______________________________________________________________ vs Narcotics Control Bureau
2023 Latest Caselaw 15150 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr. MP (M) No. 1651 of 2023 Decided on: 03.10.2023

______________________________________________________________ Satram Lal ....Petitioner

Versus

Narcotics Control Bureau ...Respondent _

Coram

The Hon'ble Mr. Justice Sushil Kukreja, Judge.

    Whether approved for reporting?1
    For the petitioner       :        Mr. Ajay Kochhar, Senior Advocate
                           r          with Mr. Anubhav Chopra,

                                      Advocate.

    For the respondent      :         Mr. Ashwani Pathak, Senior
                                      Advocate with Mr. Dev Raj,
                                      Advocate.



    Sushil Kukreja, Judge

By way of instant petition, filed under Section

439 of the Code of Criminal Procedure the petitioner is

seeking bail in case FIR No. 75/2020, dated 29.12.2020,

under Sections 8, 20, 29 & 60 of the Narcotic Drugs and

Psychotropic Substances Act (hereinafter referred to as

"the Act") registered at Police Station Narcotics Control

Bureau, Nahan, District Sirmaur, H.P.

1 Whether reporters of Local Papers may be allowed to see the judgment?

2. The prosecution story, in brief, is that on

.

29.12.2020, the team of Narcotics Control Bureau

received a secret information that two persons namely

Satram Lal (petitioner herein) and Devinder Singh were

travelling in a vehicle bearing registration No. HP35-

4856 and if their vehicle was searched, huge quantity of

charas/cannabis could be recovered. On receiving such

information, the team of NCB laid a nakka at Yashwant

Parmar Chowk, Nahan and stopped the aforesaid

vehicle. During search of the vehicle, 24 packets

containing charas/cannabis were recovered. On

weighment, the contraband was found to be 11.7 Kgs.

After completion of necessary codal formalities, FIR

detailed hereinabove was registered against the

accused persons and they were arrested.

3. The bail application has been filed by the

petitioner on the ground that he is innocent and has

been falsely implicated in the present case. The learned

counsel for the petitioner has contended that the

petitioner is in judicial custody since 29.12.2020 and

the trial has not commenced yet , therefore, the petitioner

.

deserves to be released on bail on the ground of delay in

trial.

4. Per contra, the learned Additional Advocate

General opposed the bail application on the ground that

keeping in view the gravity of the offence alleged to

have been committed by the petitioner and quantity of

the recovered contraband, i.e. commercial quantity, he

is not entitled to be enlarged on bail.

5. I have heard the learned counsel for the

petitioner as well as learned Additional Advocate

General and have also gone through the record of the

case and I am of the firm opinion that the petitioner has

not made out a case for grant of bail, as a perusal of

the record indicates that the quantity of

charas/cannabis involved in the present case is 11.7

Kgs, which is commercial quantity. Since the quantity of

the charas/cannabis falls within the definition of

commercial quantity, therefore, the grant of the bail in

this case is governed by the provision of Section 37 of

.

the NDPS Act, which 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, 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."

6. The Hon'ble Apex Court in the matter of The

State (NCT of Delhi) Narcotics Control Bureau Vs.

Lokesh Chadha, (2021) 5 Supreme Court Cases 724,

has held that no person accused for offences involving a

commercial quantity shall be released on bail, where the

public prosecutor opposes the application, unless 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. The

relevant portion of the said judgment is reproduced

hereunder:-

"9. .......Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for

offences under Section 19 or Section 24 or

Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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.................".

7. Thus, in view of the aforesaid decision of

Hon'ble Apex Court, unless the conditions as laid down

under Section 37 of the NDPS Act are satisfied, the bail

cannot be granted to an accused, who has been found

involved in the commercial quantity of the contraband

under the provisions of the NDPS Act. Moreover, the

limitations on granting of bail specified in clause (b) of

sub-section (1) of Section 37 of the NDPS Act are in

addition to the limitations under the Code of Criminal

.

Procedure. In the instant case, the quantity of the

contraband involved, is 11.7 Kgs of charas/cannabis,

however, the petitioner has failed to satisfy the

conditions for grant of bail, as provided under Section

37 of the NDPS Act.

8.         The   learned
                    r          counsel   for    the      petitioner

contended that the petitioner is in judicial custody since

29.12.2020, as such, he deserves to be released on bail

on the ground of delay in trial, as till date no

prosecution witness has been examined. Although,

Article 21 of the Constitution of India guarantees speedy

trial and an under trial prisoner cannot be detained in

jail/custody for an indefinite period, but, merely because

of the fact that the petitioner is in custody for the last

more than two years and nine months is no ground to

grant him bail. However, taking into consideration the

fact that no prosecution witness has been examined till

date, the learned trial Court can always be directed to

conclude the trial expeditiously. Hence, for the reasons

.

mentioned above, the bail application filed by the

petitioner is dismissed. Since the petitioner is behind

the bars since 29.12.2020 and no prosecution witness

has been examined till date, the learned trial Court is

directed to conclude the trial on or before 31st March,

2024. r

9. Be it stated that any expression of opinion

given in this order does not mean an expression of

opinion on the merits of the case and the trial Court will

not be influenced by any observations made therein.

                                           ( Sushil Kukreja )
    October 03, 2023                                Judge
        (raman)