Punjab-Haryana High Court
Pushap Raj vs Union Of India on 30 September, 2022
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
CRM-M-30545-2021
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-30545-2021
Reserved on: 14.09.2022
Pronounced on: 30-09-2022
Pushap Raj ...Petitioner
Versus
Union of India ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. J.s. Mehndiratta, Advocate
For the petitioner.
Mr. Rajeev Sharma, Advocate
For the respondent-UOI.
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ANOOP CHITKARA, J.
Crime No. Dated Police Station Sections 22 of 2021 25.03.2021 NCB, Chandigarh 8, 20, 25, 27-A & 29 of NDPS Act, 1985 (Act 61 of 1985)
1. The petitioner under arrest fors elling 21.37 kilograms of charas in association of his brother Desh Raj, which falls in the commercial quantity, violating the provisions as mentioned above of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), per the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail.
2. In paragraph 10 of the bail petition, the accused declares that he has no criminal antecedents.
3. Ld. Counsel for the petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
4. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category.
REASONING:
5. The substance involved in the present case is Charas, and weighs 21.370 kgs. Entry no. 23 of the table specifying small and commercial quantities specifies the quantity greater than 1 kg as commercial quantity and lesser than 100 grams as 1 1 of 5 ::: Downloaded on - 02-10-2022 08:18:29 ::: 2 CRM-M-30545-2021 small.Thus, the quantity allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
6. On 25th March 2021, NCB received specific prior information that Desh Raj and Yashwant, both residents of Kullu, HP, indulge in the drugs trade and are going to deliver a massive consignment of charas to Vijay Kumar of Village Alwea, Haryana and that the charas is concealed in an Alto car, which would cross Dappar Toll Plaza between 12.45 to 13.30. After following the procedural requirements of the NDPS Act and CrPC, the NCB spotted the car, signalled it to stop, and conducted its search, which led to the recovery of 21.370 kilograms of charas. After arresting Desh Raj and Yashwant, the Intelligence Officer of NCB recorded their statements under section 67 of the NDPS Act. In his statement, the accused Desh Raj disclosed that Vijay Kumar had called him on his mobile and asked him to arrange 25 kgs of charas. Desh Raj further disclosed that his brother (Desh Raj's brother) Pushp Raj is also involved in trafficking the charas with him, and out of the recovered charas of 21.370 kg, Pushp Raj had arranged some portion, and even earlier, Pushp Raj had delivered charas to Vijay Kumar on three-four occasions. After that, the Intelligence Officer arrested Pushpa Raj, who allegedly made a voluntary statement under section 67 of the NDPS Act, disclosing his involvement and that on 22nd March 2022, Vijay had called him on his mobile number asked to arrange charas. After that, the NCB procured the call details (Reference paragraph no. 70 of the complaint). NCB seized mobile phones and sent those for forensic examination to CFSL Chandigarh. On his arrest, Vijay Kumar also stated about calling Pushpa Raj on his mobile phone (Reference paragraph no. 74 of the complaint).
7. There is primafacie evidence of call details between Vijay and Pushpaj on 22nd March 2021, and after that, the charas was recovered on 25th March 2021, which is in proximity and corroborates the recovery with the phone calls.
8. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.
9. In Abida v. State of Haryana, CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows:
[10]. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or 2 2 of 5 ::: Downloaded on - 02-10-2022 08:18:30 ::: 3 CRM-M-30545-2021 psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail application. 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 is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates. 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. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts.
[30]. From the summary of the law relating to rigors of S.37 of NDPS Act, while granting bail involving commercial quantities, the following fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6].
(b). The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(c). The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin&Anr, (2018) 13 SCC 738, Para 7].
(e). Apart from granting opportunity to the Public Prosecutor, the other twin conditions which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(g). 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. [State of Kerala v. Rajesh, AIR 2020 SC 721, Para 21].
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(h). Twin conditions of S. 37 are cumulative and not alternative. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(i). At the bail 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 an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecution witnesses are believed, then they would not result in a conviction. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the parties does not amount to an indication of a judicial mind or a judicious application of mind. [UOI v. Prateek Shukla, (2021) 5 SCC 430, Para 12].
(l). Section 37 departs from the long-established principle of presumption of innocence in favour of an accused person until proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5].
(m). While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].
(n). The confessional statement recorded under Section 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1]
(o). In the absence of clarity on the quantitative analysis of the samples from the laboratory, the prosecution cannot be heard to state at this preliminary stage that the accused possessed a commercial quantity of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India, 2021 SCC OnLine SC 1235, Para 10].
(p). When there is evidence of conscious possession of commercial quantity of psychotropic substances, such accused is not entitled to bail given Section 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta, 2022 SCC OnLine SC 47, Para 12].
(p). Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84, Para 12].
[31]. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC.
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10. A perusal of the bail petition and the documents attached, primafacie points towards the petitioner's involvement and does not make out a case for bail. Any further discussions are likely to prejudice the petitioner; this court refrains from doing so.In the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner fails to make a case for bail.
11. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
Petition dismissed. All pending applications, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
September 30, 2022
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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