Punjab-Haryana High Court
Nicholas Chidebere Paul vs State Of Haryana on 4 March, 2025
Neutral Citation No:=2025:PHHC:033296
CRM M-58355 of 2024 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM M-58355 of 2024 (O&M)
Date of Decision: 04.03.2025
Nicholas Chidebere Paul ...Petitioner
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Mohd. Shahid Hussain, Advocate, for the petitioner.
Mr. Rajinder Kumar Banku, DAG, Haryana.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the present petition under Section
483 of the BNSS with a prayer to grant regular bail to him in case FIR
No.109 dated 30.03.2020 (Annexure P-1) registered under Sections
21-C, 29-61-85 of NDPS Act and Sections 188, 269, 270 and 419 of
IPC and Sections 13 and 14 of Foreigner Act No. 31, 1946 at Police
Station Sadar Tauru, District Nuh.
2. The FIR in the present case was registered on the basis of
the statement of Katar Singh SI, CIA Tauru and the relevant extract of
the FIR has been reproduced below:-
“To, the SHO Police Station Tauru, Jai Hind, today I SI
along with my companion collogues HC Satish Kumar
No. 127/Nuh, Constable Shri Krishna No. 1168/Jind,
Constable Aman 327/Nuh, Constable Rakesh Kumar1 of 11
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995/Nuh, Constable Ashok 3/494 in a government
vehicle HR-27-K-4164 along with driver Constable
Neeraj 403/Nuh were present at KMP toll crossing for
law and order duty lockdown Corona virus, when an
informer informed me that Rafiq son of Naseer and
Mubarik son of Aneesh, residents of Shikarpur, who
consume and sell Heroin (Chitta), today both of them
will buy Heroin from Palwal on motorcycle No. HR 96
7666 bearing color black brand Splender Plus and will
go towards village Shikarpur through the unpaved road
alongside KMP. If blockade is made on this rough road,
the accused can be caught along with Heroin (narcotic
substance). Believing the information to be reliable, I, SI
informed his colleagues about the tip-off and prepared a
raiding party and started a blockade on the rough road
along the KMP near village Dhulawat. Head Constable
Satish Kumar is accompanied by a Police party with his
laptop and portable printer. An attempt was made to get
public witnesses at the blockade site, but due to
lockdown, public witness was available. I SI prepared a
written notice under section 42 NDPS Act separately and
informed Tehsildar Sahab Tauru Singh Shri Manmohan
on telephone No. 9999009958 from my personal phone
9466767518 about the situation and asked for coming
the spot. After a blockade about 10 minutes, two young
men were seen coming on a motorcycle from the Palwal
side on the rough road along the KMP as per the
description. When I tried to stop them with the help of
my colleagues, both the accused took the motorcycle to
the side and speed away. But after 50 meters, due to the
high speed and the rough road, both the accused slipped2 of 11
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along with the motorcycle and fell on the right side of
rough road and got minor injuries. They were controlled
with the help of fellow colleagues and when asked for
their names and addresses, the motorcyclist told his
name as Rafiq son of Naseer and the person sitting
behind told his name as Mubarik son of Aneesh,
residents of Shikarpur. I gave notices under section 50 of
NDPS Act. On the notices, both of the accused agreed to
get themselves searched in the presence of a Civil
Gazetted Officer. At the same time, Mr. Manmohan Singh
Tehsildar Tauru along with the staff arrived at the spot in
a government vehicle. He was informed about the
situation. Who served notice under section 42 and 50 of
NDPS Act. After getting a separate body search done by
me, the Tehsildar Sahab instructed me to search the two
accused separately. Thereafter, first of all, I searched the
motorcyclist Rafiq son Naseer and recovered a cream of
colored substance wrapped in blue polythene from the
right pocket of his pant. As per my experience, when it
was packed, it was found to be Heroin (Chitta). When it
was weighed without the polythene with the electric
weighing scale, the total quantity of Heroin was 10.080
grams. After putting it in the same polythene, a separate
bag was prepared from the plastic box and the bag was
stamped with the stamp SK/3. Thereafter, I ask the name
and address of the person sitting behind, who told his
name as Mubarik son of Aneesh. When he was searched,
a cream colored substance wrapped in white polythene
was recovered from the front pocket of his shirt. On
checking it, it was packed, it was found to be Heroin
(Chitta) as per my experience. When it was weighed3 of 11
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without the polythene with the electric weighing scale, it
was found to be 10.850 grams of Heroin. After putting it
in the same polythene, a separate bag was prepared from
the plastic box and the bag was stamped with the stamp
SK/3. After use, the seal be kept and same was handed
over to me SI Satish Kumar No 127. The Tehsildar also
stamped both the bags and sample seals with his seal as
RK/1 and photography was done at the spot by constable
Aman 327/Nuh with his mobile. Both the bags along with
sample seal and recovered motorcycle Splender Plus
No. HR-96-7666 were taken into police possession. The
witnesses and the accused put their two signatures on
bundles and also verified by the Tehsildar, Tauru.
Tehsildar along with his staff, gave necessary
instructions to me and left the spot in the government
vehicle. The accused Rafiq son of Naseer resident
Shikarpur having in his possession 10.080 grams Heroin
resident and Mubarik of son of Shikarpur having Aneesh
in his possession 10.850 grams Heroin, total 20.930
grams of Heroin, have committed the crime under
section 21 C-61-85 of NDPS Act. On which after writing
the report, Constable Rakesh Kumar is being sent to
police station to register the case. Later, the case number
should be informed through the slip or another
investigating officer should be sent to the scene of
incident. I along with my colleagues, accused, bundles of
the case along with government vehicle, busy in
investigation of the case. Today, at rough road along
KMP in revenue estate of village Dhulawat. Sd/- Katar
Singh SI CIA Tauru dated 30.03.2020 07:15 PM..”
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3. Learned counsel for the petitioner contends that the
petitioner, who is a Nigerian, has been falsely involved in the present
case by the local police. In fact, the petitioner was not related to the
other accused in any manner and general and vague allegations have
been leveled against him. He further contends that initially the police
has arrested Rafiq and Mubarik, co-accused and the names of the
petitioner and the other accused were disclosed by them. Still further,
even no independent witness was associated by the police at the time
of effecting the recovery from the petitioner. Still further, the
petitioner was arrested in the present case on 03.04.2020 and is in
custody since then. Since, the petitioner is in custody for a longer
period and the trial has not concluded, he may be ordered to be
released on bail in the present case.
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 initially the police had apprehended
Rafiq and Mubarik, co-accused, from whose possession, a huge
quantity of heroin was recovered. During their custody, both the
co-accused suffered their respective disclosure statements, which led
to the arrest of Sonu @ Lokesh, co-accused. Sonu @ Lokesh
disclosed that he had purchased the contraband from the present
petitioner. Consequently, the police raided the petitioner and another
accused, namely, AC Henary and Emmuel, who were found sitting on
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a Scooty bearing registration No.DL-95BG-6926 alongwith hand
bags. When the search was conducted, 427 grams of Heroin was
recovered from them, which is commercial in quantity. Consequently,
the embargo of Section 37 of the NDPS Act would apply and the
petition deserves to be dismissed by this Court.
5. I have heard learned counsel for the parties and perused
the record.
6. From the evidence acquired from the course of
investigation, it is apparent that the petitioner and his co-accused were
the suppliers of heroin and even after their arrest, 427 grams of heroin
was recovered from the petitioner and his co-accused, which is
commercial quantity. Even, the learned State counsel is correct in
making a submission that the provisions contained in Section 37 of
the NDPS Act would apply and bail cannot be granted unless both the
conditions provided under Section 37 of the NDPS Act are satisfied.
Moreover, it has also been found during the investigation that the
petitioner and his co-accused were running a drug racket in this part
of the State and no leniency can be shown towards them. Moreover,
the prosecution has already examined 17 witnesses and the trial is
stated to be at the fag end.
7. Still further, the Hon’ble Supreme Court of India 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:-
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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:−
“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.”
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(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
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
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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 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
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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 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“.
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8. In view of the above discussion, the present petition is
ordered to be dismissed.
9. All pending applications, if any, are disposed off,
accordingly.
04.03.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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