Chattisgarh High Court

Rahul Pandey vs State Of Chhattisgarh on 24 February, 2023

                                      Order Reserved on 04.01.2023
                                  Order Pronounced on 24.02.2023
                                                                NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                          MCRC No. 2206 of 2022
     Rahul Pandey S/o Rajeshwar Pandey Aged About 29 Years R/o
      Kanpur Road, D.S. 82 Sector D, Lda Basti Ada Colony, Lucknow
      Poolice Station Ishanagar, District - Lucknow (U.P.) Presently
      Residing At Mangla Chowk, Dindayal Colony Chhattisgarh.
                                                          ---- Applicant
                                Versus
     State Of Chhattisgarh Through - Police Station Kondagaon,
      District - Kondagaon, Chhattisgarh.      ---- Respondent


For the Applicant/s :-    Mr. Swajeet Singh Ubeja, Advocate
For the State       :-    Mr. Kashif Shakeel, Dy. AG
_______________________________________________________________

                                CAV Order

          Hon'ble Shri Justice Sachin Singh Rajput

      The applicant has preferred this Fourth bail application under

Section 439 of the Cr.P.C. for grant of regular bail as he is in custody

in connection with crime No. 304 of 2021 registered in Police Station

Kondagaon, District Kondagaon, CG for ofence punishable under

Sections 20(b)(ii)(c) of NDPS Act. The frst bail application was

dismissed on merits vide order dated 24.09.2021 passed in MCRC

No. 6828 of 2021, the second bail application was dismissed as

withdrawn with liberty to revive the same after examination of

search and seizure witnesses vide order dated 17.12.2021 passed in

MCRC No. 9340 of 2021 and the third bail application was dismissed

as withdrawn with the jail authorities are directed to provide the

facility for medical examination of the applicant regarding his health

complaints in any private hospital available in the District vide order

dated 25.02.2022 passed in MCRC No. 1697 of 2022.
 2.     Case of the prosecution in nutshell is that on 21.08.2021 the

present applicant was intercepted by the police and during search

and seizure the applicant was found in possession of 45 kg of

contraband (Ganja). Thereafter, the ofence was registered against

the present applicant.

3.     Learned counsel for the applicant submits that the applicant

has not committed any ofence and has been falsely implicated in

the case. He submits that the mandatory compliance of provisions

of NDPS Act has not been done therefore, the entire prosecution

case is vitiated. He further submits that the applicant is sufering

from serious ailments, in view of the above, this Court has granted

temporary bail to the applicant which has been further extended

from time to time. However, he further submits that looking to his

medical conditions his right under Article 21 of Constitution of India

may be protected. Therefore, looking to the medical conditions the

application may be considered. In support of his submission, he

relied upon judgment of the Supreme Court reported in 1992 SCC

OnLine All 332 (Prem Narain Sharas Vs. State of UP) and

2022    SCC    OnLine    Delhi   3086   (Devki   Nndan    Garg    Vs.

Directorate of Enforcement) and 2020 SCC OnLine HP 2826

(Jagdish Lal Vs. State of Himachal Pradesh).

4.     State counsel opposes the bail application and submits that

the frst application was decided on merits considering all the

submission made by the learned counsel for the parties. Even

otherwise, this Court had granted temporary bail which was

extended from time to time. But it appears that the applicant has

misused the liberty granted to him and he did not surrender before

the trial Court. Therefore, the bail application of the applicant may

be rejected.    In support of his arguments, he relies upon the
 judgment of Hon'ble Supreme Court in case of Narcotics Control

Bureau Vs. Mohit Aggarwal 2022 SCC OnLine SC 891 and

State of Kerala Vs. Rajesh and others reported in (2020) 12

SCC 122.

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

submissions and also perused the case diary.

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

that the frst bail application was dismissed on merits vide order

dated 24.09.2021 passed in MCRC No. 6828 of 2021, therefore, two

bail   applications were dismissed by this Court with           certain

directions. During the pendency of bail application, on 11.04.2022,

this Court looking to the health conditions of the applicant was

granted temporary bail for a period of two months. Thereafter on

17.06.2022 the earlier order dated 11.04.2022 granting temporary

bail was further extended for a period of two months. Then, on

18.08.2022 again temporary bail was extended for a period of two

months and the applicant was directed to surrender before the trial

Court on 18.10.2022. On 18.10.2022 again this Court extended

temporary bail for a period of one month and this Court directed the

applicant to positively surrender before the trial Court on or before

18th of November, 2022 and further on 21.11.2022 extension of

temporary bail was granted to the applicant with a direction to

positively surrender before the trial Court on or before 12 th of

December, 2022. On 12.12.2022 learned senior counsel appearing

for the applicant submitted that the applicant could not surrender

before the trial Court and prayed for two days time and the case

was listed on 15.12.2022. On 15.12.2022 counsel for the applicant

submitted that the applicant has been discharged from the hospital

and he would surrender before the trial Court in a day or two.
 Further on 20.12.2022 counsel for the applicant submitted that the

applicant would surrender before the trial Court in a day or two.

Therefore, the submission of counsel for the applicant is basically

rested upon the medical condition of the present applicant in order

to substantiate his submission, he has appended some documents

with regard to his medical conditions.

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

counsel for the applicant and State counsel relevant clauses of

Sections of NDPS Act is reproduced herein below:-

                                    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.

8. 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."

9. 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.

10. It is case in hand, the applicant was extended the beneft of

interim bail from 11.04.2022 and subsequent extension thereafter.

Despite of temporary bail, as per the State counsel, whether he has

surrendered or not is not clear. Prima facie in the opinion of this

Court, it appears that for a considerable period of time, temporary

bail was extended to the present applicant and as submitted by the

learned counsel for the applicant on 15.12.2022 the applicant was

discharged from the hospital but it appears that he did not surrender

before the trial Court. The authorities cited by the learned counsel

for the applicant, with due respect, does not ft to the present case

as in the present case, the applicant was extended beneft of

temporary bail and despite being liberty granted, it appears that he

misused the liberty. Therefore, taking into account the above

judgments of the Supreme Court and prevailing facts and

circumstances of the case, I do not fnd any good ground to allow

this application, therefore, the application is dismissed. However, if

the applicant has not surrendered as yet, learned trial Court will take

appropriate legal action against him. It is also expected that the

State/jail authorities shall provide adequate medical treatment to

the applicant as directed by this Court in MCRC No. 1697 of 2022

vide order dated 25.02.2022.