Himachal Pradesh High Court
Reserved: 28.06.2024 vs State Of Himachal Pradesh on 5 July, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. MP(M) No. 1195 of 2024
Reserved: 28.06.2024
Decided on: 05.07.2024
___________________________________________________________
Gurdev Singh ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
For the petitioner
:
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
Mr. N.S. Chandel, Senior
Advocate with Mr. Ashok
Kumar, Advocate.
For the respondent : Mr. Puneet Rajta, Additional
Advocate General with Ms.
Niyati Thakur and Mr. Raj
Negi, Deputy Advocates
General.
Sushil Kukreja, Judge
By way of instant petition, filed under
Section 439 of the Criminal Procedure Code, the
petitioner is seeking bail in case FIR No. 256/2022,
dated 28.09.2022, registered at Police Station
Nalagarh, District Solan, H.P., under Section 156185
1Whether reporters of Local Papers may be allowed to see the judgment?
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of the Narcotic Drugs and Psychotropic Substances Act
.
(hereinafter referred to as "NDPS Act").
2. The prosecution story, in brief, is that on
28.09.2022, while the police party was on routine
patrolling duty and reached near Navgram crusher, a
secret information was received that a car, bearing
registration No. DL8CZ0735 was coming towards
Punjab via Link Road Androla and if the same was
checked, huge quantity of poppy husk could be
recovered. Accordingly, the police party went towards
village Kotla Kalan and when they reached near the
house of one Tarsem Singh, they saw the aforesaid
vehicle coming towards them, which was signaled to
stop. The police associated Balbir Singh and Gurmeet
Singh as independent witnesses in the proceedings, in
whose presence the driver of the vehicle disclosed his
name as Gurdev Singh (petitioner herein). During
search of the vehicle, when its boot space (dikki) was
opened, three plastic sacks, containing grey coloured
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substance were recovered, which on the basis of
.
experience was found to be poppy husk. The police also
recovered a receipt issued in the name of Fuman Singh
from the dashboard of the car. On weighment, the
recovered contraband was found to be 88.010 Kgs.
Thereafter, the police completed all the codal
formalities andr consequently, FIR as detailed
hereinabove was registered against the petitioner and
he was arrested.
3. The bail application has been filed on the
ground that the petitioner is innocent and has been
falsely implicated. Learned counsel for the petitioner
contended that the petitioner is in judicial custody for
the last about two years and taking into consideration
the age of petitioner, i.e. 34 years, coupled with the fact
that he is the only bread earner of family and his wife
and two minor children are dependent upon him, if he
is not enlarged on bail, their entire life will be ruined.
He further contended that there is inordinate delay in
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conclusion of trial, which infringes upon the right of
.
speedy trial of the petitioner, as such, he is entitled to
be released on bail on the ground that his right of
speedy trial has been violated.
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 petitioner was arrested
for possessing 88.010 Kgs of poppy husk. Since the
quantity of the poppy husk falls within the definition of
commercial quantity, therefore, the grant of the bail in
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this case is governed by the provisions 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 subsection (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
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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
27A 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
in possession of 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 subsection (1) of Section 37 of the NDPS
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Act are in addition to the limitations under the Code of
.
Criminal Procedure.
8. In the instant case, the recovered
contraband is 88.010 Kgs of poppy husk, which is a
commercial quantity. However, the petitioner has failed
to satisfy the conditions for grant of bail as provided
under Section 37 of the NDPS Act, as such, no ground
has been made out to override the mandatory provision
of Section 37 of the NDPS Act.
9. Learned counsel for the petitioner lastly
contended that the petitioner is in custody since
28.09.2022 and the trial in the case is not likely to be
concluded in near future, 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 about two
years is no ground to grant him bail. However, taking
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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.
10. Hence, for the reasons mentioned above, the
bail application filed by the petitioner is dismissed. As
the petitioner is behind the bars since 28.09.2022 and
no prosecution witness has been examined till date, the
learned trial Court is directed to conclude the trial on
or before 31st December, 2024.
11. 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. The Registry is directed to send a copy of this
order to the learned trial Court forthwith.
(Sushil Kukreja)
July 05, 2024 Judge
(raman)
