Mohan Singh vs State
2011 Latest Caselaw 4527 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     BAIL APPLN.991/2011

                                      Date of Decision : 15.09.2011

MOHAN SINGH                                          ...... Petitioner
                                Through:   G.S. Kaura & Mr. Tarun
                                           Shanker, Advocates

                                 Versus

STATE                                                ....Respondent
                                Through:   Mr. Naveen Sharma, APP


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                  NO
2.    To be referred to the Reporter or not ?       NO
3.    Whether the judgment should be reported
      in the Digest ?                               NO

V.K. SHALI, J. (oral)


1.    This a petition under section 439 CrPC for grant of regular

bail in respect of FIR no. 149/2010, under section 18/25/29 of the

NDPS Act, registered by PS Crime Branch, Rohini, Delhi in respect

of which trial is pending in the court of Sh. V.K. Bansal, learned

Special Judge, NDPS, Rohini Court, Delhi.
BAIL APPLN.991/2011                                  Page 1 of 6
 2.    Briefly stated, the facts of the case are that on 10.11.2010 a

secret information was received by SIT, Crime Branch that two

persons namely Mohan Kumar i.e the Petitioner (He has given his

name as Mohan Singh) & Ravinder Kumar who are resident of

Bhiwani ( Haryana) are bringing opium from Nimich (MP) &

supplying it in Delhi & Punjab. On the basis of the said

information, these persons were apprehended from near Bhalaswa

Chowk, Delhi in a Tata Indigo Car. Petitioner, Mohan Singh was

driving the said car and on search of the vehicle 25kgs of opium

was recovered which was concealed in an aluminum container kept

in a katta.     This katta was kept in between the legs of the co-

accused Ravinder.       As per the FSL report, the sample was

confirmed as opium.

3.    Learned counsel for the petitioner has submitted that the

petitioner is in custody since 10.11.2010 and that too when he was

only driving the said vehicle and no recovery has been made from

his possession. Learned counsel has further stated that none of the

mandatory provisions of NDPS Act have been complied with and



BAIL APPLN.991/2011                                 Page 2 of 6
 provisions of section 50 of the NDPS Act have been clearly violated

and therefore the petitioner deserves the concession of regular bail.

4.    Learned APP has opposed the application of the petitioner for

grant of bail. The learned APP has stated that section 50 of the

NDPS Act has been duly complied with in as much as the petitioner

and the co accused were informed about their legal right to get

their search to be conducted by a Magistrarte or Gazetted officer

and in this regard a notice under section 50 of the NDPS Act was

served on them but they had declined the same and gave a written

reply to the effect.

5.    I have heard the learned counsel appearing for the respective

parties and also perused the record.

6.    At the outset it is pertinent to note that from the language of

Section 37 of the NDPS Act it is clear that bail in cases of offences

under NDPS Act should not be granted as a general rule unless the

court is satisfied that there are reasonable grounds for believing

that the accused is not guilty of an offence under the Act and he is

not likely to commit any offence while on bail. Section 37 of the

NDPS Act Lays down as under:-
BAIL APPLN.991/2011                                  Page 3 of 6
               "37. Offence 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 believisuch offence and that
          he is not likely to commit any offence 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."


7.    The Apex Court in N.C.B Vs Kishan Lal & Ors., AIR 1991 SC

558 has held that Section 37of NDPS Act Starts with a non-

obstante clause stating that notwithstanding anything contained in

the Code of Criminal Procedure, 1973 no person accused of an

offence prescribed therein shall be released on bail unless the

conditions contained therein were satisfied. The Narcotic Drugs &

Psychotropic Substances Act is a special enactment and as already
BAIL APPLN.991/2011                                   Page 4 of 6
 noted it was enacted with a view to make stringent provisions for

the control and regulation of the offences relating to narcotic drugs

and psycho-tropic substances. That being the underlying object the

High Court's powers to grant bail under Section 439 Cr. PC is

subject to the limitation mentioned under Section 37 of Narcotic

Drugs & Psychotropic Substances Act. The non-obstante clause

with which the Section starts should be given its due meaning and

clearly it is intended to restrict the powers to grant bail.

8.    So far as the contention of the learned counsel for the

petitioner that section 50 of the NDPS Act has not been complied

with, is concerned, I am of the view that notice was served on the

petitioner under section 50 and he was made aware of his right,

moreover at the stage of granting bail, this court cannot go into the

merits of the case which has to be considered by the trial court in

the trial. Further, the contention of the learned counsel for the

petitioner that no public witness was associated is of no relevance

at this stage when charges have been framed and five witnesses

have been examined. This is a plea which goes into the merits of



BAIL APPLN.991/2011                                     Page 5 of 6
 the case which the petitioner can urge at the time of the final

disposal of the case.

9.    It is also pertinent to note that petitioner had also made an

application for grant of bail before the learned Additional Sessions

Judge which was dismissed vide order dated 8.06.2011 after taking

into consideration all the pleas which have been taken by the

petitioner in this application.

10.   Having regard to the fact that huge quantity of opium has

been recovered from the petitioner, I am of the view that it is not a

fit case for exercising the discretion of bail in favour of the

petitioner and therefore the bail application of the petitioner is

dismissed.     Expression of any opinion herein before may not be

treated as an expression on the merit of the case.




                                                     V.K. SHALI, J.

SEPTEMBER 15, 2011