Himachal Pradesh High Court
Nived Lal vs State Of Himachal Pradesh on 27 December, 2024
Neutral Citation No. ( 2024:HHC:16414 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2394 of 2024
Reserved on: 20.12.2024
Date of Decision: 27.12.2024
Nived Lal …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Yuyutsu Singh Thakur,
Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General with HC
Ramchander No. 443, IO PS Kullu.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested vide FIR No. 208/2023, dated 28.06.2023, registered for
the commission of an offence punishable under Section 29 of the
Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS
Act‘) at Police Station Kullu, District Kullu. The petitioner is in
judicial custody in District Jail Mandi. The police have filed the
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:16414 )
charge sheet before the learned Trial Court after the completion
of the investigation. As per the prosecution, the recovery of the
contraband was effected from the co-accused. The petitioner did
not know that the co-accused had contraband in his bag. The
police had not collected the call detail records or the banking
transaction to connect the petitioner with the co-accused. The
petitioner is the sole breadwinner of the family. He has been in
custody for more than 15 months. The charge sheet has been filed
before the Court, and no fruitful purpose would be served by
detaining the petitioner in custody. The petitioner would abide by
all the terms and conditions, which the Court may impose; hence,
the petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
28.06.2023 at Badogi Footpath. They found two persons sitting
on the water tank at about 4:30 pm. One person had kept a carry
bag on his lap, and the other person had kept his arm on the
former. HC Ram Chander enquired about the names and
addresses of those persons. They questioned the authority of HC
Ram Chander to enquire about their names and addresses. HC
Ram Chander showed his identification document and revealed
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Neutral Citation No. ( 2024:HHC:16414 )
that he was a police official. Both persons attempted to run away.
The police apprehended both persons. One person revealed his
name as Nived (the present petitioner), and the other person
revealed his name as Cijo Pee Anjit. The police checked the carry
bag in the presence of Tehal Singh and Constable Ajay Kumar and
found 1.175 kgs of charas and 58 grams of ketamine in it. The
police seized the charas and the ketamine and arrested the
petitioner and the co-accused. Charas and ketamine were sent to
FSL, and as per the result, the charas was confirmed to be an
extract of cannabis and a sample of charas, whereas ketamine
was found to be a sample of starch, which was not covered under
the NDPS Act. The police filed the charge sheet on 31.10.2023. Out
of 17 witnesses, Nine witnesses have been examined, and the
matter is listed for prosecution evidence on 27.12.2024; hence,
the status report.
3. I have heard Mr. Yuyutsu Singh Thakur, learned
counsel for the petitioner and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent/State.
4. Mr Yuyutsu Thakur, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
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Neutral Citation No. ( 2024:HHC:16414 )
falsely implicated. As per the prosecution case, the petitioner was
only sitting with the co-accused from whom the charas was
recovered. The petitioner could not know about the charas with
the co-accused. The petitioner would abide by all the terms and
conditions which the Court may impose; therefore, he prayed
that the present petition be allowed and the petitioner be released
on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the petitioner
and the co-accused were found sitting together on the water
tank. Both of them challenged the authority of HC Ram Chander
to enquire about their names and addresses, and when HC Ram
Chander revealed that he was a police official, both the accused
started running away. This shows that the petitioner was aware
of the fact that the co-accused had contraband in his possession;
otherwise, he had no occasion to run away from the spot. The
petitioner has also not given any explanation for his conduct. The
quantity of charas recovered from the possession of the co-
accused is commercial, and the rigours of Section 37 of the NDPS
Act apply to the present case. There is no evidence to satisfy the
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Neutral Citation No. ( 2024:HHC:16414 )
twin conditions laid down under Section 37 of the NDPS Act;
therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed
as under: –
“19. Courts, while granting bail, are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence
and/or witnesses, antecedents, flight risk, et al. Speaking
through Hima Kohli, J., the present coram in Ajwar v.
Waseem, 2024 SCC OnLine SC 974, apropos relevant
parameters for granting bail, observed:
“26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal
offence, the Court must consider relevant factors like the
nature of the accusations made against the accused, the
manner in which the crime is alleged to have been
committed, the gravity of the offence, the role attributed to
the accused, the criminal antecedents of the accused, the
probability of tampering of the witnesses and repeating the
offence, if the accused are released on bail, the likelihood of
the accused being unavailable in the event bail is granted,
the possibility of obstructing the proceedings and evading
the courts of justice and the overall desirability of releasing
the accused on bail. (Refer: Chaman Lal v. State of U.P.
(2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh
6
Neutral Citation No. ( 2024:HHC:16414 )Ranjan alias Pappu Yadav (supra) (2004) 7 SCC
528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286;
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC
496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC
508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12
SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020)
2 SCC 118.
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on the society resulting in such an order.
In P v. State of Madhya Pradesh (supra) (2022), 15 SCR
211 decided by a three-judge bench of this Court
[authored by one of us (Hima Kohli, J)] has spelt out the
considerations that must be weighed with the Court for
interfering in an order granting bail to an accused
under Section 439(1) of the CrPC in the following words:
“24. As can be discerned from the above
decisions, for cancelling bail once granted, the court
must consider whether any supervening circumstances
have arisen or the conduct of the accused post grant of
bail demonstrates that it is no longer conducive to a fair
trial to permit him to retain his freedom by enjoying the
concession of bail during trial [Dolat Ram v. State of
Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put
it differently, in ordinary circumstances, this Court
would be loathe to interfere with an order passed by the
court below granting bail, but if such an order is found
to be illegal or perverse or premised on material that is
irrelevant, then such an order is susceptible to scrutiny
7
Neutral Citation No. ( 2024:HHC:16414 )and interference by the appellate court.” (emphasis
supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin Amanullah,
J.), the Court, while setting aside an order of the Punjab
and Haryana High Court granting (anticipatory) bail,
discussed and reasoned:
“7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide
the grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the
relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is well
settled that, among other circumstances, the factors to
be borne in mind while considering an application for
bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed
the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
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Neutral Citation No. ( 2024:HHC:16414 )
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.’
8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC
118, this Court opined as under:
’16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of bail.
The correctness of an order granting bail is tested on the
anvil of whether there was an improper or arbitrary
exercise of discretion in the grant of bail. The test is
whether the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the anvil of
the existence of supervening circumstances or violations
of the conditions of bail by a person to whom bail has
been granted. …’
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @
Depak, 2023 INSC 761, this Court, in view of Dolat
Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira
Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of
Telangana, (2018) 16 SCC 511, held as follows:
’13. It is also required to be borne in mind that when a
prayer is made for the cancellation of the grant of bail,
cogent and overwhelming circumstances must be
present, and bail, once granted, cannot be cancelled in a
mechanical manner without considering whether any
supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram v. State of Haryana (1995) 1 SCC 349, Kashmira
Singh v. Duman Singh (1996) 4 SCC
693 and XXX v. State of Telangana (2018) 16 SCC 511.’
10. In XXX v. Union Territory of Andaman & Nicobar
Islands, 2023 INSC 767, this Court noted that the principles
9
Neutral Citation No. ( 2024:HHC:16414 )
in Prasanta Kumar Sarkar (supra) stood reiterated
in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321.
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5
SCC 1. Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 is worthy of mention in
this context, despite its partial overruling in Sushila
Aggarwal (supra). We are cognizant that liberty is not to be
interfered with easily. More so when an order of pre-arrest
bail already stands granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to be
exercised with judicial discretion. The factors illustrated by
this Court through its pronouncements are illustrative and
not exhaustive. Undoubtedly, the fate of each case turns on
its own facts and merits.” (emphasis supplied)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. The status report shows that the petitioner and co-
accused were found sitting on the water tank. HC Ram Chander
went near them and enquired about their names and addresses.
Both of them questioned his authority to enquire about their
names and addresses, and when HC Ram Chander showed his
identification document and revealed that he was a police official,
both of them attempted to run away, however, they were
apprehended by the police. The conduct of the accused of running
away after coming to know that the police official had approached
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Neutral Citation No. ( 2024:HHC:16414 )
them shows that both of them were aware of the fact that they
had something to conceal from the police. Prima facie, this
conduct shows the involvement of the petitioner in the
commission of the crime. The result of the analysis shows that
the substance recovered from the co-accused was 1.116 kgs of
charas, which is a commercial quantity, and the rigours of Section
37 of NDPS will apply to the present case.
10. Section 37 of the ND&PS Act provides that in an
offence involving commercial quantity, the Court should be
satisfied that the accused is not guilty of the commission of an
offence and is not likely to commit any offence while on bail.
Section 37 of the NDPS Act reads as follows:
“37. Offences to be cognisable 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
cognisable;
(b) no person accused of an offence punishable for
offences under section 19, section 24, or section 27A
and also for offences involving commercial quantity
shall be released on bail or 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
11
Neutral Citation No. ( 2024:HHC:16414 )are reasonable grounds for believing that he
is not guilty of such an 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.”
11. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738, and it was held that in the absence of the satisfaction that the
accused is not guilty of an offence and he is not likely to commit
an offence while on bail, he cannot be released on bail. It was
observed:
“7. Section 37 of the NDPS Act contains special provisions
with regard to the 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) offences involving commercial quantity.
8. 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.
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Neutral Citation No. ( 2024:HHC:16414 )
(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. This position was reiterated in State of Kerala Versus
Rajesh AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act. In
Union of India vs Ram Samujh and Ors., (1999) 9 SCC 429, it
has been elaborated as under: –
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits the murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or
in inflicting death-blow to a number of innocent
young victims, who are vulnerable; it causes
deleterious effects and a deadly impact on the
society; they are a hazard to the society; even if they
are released temporarily, in all probability, they
would continue their nefarious activities of
trafficking and/or dealing in intoxicants
clandestinely. The reason may be the large stake and
illegal profit involved. This Court, dealing with the
contention with regard to punishment under the
NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier vs Chief Secy.,
Union Territory of Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this country
13
Neutral Citation No. ( 2024:HHC:16414 )and illegal trafficking in such drugs and
substances have led to drug addiction among a
sizeable section of the public, particularly the
adolescents and students of both sexes and the
menace has assumed serious and alarming
proportions in the recent years. Therefore, in
order to effectively control and eradicate this
proliferating and booming devastating
menace, causing deleterious effects and deadly
impact on the society as a whole, Parliament,
in its wisdom, has made effective provisions by
introducing Act 81 of 1985 specifying
mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the person
accused of offences under the NDPS Act should not
be released on bail during trial unless the mandatory
conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing
that the accused is not guilty of such offence;
and
(ii) that he is not likely to commit any offence
while on bail are satisfied. The High Court has
not given any justifiable reason for not
abiding by the aforesaid mandate while
ordering the release of the respondent
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-economic
consequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should implement
the law in the spirit with which Parliament,
after due deliberation, has amended.”
20. 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 CrPC but is also subject
to the limitation placed by Section 37, which commences
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Neutral Citation No. ( 2024:HHC:16414 )
with the 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 satisfied that there are
reasonable grounds for believing that he is not guilty of
such an offence. If either of these two conditions is not
satisfied, the ban for granting bail operates.
21. 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 the 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 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 CrPC, or any other law for the time
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is indeed
uncalled for.”
13. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24
or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
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Neutral Citation No. ( 2024:HHC:16414 )
(ii) There must exist “reasonable grounds to
believe” that (a) the person is not guilty of such an
offence, and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person
is not guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798: (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“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 the
existence of such facts and circumstances as are
sufficient in themselves to justify the 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
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”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word “reasonable”. Reason
varies in 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 MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para
7 and Gujarat Water Supply & Sewerage
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Neutral Citation No. ( 2024:HHC:16414 )
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***
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 Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (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.”
(emphasis supplied)
23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe that
the accused has not committed an offence and whether he
is likely to commit any offence while on bail. Given the
seriousness of offences punishable under the NDPS Act
and in order to curb the menace of drug trafficking in the
country, stringent parameters for the grant of bail under
the NDPS Act have been prescribed.”
14. It was held in Union of India v. Ajay Kumar Singh, 2023
SCC OnLine SC 346 that the bail cannot be granted without
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Neutral Citation No. ( 2024:HHC:16414 )
complying with the requirement of Section 37 of the NDPS Act. It
was observed:
4. This apart, it is noticed that the High Court, in passing
the impugned order of bail, had lost sight of Section 37 of
the NDPS Act, which, inter alia, provides that no person
accused of an offence involving commercial quantity shall
be released on bail unless the twin conditions laid down
therein are satisfied, namely, (i) the public prosecutor has
been given an opportunity to oppose the bail application;
and (ii) the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any such
offence while on bail.
15. For the sake of convenience Section 37(1) is reproduced
hereinbelow:–
“37. Offences to be cognisable and nonbailable.-
(1) Notwithstanding anything contained in
the Criminal Procedure Code, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall
be cognisable;
(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.”
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Neutral Citation No. ( 2024:HHC:16414 )
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in a
commercial quantity of narcotics is liable to be released on
bail unless the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any offence
while on bail.
15. It was held in State of Meghalaya v. Lalrintluanga Sailo,
2024 SCC OnLine SC 1751 that the grant of bail without considering
Section 37 of the NDPS Act is impermissible. It was observed:
“5. There cannot be any doubt with respect to the position
that in cases involving the commercial quantity of narcotic
drugs or psychotropic substances while considering the
application of bail; the Court is bound to ensure the
satisfaction of conditions under Section 37(1)(b)(ii) of
the NDPS Act. The said provision reads thus:–
“37(1)(b)(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.”
6. While considering the cases under the NDPS Act, one
cannot be oblivious of the objects and reasons for bringing
the said enactment after repealing the then existing laws
relating to Narcotic drugs. The object and reasons given in
the acts itself reads thus:–
“An act to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the control
and regulation of operations relating to narcotic drugs and
psychotropic substances, to provide for the forfeiture of
property derived from, or used in, illicit traffic in narcotic
drugs and psychotropic substances, to implement the
provisions of the International Convention on Narcotic
19
Neutral Citation No. ( 2024:HHC:16414 )Drugs and Psychotropic Substances and for matters
connected therewith.”
In the decision in Collector of Customs, New
Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549, the three-
judge bench of this Court considered the provisions under
Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression “reasonable grounds” used
therein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that the
accused is not guilty of the alleged offence. Furthermore, it
was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)
(ii) of the NDPS Act, viz., that, firstly, there are reasonable
grounds for believing that the accused is not guilty of such
offence and, secondly, he is not likely to commit any
offence while on bail it was held therein that they are
cumulative and not alternative. Satisfaction of the
existence of those twin conditions had to be based on the
‘reasonable grounds’, as referred to above.
7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC
122, after reiterating the broad parameters laid down by
this Court to be followed while considering an application
for bail moved by an accused involved in offences under
the NDPS Act, in paragraph 18 thereof this Court held that
the scheme of Section 37 of the NDPS Act would reveal that
the exercise of power to grant bail in such cases is not only
subject to the limitations contained under Section 439 of
the Code of Criminal Procedure, but also subject to the
limitation placed by Section 37(1)(b)(ii), NDPS Act.
Further, it was held that in case one of the two conditions
thereunder is not satisfied, the ban for granting bail would
operate.
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Neutral Citation No. ( 2024:HHC:16414 )
8. Thus, the provisions under Section 37(1)(b)(ii) of
the NDPS Act and the decisions referred supra reveal the
consistent view of this Court that while considering the
application for bail made by an accused involved in an
offence under NDPS Act a liberal approach ignoring the
mandate under Section 37 of the NDPS Act is
impermissible. Recording a finding mandated under
Section 37 of the NDPS Act, which is a sine qua non for
granting bail to an accused under the NDPS Act, cannot be
avoided while passing orders on such applications.”
16. In the present case, the prosecution has collected
sufficient material to show the involvement of the petitioner
with the commission of the crime, and it cannot be said that
there is no reasonable ground to connect him with the
commission of crime. Further, there is nothing on record to
show that the petitioner is not likely to commit the same offence
in case of release on bail. Therefore, he has failed to satisfy the
twin conditions laid down under Section 37 of the NDPS Act and
is not entitled to bail.
17. It was submitted that there is a variation in the
quantity of the charas. The seizure memo (Annexure A3) shows
that 1.175 kgs of charas was recovered. The order of the learned
Magistrate shows that the quantity of charas was found to be
1.142 kilograms, whereas the result of analysis shows the
quantity of charas was 1.116 kilograms. Therefore, the integrity
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Neutral Citation No. ( 2024:HHC:16414 )
of the case property is not established. This submission cannot
be accepted at this stage. Learned Trial Court has to evaluate the
evidence to determine the integrity of the case property. The
report of analysis shows that the seals were intact, and this
prima facie shows the integrity of the case property. Section 52A
of the NDPS Act provides that the certificate issued by the
Magistrate under Section 52A has to be considered primary
evidence of the Narcotics; therefore, the Court has to consider
the quantity certified by the Magistrate as the quantity in the
present case. Hence, the prosecution case cannot be doubted due
to the variation in the quantity. It will be open to the prosecution
to explain the variation while leading the evidence.
18. In view of the above, the present petition fails, and
the same is dismissed.
19. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever,
on the merits of the case.
(Rakesh Kainthla)
Judge
27th December, 2024
(saurav pathania)