Mohd Hashim vs The State Nct Of Delhi on 14 March, 2022

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Delhi High Court - Orders

Mohd Hashim vs The State Nct Of Delhi on 14 March, 2022

1. The instant bail application under Section 439 of the Code of Criminal Procedure 1973 (hereinafter "Cr.P.C") has been filed by the petitioner seeking Regular bail in FIR bearing No. 182/2019 registered at Police Station Special Cell for the offence under Sections 18/21/29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter "NDPS Act").

2. The story of the prosecution as per FIR is that a secret informer came to the office at Special Cell/SR, Sector-7, Pusp Vihar New Delhi on 13th October 2019 at about 8 PM and informed about peddling of Narcotic drug namely Heroine using a Swift Car bearing number UP 32 FB 27 at about 10:30 PM to 11:30 PM with their associates to supply the same under the Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 1 of 10 Signing Date:16.03.2022 19:17:10 Barapulla Bridge, towards Lajpat Nagar Main Road. On the basis of the said information received, police took action and a raiding party was constituted. The raiding team spread around the area for search and seizure. Three persons, including present petitioner, were apprehended with the contraband. A white coloured transparent polythene was recovered which contained a brown substance of about 5 Kilograms. Thereafter the petitioner/accused was arrested.

3. Learned counsel appearing on behalf of the petitioner submitted that the petitioner has been falsely implicated in the present case. The statutory requirement in accordance with Section 42 and 50 of the NDPS Act was not complied with, no search was conducted as alleged, sampling was not done properly and even no electronic evidence against the petitioner is available on record.

4. Learned counsel submitted that after completion of the investigation chargesheet has been filed, though charges are yet to be framed. There is no likelihood that trial may conclude in the near future.

5. It is further submitted that the petitioner has clean antecedents, is ready to co-operate in the investigation and shall abide by any condition imposed by this Hon‟ble Court while granting regular bail.

6. Per contra, Mr. Raghuvinder Verma, learned APP appearing on behalf of State vehemently opposed the bail application and submitted that the petitioner was apprehended by the raiding team with commercial quantity of the contraband.

7. Learned APP also relied on the contents of the status report filed by the state. The relevant paragraphs of the Status report are as follows:

Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 2 of 10 Signing Date:16.03.2022 19:17:10

"....6. After that in the presence of ACP/SR, 05 Kgs of heroin was recovered from Mohd. Hashim, 05 Kgs of heroin was recovered from Naresh Kumar and 05 Kgs. heroin was recovered from Mohd. Sabir and 10 kg heroin was recovered from secret, cavity of the above car. After that at about 02 AM dated 14.10.2019, ACP Lalit Mohan Negi had left the spot by giving necessary directions to SI Nishant Suran. Total 25 Kgs heroin was seized from trio on the spot. Recovered heroin was seized at the spot.

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9. During the course of investigation, statements of all the witnesses were recorded and recovered sample exhibits of Heroin were deposited in FSL Rohini for analysis and expert opinion.

10. FSL Report has been received and as per FSL report, contents of Acetaminophen', 'Codeine', 'Thebaine',' Morphine' & 'Monoacetyl- morphine' were found in respective exhibits.

11. After completion of investigation, the Charge Sheet against all above three accused persons has been filed in the Hon'ble Court on 09/04/2020."

8. It is further submitted that the petitioner is involved in serious and heinous offence of selling commercial quantity of drugs and there is reason to believe that petitioner is guilty. It is submitted that he may also influence the trial if released on bail. It is submitted that keeping in view the facts and circumstances, the petitioner is not entitled to any discretion of this Court for granting bail. Hence, the instant regular bail is devoid of any merit and is to be dismissed.

Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 3 of 10 Signing Date:16.03.2022 19:17:10

9. Heard learned counsels for the parties and perused the record, specifically the averments made in the petition, the contents of the FIR, and the Status Report filed by the State.

10. In light of the aforesaid, it is pertinent to refer and analyse the provisions and objective of the NDPS Act. Section 37 of the Act 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 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. In view of the gravity of the consequences of drug trafficking, the offences under the Act have been made cognizable and non-bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity unless the two-fold conditions prescribed under the Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 4 of 10 Signing Date:16.03.2022 19:17:10 Section have been met. The conditions include:

a) hearing the Public Prosecutor; and

b) satisfaction of the Court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature.

12. The fetters on the power to grant bail do not end here, they are over and above the consideration of relevant factors that must be done while considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 439 of the Cr.P.C. Thus, it is evident that the present Section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Cr.P.C.

13. The contours of Section 37 of the Act have been analysed by the Hon‟ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429. In this case, the Apex Court was required to adjudge the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon'ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as:

"6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:

Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 5 of 10 Signing Date:16.03.2022 19:17:10 the need to amend the law to further strengthen it, has been felt.

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 death-

blow 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 : 1990 SCC (Cri) 65] as under: (SCC p. 104, para 24)

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 81 of 1985 specifying mandatory minimum imprisonment and fine."

14. Thus, what is evident from the above is that the offences prescribed under the Act are not only a menace to a particular individual but to the entire society especially, the youth of the country. Such offences have a Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 6 of 10 Signing Date:16.03.2022 19:17:10 cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Thus, in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters.

15. As far as condition under Section 37(b)(i) is concerned, there is no ambiguity in its interpretation. It gives effect to the doctrine of audi alteram partem. Since the crime is an act against the society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to oppose a bail application under the Act. Additionally, under Section 37(b)(ii) of the NDPS Act, the Court is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the Court must have „reasonable grounds‟ for such satisfaction.

16. The term „reasonable grounds‟ under Section 37(b)(ii) has been interpreted by the Hon‟ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The special Court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the accused but other family members were also involved. The Supreme Court set aside the order granting bail. In this context, it interpreted „reasonable grounds‟ Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 7 of 10 Signing Date:16.03.2022 19:17:10 under Section 37 of the Act, as under:

"7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 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".

17. Thus, the term „reasonable grounds‟ is not capable of any rigid definition, but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts. However, the standard of satisfaction in such cases is more than mere satisfaction on a prima facie opinion. Thus, the Court before exercising its discretion for granting the bail must record the reasonable grounds before granting bail to the accused.

18. The Supreme Court recently in the case of Union of India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon‟ble Supreme Court, the Court prescribed the following test for granting bail under Section 37 of the Act:

"20. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 8 of 10 Signing Date:16.03.2022 19:17:10 any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."

19. Thus, the Court has to be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the person accused of the offense under the Act is released on bail. The Court has to be satisfied on the basis of reasonable grounds discernible from the facts and circumstances that the Petitioner is not prima facie guilty of offenses that the accused is charged with. Additionally, the Court also needs to be satisfied that the person so released will not commit the offence while being on bail. Both the conditions are interlinked because the legislature intends that in cases where there is a possibility of commission of this grave offence under the Act, the person need not be released. It is so because if the person is released, he is most likely to repeat the offence, thus impacting the society at large. Thus, to not give any leeway to the accused, the Court has to be satisfied about the dual conditions on reasonable grounds.

20. In light of the backdrop of the facts of the case, as well as the large commercial quantity that has been recovered, the gravity of accusations levelled as well as the serious objections raised by the learned APP for state, this Court does not find any merit in the instant bail application. Therefore, in light of the aforesaid analysis of the provisions of the law, the jurisprudence pertaining thereto and the relevant rulings of the Hon'ble Supreme Court referred above, this Court is not inclined to allow the instant petition.

21. Since the rigours of Section 37 of the NDPS Act are not satisfied, Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 9 of 10 Signing Date:16.03.2022 19:17:10 there is no cogent reason to allow the instant bail application. Accordingly, the bail application is dismissed.

22. Pending applications, if any, also stand disposed of.

23. It is made clear that above observations made by this Court while dismissing the instant application shall have no effect on the proceedings of the Court below.

CHANDRA DHARI SINGH, J MARCH 14, 2022 Dy/ct Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 1213/2021 Page 10 of 10 Signing Date:16.03.2022 19:17:10

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Delhi High Court - Orders