Anurag Singh vs State Of Chhattisgarh
2023 Latest Caselaw 1069 Chatt

                                         Order Reserved on 13.02.2023
                                     Order Pronounced on 20.02.2023
                                                                    NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                             MCRC No. 9778 of 2022
     1. Anurag Singh S/o Shri Mahendra Thakur Aged About 29 Years
        R/o Village And Post- Lodiyari, Police Station- Khiri, Tahsil-
        Koraon, District : Allahabad, Uttar Pradesh
     2. Shekhar Singh S/o Shri Vijay Bahadur Singh Aged About 29
        Years R/o Village And Post- Lodiyari, Police Station- Khiri, Tahsil-
        Koraon, District : Allahabad, Uttar Pradesh
     3. Maqsood Khan S/o Shri Abbas Khan Aged About 36 Years R/o
        Village And Post- Lodiyari, Police Station- Khiri, Tahsil- Koraon,
        District : Allahabad, Uttar Pradesh                ---- Applicants
                                  Versus
      State Of Chhattisgarh Through Police Station Nagarnaar, District
       : Bastar(Jagdalpur), Chhattisgarh            ---- Respondent


For the Applicant/s :-       Ms. Anju Ahuja along with Mr. Palash Rajani,
                             Advocates
For the State         :-     Mr. Kunal Das, PL
_______________________________________________________________

                                  CAV Order

            Hon'ble Shri Justice Sachin Singh Rajput

        The applicants have preferred this First bail application under

Section 439 of the Cr.P.C. for grant of regular bail as they are in

custody in connection with crime No. 179 of 2022 registered in

Police Station Nagarnaar, District Bastar, CG for ofence punishable

under Sections 20(b)(ii)(c) of NDPS Act.

2.      Case of the prosecution in nutshell is that the applicants were

found in possession of 30 kg of contraband cannabis (Ganja).

Thereafter,     the   ofence   was    registered   against   the   present

applicants.

3.      Learned counsel for the applicant submits that the applicants

have not committed any ofence and have been falsely implicated in

the case. She further submits that allegedly 30 kg of contraband
 (Ganja) in 10 packets were recovered from the boot space (Dicky) of

the car. It is alleged that three accused persons were traveling in the

car and the applicants are not the owner of the car. She further

submits that the mandatory compliance of provisions of NDPS Act

has not been done therefore, the entire prosecution case is vitiated.

She submits that two witnesses namely Mahesh Patel and Jugal

Kishore patel are the star witnesses of the entire prosecution case.

They are also witnesses of Jamatalashi of the police ofcial and

themselves also. Therefore, it cannot be said that the said

contraband were recovered from the exclusive possession of the

present applicants. She further submits that according to the

standing order 1/89, from each packets the sample has to be drawn

thereafter it has to be sent to the FSL. But in the case in hand the

entire packets were mixed together thereafter two samples of 50-50

grams were drawn. Therefore, mandatory provisions of standings

orders No. 1/89 has been violated. She submits that there is

variation in the contraband recovered during search and seizure and

at the time of inventory of the same. She further submits that

investigation is complete and charge-sheet has already been fled

and they are in jail since 20.09.2022. She relied upon an order of

this Court in CRA No. 1241 of 2021 (Rakesh Umar Vaishya and

others Vs. State of Chhattisgarh) in which the application for

suspension of sentence and grant of bail was allowed of three

accused persons on the ground that mandatory compliance of

provisions of standing order No. 1/89 has not been done. Therefore,

the application may be allowed and applicants may be released on

bail.

4.      State counsel opposes the bail application and submits that

the commercial quantity of contraband cannabis (Ganja) was seized
 in the joint possession of the applicants from the car in which the

applicants were traveling. Therefore, the provision of Section 37 of

NDPS would come into play and the applicants are not entitled for

grant of bail. He further submits that according to under Section 54

of the NDPS Act, presumption is always against the accused persons

for commission of ofence under NDPS Act and there is no

presumption of innocence in favour of the present applicants.

5.    Heard the learned counsel for the parties, considered their rival

submissions and also perused the case diary.

6.    In order to appreciate the arguments advanced by the learned

counsel for the applicant and State counsel relevant clauses of

Standing Order No. 1 of 1989 and Sections of NDPS Act is reproduced

herein below:-

                        Standing Order No. 1 of 1989


      "2.1 All drugs shall be classified, carefully, weighed and sampled on
      the spot of seizure.

      2.2 All the packages/containers shall be numbered and kept in lots for
      sampling. Samples from the narcotic drugs and psychotropic
      substances seized, shall be drawn on the spot of recovery, in duplicate,
      in the presence of search witnesses (Panchas) and the persons from
      whose possession the drug is recovered and a mention to this effect
      should invariably be made in the panchnama drawn on the spot.

      2.3 The quantity to be drawn in each sample for chemical test shall not
      be less than 5 grams in respect of all narcotic drugs and psychotropic
      substances save in the cases of opium, ganja and charas (hashish)
      were a quantity of 24 grams in each case is required for chemical test.
      The same quantities shall be taken for the duplicate sample also. The
      seized drugs in the packages/containers shall be well mixed to make it
      homogeneous and representative before the sample (in duplicate) is
      drawn.

      2.4 In the case of seizure of a single package/container, one sample in
      duplicate shall be drawn. Normally, it is advisable to draw one sample
      (in duplicate) from each package/container in case of seizure of more
      than one package/container.

      2.5 However, when the packages/containers seized together are of
      identical size and weight, bearing identical markings and the contents
      of each package given identical results on colour test by the drug
      identification kit, conclusively indicating that the packages are
      identical in all respects the packages/container may be carefully
 bunched in lots of 10 package/containers except in the case of ganja
and hashish (charas), where it may be bunched in lots of, 40 such
packages/containers. For each such lot of packages/containers, one
sample (in duplicate) may be drawn.

2.6 Where after making such lots, in the case of hashish and ganja, less
than 20 packages/containers remain, and in the case of other drugs,
less than 5 packages/containers remain, no bunching would be
necessary and no samples need be drawn.

2.7 If such remainder is 5 or more in the case of other drugs and
substances and 20 or more in the case of ganja and hashish, one more
sample (in duplicate) may be drawn for such remainder
package/container.

2.8 While drawing one sample (in duplicate) from a particular lot, it
must be ensured that representative sample the in equal quantity is
taken from each package/container of that lot and mixed together to
make a composite whole from which the samples are drawn for that
lot."

2.9. The sample in duplicate should be kept in heat-sealed plastic bags
as it is convenient and safe. The plastic bag container should be kept in
a paper envelope which may be sealed properly. Such sealed envelope
may be marked as original and duplicate. Both the envelopes should
also bear the No. of the package(s)/container(s) from which the sample
has been drawn. The duplicate envelope containing the sample will
also have a reference of the test memo. The seals should be legible.
This envelope along with test memos should be kept in another
envelope which should also be sealed and marked "Secret-Drug
sample/Test memo", to be sent to the chemical laboratory concerned.

                               NDPS Act

35. Presumption of culpable mental state.-- (1) In any prosecution for
an offence under this Act which requires a culpable mental state of the
accused, the court shall presume the existence of such mental state but
it shall be a defence for the accused to prove the fact that he had no
such mental state with respect to the act charged as an offence in that
prosecution.

Explanation.--In this section "culpable mental state" includes
intention motive, knowledge of a fact and belief in, or reason to
believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only
when the court believes it to exist beyond a reasonable doubt and not
merely when its existence is established by a preponderance of
probability.

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.

      54. Presumption from possession of illicit articles.-- In trials under
      this Act, it may be presumed, unless and until the contrary is proved,
      that the accused has committed an offence under this Act in respect of
      --

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.

7. Considering the facts and circumstances of the case, it appears

that 10 packets of total 30 kg of contraband cannabis Ganja were

recovered from the boot space (Dicky) of the car in which the present

applicants were traveling and weighing panchnama were also

prepared. From the perusal of the case diary prima facie Sections 42

and 50 of NDPS Act appears to have been complied with. The

Hon'ble Supreme Court in the case of State of Kerala Vs. Rajesh

and others reported in (2020) 12 SCC 122 held as under:-

"19. 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 nonobstante 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 ofence under the Act, unless twin conditions are satisfed. The frst condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfed that there are reasonable grounds for believing that he is not guilty of such ofence. If either of these two conditions is not satisfed, the ban for granting bail operates.

20. 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 ofence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufcient in themselves to justify satisfaction that the accused is not guilty of the alleged ofence. 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."

8. Likewise, In a recent judgment in the case of Narcotics Control Bureau Vs. Mohit Aggarwal 2022, SCC OnLine SC 891 held as under:-

12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira"5, a decision rendered by a Three Judges Bench of this Court, it has been held thus:--

"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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."

[emphasis added]

13. The expression "reasonable ground" came up for discussion in "State of Kerala v. Rajesh"6 and this Court has observed as below: "20. 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."

[emphasis added]

14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

9. This Court while deciding the reported judgment in MCRC No.

7535 of 2022 in paragraph No. 11 held as under:-

"11. Section 37 of NDPS Act prescribed twin conditions in grant of bail. First is that "court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence" and the second condition is that he is not likely to commit any offence while on bail. In case of Noor Aga (Supra) held that guidelines issued should be substantially complied with. Clause 2.2 of Standing Orders 1 of 1989 prescribes that normally, it is advisable to draw one sample (in duplicate) from each package/ container in case of seizure of more than one package/container. Clause 2.5 envisages that in the case of ganja and hashish (charas), where it may be bunched in lots of, 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. After hearing the parties at length and also giving thoughtful consideration on the provisions of law and authority cited at the bar at this stage of considering an application for grant of bail this court is not persuaded to give any positive finding with regard violation of mandatory provisions of Standing Order No.1 of 1989. This can only be tested at the time trial after leading the evidence in this regard. Even assuming for sake of argument the applicants have overcome the first of twin condition prescribed in Section 37 of NDPS Act, they failed in the second condition. The applicants are residents of District - Muzaffar Nagar, Uttar Pradesh. Applicant Gaurav Rathi is having 6 criminal antecedents, co-accused Rakesh Kumar has 40 criminal antecedents including serious offences of Indian Penal Code, 1860 as reflected in the case diary. All the accused persons were traveling in the car and contraband (ganja) was seized from the boot space (dicky) and back seat of the car. Section 54 of NDPS Act also envisages that "In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act." This Court is not persuaded to believe that the presumption is rebutted at this stage which can only be done during the course of trial."

10. Taking clue from the above judgments at this stage, the

submission advance by the learned counsel for the applicant has not

persuaded this Court to come a conclusion that the applicants have

not committed the crime and they will not commit the crime in

future. Looking to the quantity of contraband seized, in the opinion

of this court applicants have not been able to cross the hurdle of

Section 37 of the NDPS Act. Hence, no case is made out for grant of

bail therefore, the application is dismissed at this stage.

Sd/-

(Sachin Singh Rajput) Judge PAWAN