Himachal Pradesh High Court
Sandeep Kumar vs State Of Himachal Pradesh on 15 July, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 469 of 2020 Reserved on: 10 July, 2020 .
Date of Decision: 15 July, 2020
Sandeep Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 YES.
For the petitioner: Mr. Virender Singh Kanwar, Advocate.
For the respondent: Mr. Nand Lal Thakur, Mr. Ashwani K. Sharma Additional Advocates General with Mr. Ram Lal Thakur, Asstt. A.G. & Mr. Rajat Chauhan, Law Officer.
Mr. Ankush Dass Sood, Senior Advocate with Ms. Shweta Joolka, Advocate as Amicus Curiae.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge The petitioner, who is under incarceration from 15 th Jan 2020, for allegedly hiring accused Balkar and Manjeet Singh for purchasing 1 kilogram and 218 grams of charas, has come up before this Court seeking bail.
2. Based on a First Information Report (FIR), the police arrested the petitioner, in FIR No.198 of 2019, dated 30.08.2019, registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station, Boileauganj, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offences.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 23. The petitioner filed a petition under Section 439 CrPC before Special Judge (II), Shimla, District Shimla, H.P. However, vide order dated 29.01.2020, the Court dismissed the petition, because, in the opinion of the .
Court, the petitioner could not cross the rigors of S. 37 of the NDPS Act and the petitioner and the main accused, from whose possession the Investigator had recovered the charas, had made multiple phone calls between them, which calls immediately preceded such seizure.
4. I have read the status report(s) and heard Ld. Counsel for the parties. Learned counsel for the petitioner has annexed the status report filed by the respondent-State. Learned Additional Advocate General submits that he does not want to present the new status report, and the status report filed with the petition may be considered.
FACTS:
5. The allegations in the First Information Report and the gist of the evidence collected by the Investigator are on Aug 30, 2019, a police party headed by ASI, was on traffic control duty at Police Check Post, Khwara Chowki, Shoghi. At around 6.30 p.m., one motorcycle came from the Shimla side. Apart from the driver, it had a pillion rider. The ASI signaled the bike to stop, on which the driver parked it on the side of the road. The pillion rider had a cloth bag on his lap. The moment the police officer asked the driver of the motorcycle to show documents, the pillion rider opened the bag's zip, and the Police could notice the charas in it. On this, the Police inquired the names of the driver of the motorcycle, who revealed his name as Balkar, accused No.1, and the pillion rider told his name as Manjeet Singh, accused No.2. After that, the Police weighed the charas, which measured one kilogram and 218 grams. After completing the procedural requirement under the NDPS Act and CrPC, the Police sent the ruqa for registration of FIR and arrested these two accused persons. On the next day, the Police interrogated accused Balkar and Manjeet Singh. During the investigation, both the accused told the Investigator that Sandeep Kumar, the bail petitioner, a resident of Mohali (Punjab), had hired them to purchase the charas from one Govind Singh, resident of Kullu. The said Sandeep Kumar ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 3 had also given the phone number of Govind Singh and his phone number to both these accused persons Balkar and Manjeet Singh. It transpired during the investigation that there was an exchange of calls between Sandeep .
Singh, Balkar, and Govind Singh. The Police obtained a call details record (CDR) to establish its case. After that, the Police started searching Sandeep Kumar and Govind Singh. On Jan 15, 2020, the Police traced the bail petitioner Sandeep Kumar from Badmazra, Panjab, and arrested him.
SUBMISSIONS:
7. The learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He also places reliance upon the orders of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal Pradesh, 2010(1) SimLC 490; and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.
8. On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General, contends that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the main accused, and the seller of charas, which prima facie points out towards his involvement. He also relies upon the decision of this Court in CrMPM 126 of 2018, Manohar Lal v. State of H.P., and CrMPM 1084 of 2020, Om Parkash v. State of H.P.
9. Ld. Amicus Curiae, Mr. Ankush Dass Sood, Sr. Advocate duly assisted by Ms. Shweta Joolka, Advocate has drawn the attention of this Court to the concepts of 'Due Process of Law,' 'reasonableness,' and 'satisfaction of the conscience of the Court,' while considering bails under NDPS Act, involving the commercial quantity of substance.
ANALYSIS AND REASONING:
10. Pre-trial incarceration needs justification depending upon the statutory restrictions, heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victim(s) and ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 4 witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
.
11. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, a Constitutional bench of Supreme Court holds in Para 30, as follows, It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail
12. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three-member bench of Supreme Court holds, "18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so."
::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 513. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, Supreme Court holds, .
2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.
3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime.
14. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court in Para 16, holds, The delicate light of the law favours release unless countered by the negative criteria necessitating that course.
15. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, Supreme Court holds,
1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty.
However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 6 bail illusory.
16. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in its schedule, and S. 2 (xxiii-a), .
defines a small quantity as the quantity lesser than the quantity specified in the schedule. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One Lac, and bail is subject to the riders mandated in S. 37 of NDPS Act.
17. In the present case, as per the contentions of the State, the quantity of substance seized is commercial quantity. Given the legislative mandate of S. 37 of NDPS Act, the Court can release a person, accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after passing its rigors. Section 37 of the Act is extracted 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 2[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."::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 7
18. 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.
.
19. The first condition is to provide an opportunity to the Public Prosecutor and clear her 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 that during bail 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. Be that it may, if such a finding is arrived at by the Court, it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions, the reasonable grounds for believing that during the bail period, the accused is not guilty of such an offence, the Court still cannot give a finding or assurance that the accused is not likely to commit any such crime. Thus, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case.
20. JUDICIAL PRECEDENTS ON S. 37 OF NDPS ACT:
a) In Union of India v. Merajuddin, (1999) 6 SCC 43, a three Judges Bench of Supreme Court while cancelling the bail, observed in Para 3, 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."
b) In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, a three Judges 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) ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 8 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.
c) In Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, a three- judges bench of Supreme Court holds,
5. ...In other words, Section 37 departs from the long established principle of presumption of innocence in favour of an accused person until proved otherwise.
d) 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 CrPC, without reference to Section 37 of the NDPS Act.
e) 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 the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of Narcotic Drugs And Psychotropic Substances Act are in negative terms ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 9 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 inconsistency between Section 439 Criminal Procedure Code and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Section 37 prevails.
f) In Babua v. State of Orissa, (2001) 2 SCC 566, Supreme Court holds, [3] In view of Section 37(1)(b) of the Act unless 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 alone will entitle him to a bail. In the present case, the petitioner attempted to secure bail on various grounds but failed. But those reasons would be insignificant if we bear in mind the scope of Section 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not. At this juncture, we cannot say that the accused is not guilty of the offence if the allegations made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such offence. The other aspect to be borne in mind is that the liberty of a citizen has got to be balanced with the interest of the society. In cases where narcotic drugs and psychotropic substances are involved, the accused would indulge in activities which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Section 37(1)(b) having been upheld, we cannot take any other view.
g) 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 ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 10 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.
h) In N.C.B.Trivandrarum v. Jalaluddin, 2004 Law Suit (SC) 1598, Supreme Court observed,
3. ...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.
i) In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Supreme Court holds,
6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied.
They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and. that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.
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.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 11 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'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states .
that it would be unreasonable to expect an exact definition of the word "reasonable'. Reason varies it, 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. It is often said "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 in re Nice &., Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, "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(4) RCR(Civil) 265 : (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.
12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.
::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 12j) In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court holds,
9. ...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.
k) In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, Supreme Court holds,
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.
l) In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, Supreme Court holds, ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 13
7. ...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. 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 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.
m) In Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84, in the given facts, Supreme Court granted bail, by observing,
10. The prosecution story is that the appellant was aware of what his brother was doing and was actively helping his brother. At this stage we would not like to comment on the merits of the allegations levelled against the present appellant. But other than the few WhatsApp messages and his own statement which he has resiled from, there is very little other evidence. At this stage it appears that the appellant may not have even been aware of the entire conspiracy because even the prosecution story is that the brother himself did not know what was loaded on the ship till he was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go towards Egypt and that would not have been a crime under the NDPS Act. It seems that Suprit Tiwari and other 7 crew members then decided to make much more money by bringing the ship to India with the intention of disposing ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 14 of the drugs in India. During this period the Master Suprit Tiwari took the help of Vishal Kumar Yadav and Irfan Sheikh who had to deliver the consignment to Suleman who had to arrange the money after delivery.
.
The main allegation made against the appellant is that he sent the list of the crew members after deleting the names of 4 Iranians and Esthekhar Alam to Vishal Kumar Yadav and Irfan Sheikh through WhatsApp with a view to make their disembarkation process easier.
Even if we take the prosecution case at the highest, the appellant was aware that his brother was indulging in some illegal activity because obviously such huge amount of money could not be made otherwise. However, at this stage it cannot be said with certainty whether he was aware that drugs were being smuggled on the ship or not, though the allegation is that he made such a statement to the NCB under Section 67 of the NDPS Act.
11. At this stage, without going into the merits, we feel that the case of the appellant herein is totally different from the other accused. Reasonable possibility is there that he may be acquitted. He has been behind bars since his arrest on 04.08.2017 i.e. for more than 2 years and he is a young man aged about 25 years. He is a B.Tech Graduate. Therefore, under facts and circumstances of this case we feel that this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members. The case of the appellant is different from that of all the other accused, whether it be the Master of the ship, the crew members or the persons who introduced the Master to the prospective buyers and the prospective buyers.
12. We, however, feel that some stringent conditions will have to be imposed upon the appellant.
SUM UP:
21. From the summary of the law relating to rigors of S.37 of NDPS Act, while granting bail involving commercial quantities in the NDPS Act, the following fundamental principles emerge:
a) The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v.
Ahmadalieva Nodira, (2004) 3 SCC 549].
::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 15b) 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].
.
c) 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].
d) 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. Ahmadalieva Nodira, (2004) 3 SCC 549].
e) Twin conditions of S. 37 are cumulative and not alternative.
[Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
f) 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].
g) 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 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].
h) 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].
i) 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].
j) 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].
k) Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84].
22. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches would be detailed and ::: Downloaded on - 15/07/2020 20:22:08 :::HCHP 16 paintings with a few strokes. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs.
23. A perusal of the status report reveals the details of calls between the .
accused, preceding contraband's seizure. The bail petition is silent about this aspect. The Investigator has collected sufficient evidence to make out a prima facie case against the bail petitioner.
24. Without commenting on the merits of the evidence collected so far, the petitioner has failed to cross the hurdle of S. 37 of NDPS Act. The conscience of the Court does not prick to believe the petitioner's entitlement for bail.
25. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, and keeping in view the nature of allegations, no case for bail is made out in favour of the petitioner.
26. 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.
27. Given the above reasoning, in my considered opinion, no case for bail is made out at this stage. Resultantly, the present petition stands dismissed.
All pending applications, if any, stand closed.
28. This Court expresses its gratitude to Mr. Ankush Dass Sood, learned Senior Advocate assisted by Ms. Shweta Joolka, Advocate for rendering valuable assistance to this Court pro bono.
29. While deciding the propositions of law involved in this matter, I have considered all the similar orders/judgments pronounced by me. Thus, this order is more comprehensive and up to date. Given above, all previous decisions/orders passed by me where the proposition of law was similar, or somewhat similar, and also those passed under Section 37 of NDPS Act, be not cited as precedents.
Petition dismissed.
(Anoop Chitkara),
July 15, 2020 (ps) Judge.
::: Downloaded on - 15/07/2020 20:22:08 :::HCHP