Kumar vs Mehboon
2022 Latest Caselaw 8814 HP

     IN THE    HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 28th DAY OF OCTOBER, 2022
                                BEFORE
               HON'BLE MR. JUSTICE VIRENDER SINGH




                                                         .
          CRIMINAL MISC. PETITION (MAIN) No.2323 of 2022





          Between:-

          YOGESH KUMAR, S/O RISHI





          KUMAR, RESIDENT OF VILLAGE
          BAMSOI     (TAKOLI),     P.O.
          NAGWAIN,     TEHSIL     AUT,
          DISTRICT MANDI, H.P. AGED 31
          YEARS.





                                                            ...PETITIONER
          (BY MR. G.R. PALSRA, ADVOCATE
          AND

          STATE        OF      HIMACHAL

          PRADESH
                                                          ...RESPONDENT
          (MR. SHIV PAL MANHANS, ADDITIONAL ADVOCATE
          GENERAL AND MR. BHUPINDER THAKUR, DEPUTY


          ADVOCATE GENERAL).

          WHETHER APPROVED FOR REPORTING?




          This petition coming on for admission this day, this Court





    passed the following:

                              ORDER

The bail petitioner Sh. Yogesh Kumar, has filed the

present application, under Section 439 of the Code of Criminal

Procedure, for releasing him on bail, during the pendency of the

trial, in case FIR No. 01 of 2021, dated 18.03.2021, under Section

20 of the Narcotic Drugs and Psychotropic Substance Act

(hereinafter referred to as the NDPS Act), registered with Police

Station SV&ACB, Mandi, H.P.

2. The bail petitioner has pleaded the fact that he is

.

innocent person and has falsely been impleaded in the present

case.

3. Heavily relying upon the report of the chemical

examiner dated 12.07.2021, wherein, the resin content have been

shown as 35.66% w/w, the petitioner is seeking bail, in the instant

case.

4. On the basis of the report of FSL, the bail applicant

has pleaded that the rigors of Section 37 of the NDPS Act are not

applicable in the present case. On these submissions, learned

counsel appearing for the bail petitioner has prayed that during

the pendency of the trial, the bail petitioner may be released on

bail.

5. When put on notice, the police has filed the status

report disclosing therein that, the police party was on patrolling

duty at place Aut, District Mandi. Around 9:00 P.M., a secret

information was received regarding the indulgence of bail petitioner

in the sale of charas and it has also been informed that in case,

search of his shop is conducted, then large quantity of charas can

be recovered. The said information was found to be authenticated

by the Investigating Officer Sh. Manish Kumar. Thereafter, he has

complied with the provisions of Section 41(2) of the NDPS Act and

after associating the ward member Sh. Ram Chand and Sh. Om

Parkash of Gram Panchayat Takoli, as witnesses, the

.

shop/dhabha of the bail petitioner was searched at about 10:15

P.M. During the search, contraband (charas) weighing 1024 grams

was found. Other codal formalities were completed and the

accused has been arrested.

6. The codal formalities, as per Section 52(A) (II) of NDPS

Act were also got completed from the Court of learned Additional

Chief Judicial Magistrate Mandi, and thereafter, the sample of

recovered contraband was sent to FSL Junga for chemical

examination.

7. Apart from the above facts, the police has also given

the history of two other cases registered against the bail petitioner.

The first case is stated to be registered vide FIR No. 264 of 2008,

dated 15.11.2008, under Section 20, 29 of ND&PS Act with Police

Station Barmana and other one is FIR No. 13 of 2016, dated

03.02.2016, under Section 20 of ND&PS Act with Police Station

Aut, District Mandi.

8. The second case is stated to be pending adjudication,

however, it has fairly been conceded by learned Additional

Advocate General that the bail petitioner has been acquitted in first

case i.e. in case FIR No. 264 of 2008 registered with Police Station

Barmana, District Bilaspur.

9. As per the status report, the charge-sheet against the

accused has been filed, which is pending adjudication in the Court

.

of learned Special Judge-II, Mandi.

10. The bail petitioner has also filed the bail application

under Section 439 of Cr.P.C., before the Court of learned Special

Judge-II, Mandi. The said bail application has been dismissed vide

order dated 21.09.2022.

11. Thus, a prayer has been made to dismiss the bail

application. r

12. Arguments heard and file perused.

13. The petitioner, in this case is seeking the bail on the

ground that the resin contents in FSL were found to be 35.66%

w.w. This argument has been advanced in order to prove that

according to the resin contents, the alleged recovered charas does

not fall in the category of commercial quantity and as such, the

rigors of Section 37 of NDPS does not apply.

14. However, in view of the decision rendered by Hon'ble

Full Bench of this Court in a case reported as 2013 (3) Him. L.R.

(FB) 1834 titled State of Himachal Pradesh versus Mehboon

Khan & Connected Matter, the said arguments are liable to be

rejected. The relevant paragraph of the judgment is reproduced as

under:-

"55(c) In view of the detailed discussion hereinabove, the Division Bench while deciding Sunil's case supra has definitely erred in taking note of the percentage of tetrahydrocannabinol in three forms of Cannabis i.e Bhang, Ganja and Charas and

.

hence, concluded erroneously that without

there being no reference of the resin contents in the Reports assigned by the Chemical Examiners in those cases, the contraband recovered is not proved to be Charas, as in our

opinion, the Charas is a resinous mass and the presence of resin in the stuff analyzed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas".

15.

In view of the above decision, the report of FSL is no

way helps the case of the bail petitioner.

16.

The quantity of contraband, which has allegedly been

recovered from the possession of the bail petitioner, as per the

status report, falls in the category of the commercial quantity.

17. In a case of commercial quantity, rigors of Section

37(2) come into play. It is no longer res-integra that both the

conditions as enumerated in Section 37 of the NDPS must exist

before releasing the bail petitioner, on bail during the pendency of

the trial.

18. Hon'ble Apex Court in a recent decision has

elaborately discussed the proceedings of Section 37 of the NDPS in

a case reported in 2022(10) SCALE, titled Narcotics Control

Bureau vs. Mohit Aggtarwal, wherein it was held as under:-

"10. The provisions of Section 37 of the NDPS Act read as follows:

"[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 24or section 27A and also

for offences involving commercial quantity] shall be released on bail or on r 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.]

11. It is evident from a plain reading of the non-obstante clause inserted in sub- section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are

the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1)

.

of Section 37 is that (i) the Public

Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is

opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be

satisfied that the accused person is unlikely to commit any offence while on r bail.

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."

13. The expression "reasonable ground"

came up for discussion in "State of Kerala and others Vs. Rajesh and others" 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 r 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."

19. This Court finds nothing on record, from which, it can

even be inferred at this stage, that any condition, as enumerated in

Section 37 of the NDPS Act, exist, in favour of bail petitioner.

20. Considering all these facts, there is no ground to pass

any order in favour of the bail petitioner under Section 439 of the

Cr.P.C. Consequently, the bail application of the bail petitioner is

.

dismissed.

21. Any observations, made herein above, shall not be

taken as an expression of opinion, on the merits of the case, as

these observations, are confined only to the disposal of the present

bail application.

    October 28, 2022
        (Vinod)
                    r        to                    (Virender Singh)
                                                       Judge