Punjab-Haryana High Court
Anil vs State Of Punjab on 24 February, 2025
Neutral Citation No:=2025:PHHC:033481
CRM M-6478 of 2025 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM M-6478 of 2025
Date of Decision: 24.02.2025
Anil ...Petitioner
Versus
State of Punjab ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Sandeep Verma, Advocate, for the petitioner.
Mr. M.S. Bajwa, DAG, Punjab.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the instant petition under Section
439 of the Cr.P.C. with a prayer to grant a regular bail in case FIR
No.38 dated 07.07.2023 registered under Sections 21(c) and 29 of the
NDPS Act, 1985 at Police Station Bajakhana, District Faridkot.
2. Learned counsel for the petitioner contends that as per
the prosecution story, the petitioner alongwith other two co-accused,
namely, Raj Kumar and Robin were apprehended in a Fortuner car,
which was allegedly driven by the petitioner. He further contends that
alleged recovery of 400 grams of heroin was effected from the
Fortuner car without following the due process of the law and the
mandatory provisions of Section 50 of the NDPS Act were not
complied by the police and the petitioner deserves to be released on
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bail. The petitioner is in custody since 07th July 2023 and challan has
already been presented against him. The petitioner was never
involved in any other crime and the conclusion of the trial may taken
quite a long time.
3. On the other hand, learned State counsel has vehemently
opposed the submissions made by the learned counsel for the
petitioner on the ground that 400 grams of heroin was recovered from
the car of the petitioner and the said quantity falls within the purview
of “commercial quantity” and the bar contained under Section 37 of
the NDPS Act would apply to the facts of the present case.
4. I have heard learned counsel for the parties and perused
the record.
5. While considering the grant of concession of bail in the
cases involving the recovery of “commercial quantity” of contraband
from the accused, the Hon’ble Supreme Court has held in the matter
of State of Kerala etc. Vs. Rajesh Etc., 2020(1) RCR (Criminal)
818: 2020 AIR Supreme Court 721 as follows:-
18. The jurisdiction of the Court to grant bail is
circumscribed by the provisions of Section 37 of the
NDPS Act. It can be granted in case there are
reasonable grounds for believing that accused is not
guilty of such offence, and that he is not likely to commit
any offence while on bail. It is the mandate of the
legislature which is required to be followed. At this
juncture, a reference to Section 37 of the Act is apposite.
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That provision makes the offences under the Act
cognizable and non−bailable. It reads thus:−“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 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.”
(emphasis supplied)
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 NDPS
Act. In Union of India Vs. Ram Samujh and Ors.
1999(4) RCR (Criminal) 93: 1999(9) SCC 429, it has
been elaborated as under:−
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“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 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.
Reason may be 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 v. Chief Secy., Union Territory of Goa
[1989(2) RCR (Criminal) 505: [(1990) 1 SCC 95)] as
under:
24. With deep concern, we may point out that the
organized activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country 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, Parliament4 of 7
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in its wisdom, has made effective provisions by
introducing this 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 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
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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.
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
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.
22. We may further like to observe that the learned
Single Judge has failed to record a finding mandated
under Section 37 of the NDPS Act which is a sine qua
non for granting bail to the accused under the NDPS
Act“.
6. In the present case, the police had recovered 400 grams
of heroin from the Fortuner car, in which the petitioner was traveling
and was arrested on 07.07.2023. Now, the report of the chemical
examiner has been received and as per the report of the chemical
examiner, the quantity recovered from the petitioner and his
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co-accused was found to be containing the salt, which is known as
Diacetylmorphine and the quantity of the contraband is commercial in
nature. Thus, keeping in view the embargo contained under Section
37 of the NDPS Act, the petition deserves to be dismissed by this
Court.
7. Dismissed.
24.02.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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