Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 30 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr.MP(M) No.1819/2019
Date of Decision: 30th September, 2019
____________________________________________________________
Sandeep Thakur
... Petitioner.
Versus
State of Himachal Pradesh
...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1No.
For the Petitioner : Mr. Abhishek Negi and Mr. Ajay Shandil,
Advocates.
For the Respondent : Mr. Narinder Guleria and Mr. Nand Lal Thakur,
Additional Advocate Generals, for the State.
Anoop Chitkara, Judge (oral)
The petitioner, who alongwith three other persons, was present in the room of a hotel at Parwanoo, from where the police had recovered a bag concealed in the Double Bed, containing 2.689 Kilograms of Charas i.e. commercial quantity, has come up before this Court, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 22. Notice was issued to the State, which was waived by Mr. Narinder Guleria and Mr. Nand Lal Thakur, learned Additional Advocate .
Generals, who have opposed the bail, on the ground that it is barred by Section 37 of the Narcotics Drugs and Psychotropic Substances Act, 1985, (After now called as NDPS Act).
3. The State has opposed the bail, as such, there is no requirement to call for the status report. Prima facie, I am of the considered view that no case for bail is made out.
REASONING
4. Suffice to say that the petitioner has failed to cross the check post of Section 37 of the NDPS Act. The quantity of Charas is greater than 1 Kg., which makes it a commercial quantity, attracting rigors of S. 37 of NDPS Act. Resultantly before granting bail, this Court is under statutory obligation to deal with stringent conditions of Section 37 of the NDPS Act, which reads 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 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 3 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."
5. Reading of Section 37(1)(b)(ii) mandates that two conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail. The first condition is when the Public Prosecutor does not oppose the bail application. And the second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence and also he is not likely to commit any offence while on bail.
Be that as it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions that the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 4 that the accused is not likely to commit any such crime. However, the grant of bail or denial of bail for possessing commercial quantity would depend on .
facts of each case.
6. The limitations stipulated in S. 37 of NDPS Act come into play only when the Courts are prima facie inclined to grant the bail and irrespective of the quantity of the contraband, S. 37 does not attract when the Courts are unwilling to give the bail.
7. When S. 37 of NDPS Act comes into operation then apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance 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 (2) that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative.
8. To understand the exact legal quandary involved in these matters, a brief survey of the judicial precedents pronounced by Hon'ble Supreme Court on S. 37 of NDPS Act, would be of immense help:
a) In Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705, Supreme Court holds,
6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The Narcotic Drugs And Psychotropic Substances Act is a special enactment as already noted it was enacted with a view to make stringent provision for ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 5 the control and regulation of operations relating to narcotic drugs and psychotropic substances. The being the underlying object and particularly when the provisions of Section 37 of Narcotic .
Drugs And Psychotropic Substances Act are in negative terms limiting the scope of the applicability of the provisions of Criminal Procedure Code regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Section 439 Criminal Procedure Code are not subject to the limitation mentioned under Section 37 of Narcotic Drugs And Psychotropic Substances Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconistency between Section 439 Criminal Procedure Code and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37 prevails. In this context Section 4 Criminal Procedure Code may be noted which read thus :
"(4) Trial of offences under the Indian Penal Code and other laws-
(1) All offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Criminal Procedure Code should be subject to such special enactment.
b) In Union of India v. Merajuddin, [2000] 3 RLW(SC) 406, a three member bench of Supreme Court while cancelling the bail, observed as follows, "The High Court appears to have completely ignored the mandate of Sec. 37 of the Narcotic Drugs and Psychotropic Substances Act while granting him bail. The High Court overlooked the prescribed procedure."
::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 6c) In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, a .
three Judge bench of Supreme Court holds,
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 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.
d) In Bijando Singh v. Md. Ibocha, 2004(10) SCC 151, Supreme Court holds,
3. Being aggrieved by the order of the Special Court (NDPS), releasing the accused on bail, the appellant moved the Guwahati High Court against the said order on the ground that the order granting bail is contrary to the provisions of law and the appropriate authority never noticed the provisions of Section 37 of the Narcotic Drugs And Psychotropic Substances Act. The High Court, however, being of the opinion that if the attendance of the accused is secured by means of bail bonds, then he is entitled to be released on bail. The High Court, thus, in our opinion, did not consider the provisions of Section 37 of the Narcotic Drugs And Psychotropic Substances Act. In this view of the matter, the order releasing the accused on bail by the Special Judge as well as the order of the High Court in revision are quashed. The accused should be taken into custody forthwith.
::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 7e) In N.C.B. Trivandrarum v. Jalaluddin A, 2004 (115) ECR 99, Supreme Court observed, .
"Be that as it may another mandatory requirement of Section 37 of the Act is that where Public Prosecutor opposes the bail application, the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. In the impugned order we do not find any such satisfaction recorded by the High Court while granting bail nor there is any material available to show that the High Court applied its mind to these mandatory requirements of the Act.
f) In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court holds:-
9... ... ... (7) The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant 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. In the case hand the High Court seems to have completely overlooked underlying object of Section 37.
g) In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, Supreme Court holds, ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 8
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the Court is not called .
upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the Narcotic Drugs And Psychotropic Substances Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail.
h) In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, a bench of three judges of Supreme Court directed that since the quantity involved was commercial, as such High Court could not have and should not have passed the order under sections 438 or 439 Cr.P.C., without reference to Section 37 of the NDPS Act.
i) In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, Supreme Court holds,
6. Section 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are :- (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. 7. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP 9 provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not .
likely to commit any offence while on bail.
8. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail.
9. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court.
"............................"
9. In the facts and circumstances of the case, the petitioner is unable to clear the check-post of Section 37 of the NDPS Act. Resultantly, the petition stands dismissed. The dismissal of this bail shall not come in the way of the petitioner filing subsequent bail petitions.
Any observation made in this order shall not be taken as an expression of opinion on the merits of the case, and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.
(Anoop Chitkara) Judge 30th September, 2019 (KS) ::: Downloaded on - 30/09/2019 20:25:34 :::HCHP