Neutral Citation Number: 2022/DHC/005284
$~13
* IN THE HIGH COURT OF DELHI AT NEWDELHI
Reserved on: October 18, 2022
Decided on: December 2, 2022
+ BAIL APPLN. 2399/2022
PANKAJ .....Petitioner
Through: Mr. Pritish Sabharwal,
Mr.Sanjeet Kumar and
Mr.Shashank, Advocates.
V
STATE ..... Respondent
Through: Mr. Sachin Mittal, ASC
(through VC) with Mr.
Alok Sharma, Advocate
for State alongwith SI
Ankit Singh, P.S. Mangol
Puri.
%
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The petitioner filed present bail application under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for grant of regular bail in FIR bearing No. 899/2020 dated 04.11.2020 registered under sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").
2. The brief facts of the case are that on 04.11.2020 at around 2:00 PM in the afternoon, the petitioner alongwith co-accused Pankaj Giri was apprehended by the patrolling police on the
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Kanjhawala link road, Stone Market, Mangol Puri. The petitioner and co-accused were found to be carrying 22 kg and 81 kg of 'ganja' respectively. The petitioner found to be carrying 22 kg of 'ganja' on a TVS Scooty bearing no. DL11SW2226 and was pushing the rickshaw from behind with his leg which was being driven by the co-accused Pankaj Giri carrying 81 kg of 'ganja'. The petitioner and co-accused Pankaj Giri were arrested. The charge-sheet was filed after completion of investigation under section 20 of NDPS Act on 15.04.2021 in the court of ASJ/Spl Judge, Rohini Courts, New Delhi. The cognizance was taken. The petitioner and co-accused @Pankaj Giri are in judicial custody.
3. The petitioner in bail application stated that earlier bail application under section 439 of the Code was dismissed by the Court of Shri Rakesh Kumar- IV, Additional Sessions Judge, Special Judge (NDPS), North West District, Rohini Court, Delhi vide order dated 25.07.2022 on the grounds that commercial quantity i.e 22 kg 'ganja' is recovered from possession of the petitioner. The commercial quantity which was stated to be recovered was sent to FSL for forensic examination and result of which was "On physical, microscopic, chemical & TLC examination, exhibits R-1, R-3 & R-5 were found to be 'ganja'. 3.1 The petitioner earlier moved an application under section 482 of the Code read with section 439 of the Code bearing no. 2399/2022 for grant of interim bail for a period of 90 days on the ground that his wife is experiencing abdominal pain, bleeding per vaginum and irregular menstrual cycles and due to which, she
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requires surgical intervention. This Court vide order dated 02.09.2022 granted interim bail for a period of 20 days w.e.f. 10.09.2022 to 29.09.2022 (both days inclusive) on furnishing a personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the concerned trial Court subject to the conditions.
3.2 As per the charge-sheet the petitioner and co-accused Pankaj Giri were carrying two white sacks and when they were stopped by the special staff/outer district and enquired about the sacks, the petitioner and co-accused Pankaj Giri, did not answer properly and thereafter they were thoroughly checked. The substance/material stated to be found in two sacks was appearing to be Tobacco like substance and after being weighed, it turned out to be 22 kg in scooty and two sacks which were in rickshaw weighing 40 and 41 kg each. Thereafter, the samples of the seized material was sent to FSL for examination, the results of FSL was that the sacks contain 'ganja'.
4. The respondent/State filed the Status Report dated 07.10.2022 under the signature of Insp. Ajmer Singh, Special Staff/Outer District Delhi wherein it is mentioned that the petitioner had procured the recovered contraband from Rakesh resident of Mathura UP. The petitioner during the investigation was found to be the owner of the 'ganja' and other co-accused Pankaj Giri was working as a carrier to the petitioner. The petitioner did not co-operate in the investigation regarding source
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of the drug. It is stated in the Status Report that the present bail application be dismissed
5. The counsel for the petitioner argued that the petitioner cannot be held liable for offences as the story of the prosecution is false and the substance which was stated to be found is not 'ganja' according to section 2 of the NDPS Act. It is to be noted that leaves, stems, and seeds are not considered to be 'ganja' which further clarifies and mandates that to determine the quantity of the substance seized, the substance seized must be devoid of moisture and any morphologically and anatomically irrelevant parts like seed, stems, and leaves.
6. The Additional Standing Counsel for the State/respondent argued that the petitioner was apprehended on 04.11.2020 on the basis of suspicious behavior. The petitioner did not give satisfactory explanation regarding contents of sacks which on examination resembled as 'TOBACCO'. The petitioner was carrying 22 kg of 'ganja' kept in a beg on scooty bearing registration no. DL 11SW2226 while co-accused Pankaj Giri was carrying commercial quantity of 'ganja'. Scooty used in crime i.e DL11SW2226 was registered in the name of the petitioner. The petitioner procured the recovered contraband from Rakesh resident of Mathura UP and co-accused Pankaj Giri was working as a carrier to the applicant. The petitioner and co-accused Pankaj Giri were /are part of a drug syndicate, having wide delivery network. The charges u/s 20NDPS Act have already been framed against the petitioner. Offence is very heinous in
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nature. The Petitioner is also previously involved in three other criminal cases. The Petitioner may skip the trial and also temper/ influence the witnesses
7. Section 20 and 37 of the NDPS act which reads as sunder:-
20. Punishment for contravention in relation to cannabis plant and cannabis.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,--1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause(b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of
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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 3[offences under section 19 or section 24 orsection 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.]
8. The Supreme Court in Union of India V. Rattan Mallik @ Habul, 2009 (1) SCC (Crl) 831, observed as under:
12. It is plain from a bare reading of the non-
obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on
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bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds.
9. The petitioner was apprehended alongwith 22 kg of 'ganja' on 04.11.2020 by the patrolling police. The FSL report also indicated that the recovered material from the possession of the petitioner was 'ganja' in nature. The charged have already been framed against the petitioner. The quantity of the 'ganja' stated to be recovered from the possession of the petitioner is commercial and was found in conscious possession of the 'ganja'. Keeping in view the section 37 of the NDPS Act and the recovery of the 'ganja' and other factors, at this stage, no ground for bail is made out. Hence, application is dismissed. Nothing in this matter shall be taken up as any expression on the final merits of the case.
SUDHIR KUMAR JAIN (JUDGE) DECEMBER 02, 2022 N/KG
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