Punjab-Haryana High Court
Jeetu vs State Of Haryana on 25 February, 2025
Neutral Citation No:=2025:PHHC:033431
CRM M-9782 of 2025 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM M-9782 of 2025
Date of Decision: 25.02.2025
Jeetu ...Petitioner
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Akshit Mehta, Advocate, for the petitioner.
Mr. Gurmeet Singh, AAG, Haryana.
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.163 dated 08.06.2023 registered under Sections 20 of the NDPS
Act (Section 29 of NDPS Act added later on) at Police Station Dhauj,
District Faridabad.
2. The FIR in the present case was registered on the basis of
the statement made by Jagdish SI and the same has been reproduced
below:-
“To, SHO, P.S Dhauj, Fairdabad, Jai Hind. Today, I SI
along with head constable Amit No. 341, Constable
Amit No. 1810, Constable Punit No. 1239 was present
at Dhauj, Faridabad in Government vehicle No.
HR51GV6546 along with Driver EHC Naresh Kumar1 of 10
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No. 373 for the purpose of crime prevention. Then the
secret informer gave a secret information to me SI that,
Jeetu S/o Mahender R/o village Kureshipur and his
partner Amit R/o village Akalgarh, District Jind do the
work of supplying Ganja in the Accent Car color white
bearing No. HR26BD4408. That both the persons, after
some time will go to the village Kureshipur by taking
the Narcotics Substance (Ganja) in their Accent car
bearing No. HR26BD4408 and if barricading is done
on Fatehpur Taga to Bijopur road then both the person
can be caught while possessing Ganja in their Accent
Car. That after conveying the information to the
co-officials, one Notice under Section 42 of NDPS Act
was prepared and Constable Amit No. 1810 was sent to
Police Station for the information and who came back
from the Police Station Dhauj to the spot after 40
minutes after registering the Nakal Rapat bearing No.
48 dated 08.06.2023, and the copy of the Nakal Rapat
bearing No. 48 dated 08.06.2023 is handed over to me.
Thereafter, I went to Fatehpur Taga to Bijopur road on
the government vehicle along co-officials and secret
informer and after barricading we started conducting
the search of the vehicles. After, 10-15 minutes, one
Accent car of white colour was coming from the side of
Bijopur and the secret informer confirmed that this is
the car. Thereafter, we discharged the secret informer
and tighten the barricading along the help of
co-officials. After seeing the police barricading, the
driver of the car started turning the car then I along
with the help of co police officials caught the driver of
the car along with his car, and the person sitting on the2 of 10
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conductor seat was caught by Constable Amit No. 1810.
When I saw the number of the car, it was found that the
car was bearing No. HR26BD4408. When I asked the
name of the caught person, then he disclosed his name
as Jeetu S/o Mahender Singh, R/o village Bajna,
District Mathura, UP and who is presently resident
village Kureshipur, PS Dhauj, Faridabad. The person
caught by constable Amit disclosed his name as Amit
S/o Jai Bhagwan R/o village Akalgarh, PS Julana,
District Jind. When I opened the boot (Dikki) of the car
then the Plastic Bags were found and the openings of
the plastics bags were tied with a rope. I handed over
separate Section 50 Notice to the each person as I was
having the suspicion that the Plastic bags are filled with
the Narcotics Substance (Ganja) and asked from them
that whether they want to get their search conducted
through from me or any Gazetted officer. Then both the
persons gave their written consent to get the search of
plastic bags to be conducted through Gazetted officer.
Then I, called the Gazette officer appointed by the DC
namely Ramesh Kumar DHO Faridabad from my
mobile No. 9999223555 on his mobile No. 9996788121
and requested him to come on the spot. Thereafter, the
duty Magistrate Ramesh Kumar came on the spot on his
private vehicle after 30-40 Minutes and disclosed his
name and designation to the caught persons and
thereafter, conducted the separate search of each two
Plastic Bags which was kept in the car and in the
Plastic bags (Katta) Ganja was found. Thereafter, I
arranged the Electronic Weighting Machine and
separately measured the weight of the Plastic Bags3 of 10
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(Katta), Then in the first plastic Bags (Katta) total
weight was found to be 18 Kg along with the weight of
Plastic Bag and the weight of Ganja in the second
Plastic Bag (Katta) was found to be 18 KG. When Duty
Magistrate Sir asked any permit or document pertaining
to the possession of the Ganja then they were unable to
produce anything. Then I sealed the recovered Plastic
Bags with the seal of JD and Duty Magistrate DHO
affixed his seal BS. Then I handed over my seal to
Constable Amit No. 1810 and DHO Sir kept his seal
with himself. The total weight of the recovered Ganja
along with the plastic bags was found to be 36 KG and
the recovered Accent car bearing No. HR26BD4408
white color, was taken into police custody by way of
memo for the purpose of evidences. Recovery memo was
separately prepared. The recovery memo was signed by
the accused as well as the witnesses. Duty Magistrate
Sir, has seen the recovered Ganja and memo. The
accused namely Jeetu and Amit abovementioned has
committed the offences under Section 20-61-85 NDPS
as they were possessing the narcotics substance Ganja
in the boot of their car bearing No. HR26BD4408. The
report was sent to Constable Puneet No. 1239 in the
Police Station. An FIR to be registered against the
accused and the second may kindly be sent, and special
report may kindly be sent through to constable to the
superior officials. The Duty Magistrate left from the
spot and I am busy on the spot. Today: Fatehapur Taga,
Bijopur Road Faridabad. SD/- Jagdish SI ENG Crime
Branch PS NIT Faridabad Dt. 08.06.2023 at 8:30
PM )”
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3. Learned counsel for the petitioner contends that the
recovery of 36 Kgs of Ganja from two bags has been planted on the
petitioner and his co-accused Amit. He further contends that even the
copies of notice under Section 50 of NDPS Act (Annexures P-2 and
P-3) would clearly show that the mandatory provisions of Section 50
of the NDPS Act were not complied by the police in the present case
and the petitioner is entitled to bail solely on this ground. Moreover,
the petitioner was arrested in the present case on 08th June, 2023 and
challan has already been presented against him. Further, the petitioner
was never involved in any other case under the NDPS Act and the
petition deserves to be allowed by this Court.
4. On the other hand, learned State counsel has vehemently
opposed the submissions made by the learned counsel for the
petitioner on the ground that it is the fourth petition under Section 439
Cr.P.C. on behalf of the petitioner and earlier three bail petitions have
been dismissed by this Court. In fact, there has been no change of
circumstances and the present petition deserves to be dismissed by
this Court.
5. I have heard learned counsel for the parties and perused
the record.
6. In the present case the police had stopped the car, in
which the petitioner alongwith co-accused Amit was traveling. The
petitioner was driving the car, whereas his co-accused Amit was
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sitting on the side seat. Two plastic bags were recovered from the
vehicle and 36 Kgs Ganja was recovered from the two bags. Even,
the recovery was made from the two bags and the provisions of
Section 50 of the NDPS Act would not come into the way in view of
the law laid down by the Hon’ble Supreme Court in the matter of
State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378. In fact, the
provisions of Section 50 of the NDPS Act would apply only in cases
of search of a person as distinguished from the search of any
premises, vehicle etc., thus, the submissions made by the learned
counsel for the petitioner are deserved to be rejected by this Court.
7. Moreover, 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.
That provision makes the offences under the Act
cognizable and non−bailable. It reads thus:−
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“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:−
“7. It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It
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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, Parliament
in its wisdom, has made effective provisions by
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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
oppose the application; and the second, is that the Court
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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“.
8. In view of the above discussion, the present petition is
ordered to be dismissed.
25.02.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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