013, under Section 61-I-14 of Excise Act;
h. F.I.R. No. 222 of 2013, dated 25.11.2013, under Section 39(1)(a) of H.P. Excise Act.
i. F.I.R. No. 27 of 2014, dated 18.02.2014, under Section 39(1)(a) of H.P. Excise Act.
j. F.I.R. No.183 of 2014, dated 25.11.2013, under Section 39(1)(a) of H.P. Excise Act.
k. F.I.R. No. 202 of 2014, dated 29.09.2014 under Section 39(1)(a) of H.P. Excise Act.
l. F.I.R. No. 207 of 2019, dated 11.09.2019, under Section 13(a)-3-67 Gambling Act; and m. F.I.R. No.294/16, dated 2.10.2016, under Section 39(1)(a) of H.P. Excise Act.
iv. In case accused-Vijay Kumar (applicant) is released on bail, he will not be available for the trial and may flee away from justice.
v. Due to such large quantity of contraband, there is resentment in the general public and he may allure ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 11 the young generation in the bad habits of consuming intoxicated substance.
.
vi. In case, accused-Vijay Kumar (applicant) is released on bail he may corisen the witnesses.
15. On these submissions, a prayer has been made to dismiss the bail application.
16. Heard.
17. So far as the arguments of the learned appearing of the applicant qua the fact that the independent witnesses have not supported the case, is concerned, no benefit could be drawn by the applicant from this fact.
18. Perusal of the statements PW-8 and PW-9, shows that both the witnesses, no doubt, turned hostile but the evidence of the hostile witnesses does not efface from the record and same can be considered by the Court, at the time of final decision of the case.
Moreover, there is no legal bar that the conviction cannot be based upon the testimony of the official witnesses or it is also not a rule that in case the independent witnesses turned hostile, the entire case of the prosecution, if otherwise proved on the basis of the official witnesses, is liable to be ignored. As such, no benefit could be derived by the applicant on the basis of above facts.
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 1219. So far as the arguments of the learned counsel appearing for the applicant qua the fact that the confession .
statement under Section 67 of the ND&PS Act is inadmissible, is concerned, the same is a question of fact, which will be seen at the time of trial. Moreover, there is nothing on the file to justify the claim of the applicant that rigors of Section 37 of the ND&PS act are not applicable.
20. Once it has been held that the contraband recovered in the present case is falls within the definition of"commercial quantity", as such, rigors of section 37 of ND&PS Act are fully applicable in this case.
21. Before proceeding further the contention of the learned counsel appearing for the applicant qua the fact that the applicant has been arrested, in this case, under Section 29 of the ND&PS Act, is concerned, it is not necessary that the possession of the contraband should be actual possession, it can be conscious possession.
22. While holding so, the view of this Court guided by the decision of Hon'ble Apex Court, in a case, titled as Union of India, through Narcotics Control Bureau, Lucknow versus MD. Nawazkhan, reported in (2021) 10 Supreme Court Cases 100. The relevant para 26 of the judgment is reproduced, as under:-
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 13"26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of .
Punjab 17, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan 18 , this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge."
23. The accused, in the present case, has been arrested under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there in the NDPS Act in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 439 Cr. P.C. Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 14 for the offence, involving commercial quantity of contraband.
Once, it has been held that the contraband allegedly recovered .
from the possession of the accused falls in the category of 'commercial quantity', as per the Notification issued by the Central Government, then the rigors of Section 37 of the NDPS Act come into play.
24. The conditions regarding the applicability of Section 37 of the NDPS Act, have been discussed by a three Judges' Bench of the Hon'ble Supreme Court, way back in the year 2004, in cases, titled as Collector of Customs, New Delhi versus Ahmadalieva Nodira, reported in (2004) 3 Supreme Court Cases 549, and Narcotics Control Bureau versus Dilip Pralhad Namade, reported in (2004) 3 Supreme Court Cases 619. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade's case (supra), are reproduced, as under:
"9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court 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.::: Downloaded on - 28/01/2023 20:30:56 :::CIS 15
10. 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 the present accused- respondent is concerned, are (1) 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 for 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 and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.
11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non- compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37."::: Downloaded on - 28/01/2023 20:30:56 :::CIS 16
25. The term 'reasonable' has elaborately been discussed .
by the Hon'ble Supreme Court, in case titled as Union of India versus Shiv Shanker Kesari, reported in (2007) 7 Supreme Court Cases 798.
The relevant paras-8 to 11 of the judgment are reproduced, as under:
"8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
"7. ... In Strouds Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.
(See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC 532].
9. "9. ...It is often said that "an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space". The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 17 'the expression "reasonable" is a relative term, and the facts of the particular controversy must be considered before the question as to what .
constitutes reasonable can be determined'.
It is not meant to be expedient or convenient but certainly something more than that."
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315).
11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."
26. This view has again been reiterated by the Hon'ble Supreme Court in a latest decision, in case titled as State of Kerala and others versus Rajesh and others, reported in (2020) 12 Supreme Court Cases 122. The relevant paras 18 to 21 of the judgment are reproduced, as under:
"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 18 NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:
.
"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
'24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 19 81 of 1985 specifying mandatory minimum imprisonment and fine.
.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-
economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
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 CrPC, 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 ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 20 guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
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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 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.
21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act."
27. 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 reiterated the earlier view regarding 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:::: Downloaded on - 28/01/2023 20:30:56 :::CIS 21
"[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 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.
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 ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 22 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. Ahmadalieva Nodira", (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus:
"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] ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 23
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 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 ::: Downloaded on - 28/01/2023 20:30:56 :::CIS 24 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."
28. In view of the above, there is nothing on the record 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.
29. While deciding the question of bail, it is the duty of the Court to maintain a delicate balance between individual liberty and larger interest of the society. Releasing a person involved in such a crime, will give a wrong signal to the society that the person, after being arrested, in such a crime, is still moving freely in the society.
::: Downloaded on - 28/01/2023 20:30:56 :::CIS 2530. At the time of deciding the bail application, the detailed discussion regarding the evidence, so collected, by the police, .
during investigation should be avoided as it may cause prejudice to the case of prosecution or to the case of the accused.
31. Moreover, seriousness of the crime is also one of the considerations to be kept in mind while deciding the bail application.
32. Considering all these facts, there is no ground to pass any order in favour of the bail applicant under Section 439 CrPC.
Consequently, the bail application of the applicant is dismissed.
33. 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.
January 27th, 2023 ( Virender Singh )
(ravinder) Vacation Judge
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