Chattisgarh High Court

Sonu Patel vs State Of Chhattisgarh on 4 April, 2022

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                                                                        NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                                                  Reserved on 29-03-2022
                                               Pronounced on 04-04-2022


                           MCRC No. 1098 of 2022
    Sonu Patel S/o Ramkishore Patel Aged About 25 Years R/o Village
     Semra, Police Station- Jai Singh Nagar, District- Shahdol Madhya
     Pradesh.
                                                               ---- Applicant
                                   Versus
    State Of Chhattisgarh Through Station House Officer Police Station-
     Abhanpur, District Raipur Chhattisgarh.
                                                          ---- Non-applicant

For Applicant      :       Ms. Fouzia Mirza, Sr. Advocate with Shri Rahim
                           Ubwani, Advocate
For State          :       Shri Ravi Maheshwari, Panel Lawyer


                       Hon'ble Shri Justice Narendra Kumar Vyas
                               C.A.V. ORDER

   1.

This is the first bail application under Section 439 of the Cr.P.C. filed by the applicant for grant of regular bail as he has been arrested in connection with crime No. 336/2016 registered at Police Station - Abhanpur, Distt - Raipur (C.G.) for the offence punishable under Section 20(B)(II)(C) of the Narcotic Drugs and Psychotropic Substances Act.

2. Case of the prosecution, in brief is that on 27.11.2016 the police department received a secret information that two persons are carrying cannabis (Ganja) in TATA Zest No. MP 18 C 7877 and coming from Orissa to Gariyaband Rajim Nawapara. On the basis of the said information the police department barricaded at village Jamgaon where the police department found the said vehicle, thereafter, a search was conducted on the vehicle and 134.54 Kg Ganja was seized. During the investigation, the statement of the vehicle owner was recorded and on the basis of the statement, the present applicant was arrested for alleged commission of offence.

3. Learned Senior Counsel for the applicant would submit that the

applicant has been arrested merely on the basis of statement given by the vehicle owner namely Dayaram that he has given the vehicle to Mahendra Patel @ Ballu and the present applicant on monthly rent of Rs. 20,000/-, but the owner of the vehicle has not produced any document with regard to giving the vehicle on rent. The mandatory provisions of the NDPS Act while conducting the investigation have not been followed. She would further submit that applicant is in jail since 27.08.2019 and conclusion of trial is likely to take some time for disposal, therefore, the applicant may be released on bail.

4. On the other hand learned counsel for the State opposes the bail application and would submit that the present applicant is also involved in the commission of the offence under Section 20-B of the NDPS Act which is registered as Crime No. 146/2017 at Police Station Shirpur District Shahdol (M.P.), therefore, his involvement in the offence cannot be ruled out, as such, prays for rejection of the bail application.

5. I have heard learned counsel for the parties and perused the case diary.

6. From the perusal of case diary, it is quite vivid that on the secret information, police conducted raid and the vehicle was seized near Jamgaon Khar canal near Jamgaon Police Station, Abhanpur which was left deserted.

7. Learned Senior Counsel for the applicant would submit that no one has seen that the applicant was driving the vehicle, the vehicle has been seized from open place.

8. This Court cannot lose sight of the fact that the owner of the vehicle has given statement before the police that he has given the vehicle on rent, of course, its' authenticity and correctness is subject to trial. Even the owner of the vehicle Dayaram has filed an application under Section 457 of the Cr.P.C. for release of vehicle on Supurdnama, wherein, he has submitted an affidavit in which he has stated that vehicle has been given on monthly rent of Rs. 20,000/- on 05.10.2016 to co-accused Mahendra Patel @ Ballu, as such, there is a reason to believe the involvement of the applicant in the commission of offence. From the diary it is quite vivid that 134.54 Kg of Ganza has been seized from the vehicle, which is commercial

quantity, as such, as per the provisions of Section 37 of the NDPS Act it is incumbent on part of the applicant to prima facie demonstrate that there was no reason to disbelieve involvement of applicant in the commission of crime. From the perusal of the diary it is also reflected that earlier also the applicant was involved in commission of offence under Section 20-B of the NDPS Act, as such, there is sufficient material against the applicant not to enlarge him on bail.

9. Section 37 of the NDPS Act has come up for consideration before the Hon'ble Supreme Court in case of Union of India vs. Md. Nawaz Khan 1 wherein the Hon'ble Supreme Court while examining Section 37 of the NDPS Act held that it regulate the grant of bail in cases involving offence under Section 37(1)(b)(ii) of the NDPS Act, limitation for grant of bail in offence punishable under Sections 19, 24 and 27 of the NDPS Act and also offence involving commercial quantities. Relevant paragraphs are extracted below:- "20. Section 37 of the NDPS Act regulates the grant of bail in cases involving offences under the NDPS Act. Section 37 reads as follows:

"(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.

(2021) 10 SCC 100

21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(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 (supra), held that:

"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 existence of such facts and circumstances as are sufficient in themselves to justify 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. ... In 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."

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. [(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."

10. In the light of the judgment laid down by the Hon'ble Supreme Court and considering the above stated facts of the case prima facie involvement of the applicant in the commission of offence is reflected, therefore, I am not inclined to entertain this bail application. Accordingly the bail application deserves to be and is hereby dismissed.