Himachal Pradesh High Court
Mandeep Singh vs State Of H.P on 13 October, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
1 .
of rt ::: Downloaded on - 13/10/2023 20:38:07 :::CIS IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.2485/2023 Decided on: 13.10.2023 Mandeep Singh ......Petitioner .
Versus
State of H.P. ......Respondent
.......................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting? 1 of ______________________________________________________ For the petitioner : Mr. Anubhav Chopra, Advocate.
rt For the respondent : Mr. Pranay Pratap Singh, Additional Advocate General with Mr. Sidharath Jalta, Deputy Advocate General.
Jyotsna Rewal Dua, J The petitioner seeks regular bail in FIR No. 6/2021, dated 12.01.2021, registered under Sections 21 and 29 of Narcotics Drugs and Psychotropic Substances Act (in short 'NDPS Act') at Police Station, Nahan, District Sirmour, H.P.
2. As per prosecution case, a police party was on patrol duty on 11.1.2021 near 'Katasan', District Sirmour. At 10:05 P.M., it received a secret information about a white coloured Swift car bearing No. HP-17C-2466 coming towards Nahan from Paonta 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -2- Sahib side. The vehicle was stated to have two occupants. It was further informed that the search of this vehicle, which was about to cross 'Katasan' could result in recovery of a large quantity of bottles .
containing prohibited narcotic substance. The information was reliable, therefore, the procedure contemplated under Section 42 of the NDPS Act was complied with. Two persons who were coming out from Katasan Devi Temple were requested and associated as of independent witnesses. At around 10:30 P.M., the vehicle in question came from Paonta Sahib side. It was signalled to stop. The vehicle rt had two occupants. On questioning, the driver of the vehicle disclosed his name as Surender Singh . The other person occupying the adjacent seat gave his name as Mandeep Singh (petitioner).
After complying with the prescribed procedure, search of the vehicle was carried out. From a bag kept along side Mandeep Singh's feet, 15 plastic bottles each having 100 ml syrup marked 'Bolirex' were recovered. All the recovered bottles had Codeine Phosphate, a manufactured drug prohibited under the NDPS Act. The occupants of the vehicle could not produce any licence/permit for carrying these bottles. The patrol party also deemed it fit to carry out personal search of the occupants of the vehicle. As per their request, the personal search was carried out in presence of Additional Superintendent of Police. Nothing incriminating was recovered ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -3- during personal search. Seizure of 15 bottles of Codeine Phosphate led to registration of the FIR in question.
3. As per status report, during investigation, the petitioner .
statedly disclosed that he and Surender Singh had purchased 16/17 bottles from Amit Medical Store, Sailakui Sahaspur (Uttrakhand). A bottle each was consumed by the petitioner and his accomplice Surender Singh. Remaining 15 bottles were being carried by them to of one Shibu @ Savi. To the similar effect was the disclosure statedly made by Surender Singh. As per the status report, the investigating rt agency went to Sailakui Sahaspur, however, Amit Medical Store could not be located there. The shop identified by Surender Singh was carrying the board of Bhuvneshwari Medical Store. No bottle of Bolirex syrup was found in that medical store.
As per the report of State Forensic Science Laboratory, Junga, Codeine Phosphate was present in seized Bolirex cough syrup. The total weight of the seized syrup was 1.849 kg.
4. Previously also, the petitioner had preferred a bail petition bearing Cr.MP(M) Nos.1645, 1723 and 2174 of 2021 which were dismissed as withdrawn vide orders dated 27.08.2021.
17.09.2021 and 23.11.2021, respectively. The instant petition has been filed by the petitioner primarily on the ground of delay in trial.
::: Downloaded on - 13/10/2023 20:38:07 :::CIS -4-5. Learned Counsel for the petitioner submitted that the police has concocted a false story to implicate the petitioner. He has nothing to do with the offence alleged against him. The petitioner .
had not indulged either in possession or illegal sale of contraband in any manner. It was also submitted that no recovery of contraband was made from the petitioner. Reference was also made to the statements of independent witnesses i.e. PW-1 and PW-2 to contend of that these witnesses have turned hostile and have not supported the case of the prosecution. Learned Counsel further submitted that the rt petitioner was arrested in the FIR in question on 12.01.2021. He has by now completed about 2 years and 9 months in custody. The trial has been delayed. On account of delay in trial, the petitioner is entitled to be enlarged on bail as delay in trial amounts to violation of his right as enshrined under Article 21 of the Constitution of India.
It was also highlighted that co-accused Surender Singh has been enlarged on bail vide order dated 06.09.2023 passed in Cr.MP(M) No. 2179 of 2023.
Opposing the bail plea, learned Deputy Advocate General submitted that 15 bottles of Codeine Phosphate were recovered from the vehicle in which the petitioner was travelling.
The recovered contraband falls under commercial quantity notified under the NDPS Act, therefore, rigors of Section 37 of the NDPS Act ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -5- are attracted. The petitioner has not been able to satisfy the twin conditions laid down in the said section, therefore, he is not entitled for grant of bail. It was further submitted that the trial is underway.
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Out of 20 prosecution witnesses, statements of 6 witnesses have been recorded. Petitioner's criminal history is also highlighted. It was submitted that FIR No.219/2015, dated 28.03.2015 under Sections 379 & 34 IPC at Police Station Majra, District Sirmour, has been of registered against the petitioner.
6. Observations:-
rt 6(i). Since quantity of the contraband recovered in the FIR is commercial, therefore, Section 37 of the NDPS Act is attracted, which read 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 of 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.::: Downloaded on - 13/10/2023 20:38:07 :::CIS -6-
(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."
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In order to avail bail, the petitioner has to satisfy following twin conditions imposed in Section 37 of the NDPS Act:-
"(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such of offence; and
(ii) Petitioner is not likely to commit any offence while on bail."
Hon'ble Apex Court in (2020) 12 SCC 122, titled State rt of Kerala and others Versus Rajesh and others, after considering various pronouncements held that the expression 'reasonable grounds' used in Section 37 of the NDPS Act means something more than prima-facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of alleged offence.
It would be appropriate to extract relevant paras from the judgment:-
"19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, 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 the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -7- 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.
20. 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 of offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the rt grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
6(ii) Present is a case of recovery of commercial quantity of the manufacture drug/Codeine Phosphate from the vehicle driven by co-accused Surender Singh. The petitioner was also an occupant of the vehicle. 15 bottles of Codeine Phosphate were allegedly recovered by the respondent from a bag kept alongside petitioner's feet. The petitioner was arrested on 12.01.2021. The petitioner has by now almost completed about 2 years and 9 months in custody.
The respondent has given criminal history of the petitioner inasmuch as one FIR No.219/2015, dated 28.08.2015, has been registered against him under Section 379 read with Section 34 of Indian Penal Code at Police Station Majra, District Sirmour, H.P. ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -8- 6(iii) SLP (Crl.) No. 915 of 2023 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering .
incarceration for over seven years was granted bail on account of delay in trial. Hon'ble Court, inter-alia, reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and of trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay rt Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like "section 43- D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the Parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered, where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 ::: Downloaded on - 13/10/2023 20:38:07 :::CIS -9- of NDPS Act. In Mohd. Muslim's case (supra), it was held as under
with reference to expression "not guilty of such offence":-
"18. The conditions which courts have to be cognizant of .
are that 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. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counteraffidavit dated 21.02.2023 filed by the respondent-state before this court.
of prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct rt that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ::: Downloaded on - 13/10/2023 20:38:07 :::CIS
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ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions .
under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered of within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in rt complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."::: Downloaded on - 13/10/2023 20:38:07 :::CIS
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6(iv) While deciding Special Leave to Appeal (Crl.) No(s).
4169/2023 vide judgment dated 13.07.2023 (Rabi Prakash Vs. The State of Odisha), the Hon'ble Apex Court held that prolonged .
incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS of Act.
According to the respondent, prosecution has to rt examine 20 witnesses in all, out of which only 6 witnesses have been examined as on date. Statements of 14 witnesses are yet to be recorded. Looking at the pace of the trial, it is apparent that trial of the case will take long time to conclude. Taking into consideration the facts and circumstances of the case in the backdrop of law laid down in Mohammad Muslim's case, supra and the period spent by the petitioner in custody coupled with the fact that trial of the case will take long time to conclude, the petitioner, at this stage, has made out a case for his enlargement on regular bail. The co-accused Surender ingh has already been enlarged on bail.
7. In view of all the aforesaid reasons, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of ::: Downloaded on - 13/10/2023 20:38:07 :::CIS
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Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the .
following conditions:-
(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned of police station as and when called in accordance with law.
(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
rt
(iii). Petitioner will not leave India without prior permission of the Court.
(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a ::: Downloaded on - 13/10/2023 20:38:07 :::CIS
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negative factor for consideration of his future bail application, if any.
In case of violation of any of the terms & conditions of .
the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the of merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall rt decide the matter uninfluenced by any of observations made hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.
Jyotsna Rewal Dua Judge 13th October 2023 (R.Atal) ::: Downloaded on - 13/10/2023 20:38:07 :::CIS