Delhi High Court
[email protected] Renuka Biswas vs The State Nct Of Delhi on 13 April, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 13th April, 2022
+ BAIL APPLN. 631/2022
[email protected] RENUKA BISWAS ...Petitioner
Through: Mr. Vikas Jain and Mr. Vishal
Krishnantrey, Advocates
versus
THE STATE NCT OF DELHI ...Respondent
Through: Ms. Kusum Dhalla, APP for
State
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The present petition has been preferred under Section 439 read
with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter,
referred to as the "Code") for seeking regular bail in FIR bearing No.
226/2019 under Sections 21/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter, referred to as the "NDPS Act")
registered at PS - Special Cell, Delhi.
2. The brief facts of the case as per the prosecution are that on 15th
December 2019, at around 5:40 am, the Police Station - Special Cell,
Lodhi Colony, New Delhi received information that a person named
Anubhav Dushad @ Vicky, r/o Munirka Village, New Delhi has been
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
dealing in narcotic drugs supply, and was to deliver a consignment of
narcotic drugs to a woman named Renuka, on the very same day, near
New Delhi Railway Station. A raiding team was accordingly
constituted, and the concerned persons were apprehended from the
spot. The consignment recovered contained a light-brown powder
weighing 3 Kgs, that upon being checked through field testing kit,
turned out to be narcotic substance „Heroin‟. An FIR was accordingly
registered under Sections 21 and 29 of NDPS Act.
3. Learned counsel for the petitioner submitted that the petitioner is
innocent, is a person of good standing, has clean antecedents and has
been falsely implicated in the present case. It is also submitted that the
petitioner has to take care of her minor son and ailing parents. It is
further submitted that the petitioner has been in judicial custody for the
last two years and considering the fact that the chargesheet has been
already filed, the petitioner is no more required for any investigative
purposes.
4. It is further alleged that there was non-compliance of the
requirement under section 50 of the NDPS Act. It is also prayed that
since the applicant is a woman, she is entitled to the special
consideration for bail as prescribed under the proviso to Section 437(1)
of Cr.P.C. The learned counsel on instructions also submitted that the
petitioner undertakes not to tamper with the evidence and shall not
influence the witnesses and shall abide by any terms/conditions
imposed on her while granting bail. In light of the aforesaid, it is
submitted that the applicant be granted bail.
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
5. Per Contra, Ms. Kusum Dhalla, learned APP for State
vehemently objected the instant application and submitted that a total
of 3 Kgs of Heroin was recovered from the possession of the applicant
herein, and accordingly under Section 37 of the NDPS Act, no person
accused of an offence involving commercial quantities of narcotic
substances under the said Act, should be released on bail.
6. It is prayed that the intent behind legislating the Act was to stop
the cascading effect of drug-addiction, and serious ramifications, on
the society at large. It is prayed that if the applicant being alleged of
the grave offence is released on bail, it will defeat the legislative intent
behind the special Act.
7. It is further submitted that a prima facie opinion of the
innocence of the accused is not a sufficient condition in deciding grant
of bail. There should be existence of „reasonable grounds‟ pointing to
existence of facts and circumstances justifying the accused‟s
innocence. In the instant case, there are no cogent reasons whatsoever
for grant of bail to the accused, and therefore the instant petition being
devoid of merits be dismissed.
8. Heard learned counsels for the parties and perused the record
including the contents of the FIR, the averments of the bail application
as well as the Status Report filed by the state.
9. Since the applicant has been accused of possessing a commercial
quantity of the contraband which has been recovered from her, it is
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
pertinent to refer and analyse the provisions and objective of the NDPS
Act. Section 37 of the Act reads as under:
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.
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
10. In view of the gravity of the consequences of drug trafficking,
the offences under the Act have been made cognizable and non-
bailable. The Section does not allow granting bail for offences
punishable under Section 19 or Section 24 or Section 27A and for
offences involving commercial quantity unless the twin conditions
prescribed under the Section have been met. The conditions include -
first, hearing the Public Prosecutor and second, satisfaction of the
Court based on reasonable grounds that the accused is not guilty of the
offence and that he is likely to not commit an offence of a similar
nature.
11. The fetters on the power to grant bail do not end here, rather
they are over and above the consideration of relevant factors that must
be done while considering the question of granting bail. The court also
needs to be satisfied before grant of bail about the provisions of
Section 439 of the Code. Thus, it is evident that the present section
limits the discretion of the court in matters of bail by placing certain
additional factors over and above what has been prescribed under the
Code.
12. The contours of Section 37 of the NDPS Act have been analysed
by the Hon‟ble Supreme Court in the case of Union of India v. Ram
Samujh (1999) 9 SCC 429. The Hon'ble Court extracted the Statement
of Objects and Reasons for the introduction of Section 37 of the Act
amended through Bill No. 125 of 1988. It is relevant to extract those
for the present analysis, which reads as:
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
"6. The aforesaid section is incorporated to achieve the
object as mentioned in the Statement of Objects and
Reasons for introducing Bill No. 125 of 1988 thus:
"Even though the major offences are non-bailable
by virtue of the level of punishments, on technical
grounds, drug offenders were being released on
bail. In the light of certain difficulties faced in the
enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the need to
amend the law to further strengthen it, has been
felt."(emphasis supplied)
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 [(1990) 1 SCC 95: 1990 SCC (Cri) 65] as under:
(SCC p. 104, para 24)
XXX
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
24. With deep concern, we may point out that the organised
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 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."
13. Thus, what is evident from the above is that the offences
prescribed under the Act are not only a menace to a particular
individual but to the entire society at large, especially, the youth of the
country. Such offences have a cascading effect and are in vogue these
days, thus destroying the capabilities and lives of a big chunk of the
population and trend has been growing over the years. Therefore, in
order to prevent the devastating impact on the people of the nation,
Parliament in its wisdom deemed it fit to introduce stringent conditions
for grant of bail under the Act. The Court must stay mindful of the
legislative intent and mandate of the Act while considering the
question of bail in such matters.
14. As far as the condition under Section 37(b)(i) is concerned, there
is no ambiguity in its interpretation. It is merely a manifestation of the
doctrine of audi alteram partem. Since the crime is an act against the
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
society, the legislature has contemplated that the Public Prosecutor
must be given an opportunity to oppose a Bail Application under the
Act. Additionally, under Section 37(b)(ii) of the NDPS Act, the Court
is not required to be merely satisfied about the dual conditions i.e.,
prima facie opinion of the innocence of the accused and that the
accused will not commit a similar offence while on bail, but the court
must have „reasonable grounds‟ for such satisfaction.
15. The term „reasonable grounds‟ under Section 37(b)(ii) has been
interpreted by the Hon‟ble Supreme Court in the case of Union of
India v. Shiv Shanker Kesari, (2007) 7 SCC 798. It was a case where
an appeal was preferred against the order granting bail under the NDPS
Act by the High Court. The prosecution alleged that the raiding party
seized nearly 400 kgs. of poppy straw from the possession of the
accused therein. The Special Court rejected the bail while the High
Court granted the bail on the ground that the recovery was not from the
exclusive possession of the accused. The Supreme Court set aside the
order granting bail. In this context, it interpreted „reasonable grounds‟
under Section 37 of the Act, as under:
"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. The word "reasonable" has in law the
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
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".
16. Thus, the term „reasonable grounds‟ is not capable of any rigid
definition, but its meaning and scope will be determined based on the
surrounding facts and circumstances of each case. What may be
reasonable in one set of facts may not be reasonable in another set of
facts. However, the standard of satisfaction in such cases is more than
mere satisfaction on a prima facie opinion. Thus, the Court before
exercising its discretion for granting the bail must record the
reasonable grounds before granting bail to the accused.
17. The Hon‟ble Supreme Court recently in the case of Union of
India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the
position of law with respect to Section 37 of the Act. After analysing
its previous decisions, the Court prescribed the following test for
granting bail under Section 37 of the Act:
"20. 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."
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
18. Thus, the Court must be conscious about the mischief that is
sought to be curbed by the Act and the consequences that might ensue
if the person accused of the offence under the Act is released on bail.
The Court must be satisfied on the basis of reasonable grounds
discernible from the facts and circumstances that the Applicant is not
prima facie guilty of offences that the accused is charged with.
19. Additionally, the Court also needs to be satisfied that the person
so released will not commit the offence while being on bail. Both the
conditions are interlinked because the Parliament in its wisdom,
intends that in cases where there is a possibility of commission of this
grave offence under the Act, the person need not be released. It is so
because if the person is released, he is most likely to repeat the
offence, thus impacting the society at large. Thus, to not give any
leeway to the accused, the Court must be satisfied about the dual
conditions on reasonable grounds.
20. Proceeding to the application of Section 37 in the instant matter,
the Public Prosecutor has been heard who has vehemently opposed the
bail petition with reasons. With respect to the second condition
prescribed thereunder, this Court is satisfied that there are no
reasonable grounds, based on the analysis of the provision in the
foregoing paragraphs and its application to the facts of the case, for
this Court to believe that the Petitioner is not guilty of the offence that
she has been charged with. Since this court is not satisfied on this
ground, there is no question to consider that the accused will not
commit the offence while on bail.
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
21. In view of the aforementioned facts, circumstances, analysis and
reasoning, keeping in mind the legal provisions and the underlying
intent as well as the mischief that is sought to be curbed by the NDPS
Act, this Court is of the considered view that the conditions stipulated
under Section 37 of the Act are not satisfied and there are no
„reasonable grounds‟ to presume the accused as not being guilty of the
offence.
22. Another argument that has been pleaded by the learned counsel
for the Applicant is that the applicant, being a woman, is entitled to the
special consideration for bail as prescribed under the proviso to Section
437(1) of Cr.P.C. It is pertinent to reiterate that since a special
legislation is invoked, Section 37 of the said Act begins with the words
"Notwithstanding anything contained in the Code of Criminal
Procedure, 1973" and restrains the grant of bail in the circumstances as
aforementioned, the special consideration for bail to the applicant
being a woman is not available.
23. Accordingly, taking into consideration the amount of the
contraband recovered from the possession of the applicant and the
gravity of the allegations against the backdrop of the facts of the case
and the reasoning mentioned hereinabove, this Court is not inclined to
allow the instant Bail Application as being devoid of any merit and
hence, is liable to be dismissed.
24. Therefore, in light of the aforesaid analysis of the provisions of
the law, the jurisprudence pertaining thereto, and the relevant rulings
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
of the Hon'ble Supreme Court referred above as well as application to
the facts of the instant case, the instant Bail Application stands
dismissed.
25. It is made clear that observations made herein shall have no
bearing whatsoever on the merits of the case at any stage during the
trial or any other proceedings before any other Court.
26. Pending applications, if any, also stand disposed of.
CHANDRA DHARI SINGH, J
APRIL 13, 2022
gs/@k
Digitally Signed By:GAURAV
SHARMA
Signing Date:19.04.2022
18:55:56
