Himachal Pradesh High Court
Dharam Pal vs State Of Himachal Pradesh on 12 July, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1316 of 2019.
Date of Decision: 12.07.2019 .
Dharam Pal ...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 For the respondent :
:
r to Mr. Imran Khan, Advocate.
Mr. Ashwani K. Sharma, and Mr. Nand Lal Thakur, Addl.
Advocate Generals.
Anoop Chitkara, Judge.
The present petition is under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail in FIR No. 32 of 2019 dated 04.03.2019 registered at Police Station Chowari, District Chamba, H.P. under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (from now on referred to as the Act).
2. The case of the petitioner is that the police has arraigned him as an accused in F.I.R. No. 32 of 2019 registered against him under Section 20 of the NDPS Act at Police Station Chowari, District Chamba. Learned counsel appearing for the bail petitioner contends that the petitioner is a student of final year and on 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:43:53 :::HCHP3rd March, 2019 after visiting his native village he was going to Baddi to appear in an examination, scheduled for 5 th March, 2019. He boarded the bus bound from Chamba to Shimla and got a confirmed .
ticket to Nalagarh and allotted seat No. 29. At Tunuhatti Barrier police checked the bus, and as per the case of the prosecution the charas was found, and police seized the same. After that, the cops fastened its liability on the accused. The learned counsel for the petitioner submitted that the bail petitioner is a student, and his incarceration will affect his studies. The counsel further submitted that the police had recovered the charas from the roof of the bus. However, later on, the accused was fastened with the liability, whereas he has nothing to do with the said contraband.
3. The quantity of charas, which the Police seized, is not mentioned in the bail petition. However, Learned counsel for the bail petitioner contends that the amount of charas involved is greater than 1 kilogram. The Notification, issued under Section 2(vii) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, mentions charas at Sr. No. 23. If the weight of chars is greater than 1 kilogram than it shall fall in the commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall apply in the present case. Resultantly, the present case is not at par with any other instance of the grant of bail in a penal offence.
4. I have heard Shri Ashwani Kumar Sharma and Shri Nand Lal Thakur, Additional Advocate Generals, for the State. Both ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP of them have vehemently opposes the petition for grant of bail to the accused.
5. I have also gone through the bail petition. In the petition .
it is nowhere pleaded by the accused that police is going to arrest the accused because of some hostility or as a part of a conspiracy. The learned counsel has argued that the police had recovered a bag from the roof of the bus and in that bag, police recovered the identity card of the accused. On this basis, the investigating officer is likely to arrest the bail petitioner and fastened him with criminal liability. Even if all these submissions are accepted to be accurate, still this Court can release a person/accused for committing an offence punishable under the NDPS Act to possess commercial quantity of contraband, on clearance of the rigors contained in Section 37 of the Act. 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 ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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."
6. 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.
(i) The first condition is when the Public Prosecutor does not oppose the bail application.
(ii) The second stipulation is that the Court must be satisfied that the 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 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 reasonable ground to believe that during the period of bail, the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance 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.
7. To understand that why the present bail petitioner is not entitled to the discretion of pre-arrest bail, the following illustration is relevant.
Take somewhat an identical case where some person, when he sees the police or when the cops challenge him, throws away his bag, ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP containing the prohibited contraband in it, and runs away from the spot. At a later stage Investigating Officer arrests the person by claiming it was the same person who had run away on seeing the .
police party. But such person leads primary evidence of alibi by proving his presence at some other place, or some allegations that the police let off the real culprit, on some extraneous considerations, and that the police is making him a scapegoat.
8. To discharge the statutory obligation of Section 37(1)(a)
(ii) of NDPS Act, the bail petitioner is required to declare that if the Court grants bail to him, then there is no likelihood of his repeating any offence. The petitioner did not utter a single word in his petition that he had no criminal history. The only declaration he made in Para 5 of the petition reads as follows:
"That the petitioner is neither connected nor involved in the commission of any offence and has been falsely implicated."
9. Now this declaration is in connection with the present FIR and not specifically with the criminal history. The Courts can infer such an assurance only when there is a specific declaration in the bail petition, couched in whatever words, that he has no criminal history.
10. In the present case, there is not even a whisper or a word in the pleadings of the accused which suggest that the petitioner was not present in the bus at the time of the alleged recovery of the contraband. It is also not pleaded that there is some hostility with the police personnel. The only contention raised is that the police has falsely implicated the accused.
::: Downloaded on - 29/09/2019 00:43:53 :::HCHP11. The Supreme Court, in the following judgments, has declared Section 37 NDPS as mandatory:
a) In CBI v Dhan Singh, (2003) 9 SCC 248, Supreme Court .
holds:
"5. Section 37 of the Act is mandatory. Before grant of bail the ingredients mentioned therein are required to be examined and bail granted only when the applicant fulfills the conditions stipulated in Section 37."
b) N C B Trivandrarum v Jalaluddin, 2004 (115) ECR 99, Supreme Court observed:
"In the instant case we notice that the matter came up for admission on 12th August,2002 and there is nothing on record to show that the Public Prosecutor was given the time to file objections. What is recorded is that he opposed the grant of bail. 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."
c) In Union of India v. Niyazuddin & Anr, 2018 (13) SCC 738, Supreme Court holds:
::: Downloaded on - 29/09/2019 00:43:53 :::HCHP"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. The accusation in the present case is with regard to the fourth factor namely, commercial quantity.
7. ...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."
12. The law on conditions of Section 37 of NDPS is well settled by a catena of judicial verdicts, few on which are as follows:
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 ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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. 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 ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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 judges bench of Supreme Court observed:
"The respondent is accused on an offence under the NDPS Act, 1985. 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. That was not proper. We therefore, allow this appeal and set aside the impugned order of the High Court and cancel the bail granted to the respondent."
c) In Intelligence Officer, Narcotics Bureau v. Sambhu Sonkar and Another, 2001(2) SCC 562, Supreme Court holds:
"5. The scheme of section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439 of the Cr. P.C. 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 negative in prescribing the enlargement of bail of any person accused of commission of an offence under the Act unless two conditions are satisfied. The first condition is that 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 guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates."::: Downloaded on - 29/09/2019 00:43:53 :::HCHP
d) A three judges bench of Supreme Court in Customs, New Delhi v. Ahmadalieva Nodira, 2004(3) SCC 549, 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."
e) In Narcotics Control Bureau v Dilip Pralhad Namade, 2004 (3) SCC 619, Supreme Court observed, "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 ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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."
f) In Narcotics Control Bureau v. Shebar Khan, 2004 (13) SCC 504, Supreme Court observed as under:
"5. The respondent herein was charged of the offences punishable under Sections 8/21/29/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 before the Court of Special Judge, Lucknow. His application for grant of bail was rejected by the Special Judge by assigning ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP reasons therefor. Further application being made to the High Court of Judicature at Allahabad, the High Court without considering the mandatory requirement of Section .
37 of the Act and without coming to the prima facie conclusion that there was no material against the respondent to convict him for the charges alleged against him mechanically proceeded to grant the bail. This Court in the case of Supdt., Narcotics Control Bureau v. R. Paulsamy((2000) 9 SCC 549 : 2001 SCC (Cri) 648)1, has held that in matters arising out of the Narcotic Drugs and Psychotropic Substances Act grant of bail is controlled by Section 37 of the Act and it is mandatory for the Court to hear the Public Prosecutor and come to the prima facie conclusion that there is no material to come to the conclusion that the accused could be held guilty of the charges levelled against him. Since such a conclusion is not recorded by the High Court and is not supported by reasons we think the impugned order cannot be sustained."
g) In Bijando Singh v. Md. Ibocha, 2004 (10) SCC 151, Supreme Court observed, "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 ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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."
h) 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."
i) In Union of India vs. Rattan Mallik Alias Habul, (2009) 2 SCC 624, Supreme Court holds:
::: Downloaded on - 29/09/2019 00:43:53 :::HCHP"12. It is plain from a bare reading of the non obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of .
having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz.
(i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative.
The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
13. The expression "reasonable grounds" has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the court is not called upon to record a finding of "not guilty". At this stage, it is ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP 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 NDPS .
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."
j) In Satpal Singh v. State of Punjab, 2018 (13) SCC 813, a three Judges bench observed:
"14. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under sections 438 or 439 Cr.P.C., 1973 without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so."
13. All these judicial verdicts make it crystal clear that before granting bail in NDPS Act, satisfaction of the restrictions of Section 37 of NDPS is essential.
14. 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 under Section 438 Cr.P.C, stands dismissed.
However, the dismissal of this pre-arrest bail shall not come in the ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP way of the petitioner in filing a post-arrest bail under section 439 Cr.P.C.
15. Any observation made in this order shall not be taken as .
an expression of opinion on the merits of the case, either during the trial or while filing subsequent bail(s), and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.
(Anoop Chitkara), Judge.
12 July, 2019 (TM) ::: Downloaded on - 29/09/2019 00:43:53 :::HCHP