Himachal Pradesh High Court
Reserved On: 25.09.2024 vs State Of Himachal Pradesh on 3 October, 2024
2024:HHC:9477
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2054 of 2024
Reserved on: 25.09.2024
Date of Decision: 03.10.2024.
Ashraf Mohammad ...Petitioner
versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. K.B Khajuria, Advocate.
For the Respondent : Mr. Prashant Sen, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested vide FIR No. 19 of 2023, dated 09.02.2023 for the
commission of offences punishable under Sections 20 and 29 of
Narcotic Drugs and Psychotropic Substances, Act (hereinafter
referred to as "ND&PS") registered at Police Station Chowari,
District Chamba. The petitioner is innocent and he was falsely
implicated. The allegations levelled in the report are false. The
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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investigation is complete and no recovery is to be effected from
the petitioner. The petitioner would abide by all the terms and
conditions, which the Court may impose. The spot witnesses
have turned hostile and have not supported the prosecution
case. There is a delay in the completion of the trial and the
petitioner is entitled to bail. The petitioner had earlier filed two
bail petitions bearing Cr. M.P(M) No. 3163 of 2023 and Cr.MP(M)
No. 531 of 2024, which were dismissed as withdrawn. Hence, the
petition.
2. The petition is opposed by filing a status report
asserting that the police party was checking the vehicles on
09.02.2023. A vehicle bearing registration No. HP 73-8472 came
from Nainikhad. The police checked the vehicle in the presence
of Rakesh Kumar and found a carry bag containing 1 kg 510
grams of charas. The driver revealed his name as Jeet Singh. The
person sitting on the front seat revealed his name as Dogra and
the person sitting on the rear seat revealed his name as Ashraf
Mohammad. The police seized the charas and the vehicle and
arrested the occupants. As per the report of analysis, the
substance was found to be Charas having 30.06% w/w resin in it.
The police filed the chargesheet before the Court on 06.06.2023.
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The prosecution has cited 24 witnesses out of which 14 have
been examined and three have been given up. The matter is now
listed for the prosecution evidence on 01.10.2024 and 02.10.2024,
respectively.
3. I have heard Mr. K.B Khajuria, learned counsel for the
petitioner and Mr. Prashant Sen, learned Deputy Advocate
General for the respondent/State.
4. Mr. K.B. Khajuria, learned counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. The prosecution has failed to complete the evidence
despite numerous opportunities and the right of speedy trial of
the petitioner is being violated. Hence, he prayed that the
present petition be allowed and the petitioner be released on
bail. He relied upon the judgments of this Court in Cr.MP(M) Nos.
241 and 250 of 2023 titled Karam Singh vs. State of H.P. decided on
28.03.2023, Kuldeep Singh vs State of Himachal Pradesh Cr.MP(M)
No. 1075 of 2023 decided on 18.05.2023 and Jeet Ram in Cr.MP(M)
No. 2657 of 2022 decided on 26.12.2024 in support of his
submission.
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5. Mr. Prashant Sen, learned Deputy Advocate General
for the respondent/State submitted that the petitioner was
found present in the vehicle in which 1.510 kgs. of Charas was
being transported. The quantity of charas recovered from the
vehicle is commercial and the rigours of Section 37 of ND&PS Act
apply to the present case. The petitioner is unable to satisfy the
twin conditions laid down in Section 37 of the ND&PS Act and is
not entitled to bail. There was no delay in the progress of the
trial and only 7 witnesses remain to be examined. Therefore, he
prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The Hon'ble Supreme Court discussed the
parameters for granting the bail in Bhagwan Singh v. Dilip Kumar
2023 INSC 761:2023 SCC OnLine SC 1059 as under: -
"12. The grant of bail is a discretionary relief which
necessarily means that such discretion would have to be
exercised in a judicious manner and not as a matter of
course. The grant of bail is dependent upon contextual
facts of the matter being dealt with by the Court and may
vary from case to case. There cannot be any exhaustive
parameters set out for considering the application for a
grant of bail. However, it can be noted that;
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(a) While granting bail the court has to keep in
mind factors such as the nature of accusations,
severity of the punishment, if the accusations
entail a conviction and the nature of evidence in
support of the accusations;
(b) reasonable apprehensions of the witnesses
being tampered with or the apprehension of there
being a threat for the complainant should also
weigh with the Court in the matter of grant of
bail.
(c) While it is not accepted to have the entire
evidence establishing the guilt of the accused
beyond reasonable doubt but there ought to be
always a prima facie satisfaction of the Court in
support of the charge.
(d) Frivolity of prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court
in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav (2004) 7 SCC 528 where the parameters to be taken
into consideration for the grant of bail by the Courts have
been explained in the following words:
"11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged with
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having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
court granting bail to consider among other
circumstances, the following factors also before
granting bail; they are:
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence.
(b) Reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant.
(c) Prima facie satisfaction of the court in
support of the charge. (See Ram Govind
Upadhyay v. Sudarshan Singh [(2002) 3 SCC
598: 2002 SCC (Cri) 688] and Puran v. Rambilas
[(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs
Dharamraj 2023 INSC 784:2023 SCC Online 1085, wherein it was
observed:
"7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide the
grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh, (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the
relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
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plethora of decisions of this Court on the point. It is well
settled that, among other circumstances, the factors to
be borne in mind while considering an application for
bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.'
9. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
10. The status report shows that the police intercepted
the vehicle bearing registration No. HP73-8472 and recovered
1 kg 510 grams of charas from it. The petitioner was found
present in the vehicle.
11. In Madan Lal versus State of H.P. (2003) 7 SCC 465:
2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was
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recovered from a vehicle and it was held that all the occupants of
the vehicle would be in conscious possession of the contraband.
It was observed:
"19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a
vehicle and as noted by the trial court they were known to
each other and it has not been explained or shown as to
how they travelled together from the same destination in
a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act
which relates to offences for possession of such articles.
It is submitted that in order to make the possession illicit,
there must be conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element i.e. conscious
possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in Supdt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definition
of "possession" uniformly applicable to all situations in
the context of all statutes.
23. The word "conscious" means awareness about a
particular fact. It is a state of mind which is deliberate or
intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC
194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a
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given case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom physical
possession is given holds it subject to that power or
control.
25. The word "possession" means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973
AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it
was observed that where a person keeps his firearm in his
mother's flat which is safer than his own home, he must
be considered to be in possession of the same.
(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976
QB 966 : (1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it,
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54 where also presumption is available to be drawn from
possession of illicit articles.
27. In the factual scenario of the present case, not only
possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in the
logical background of Sections 35 and 54 of the Act."
12. It was laid down by the Hon'ble Supreme Court in
Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3
SCC (Cri) 721: 2021 SCC OnLine SC 1237 that a person is in
possession if he is in a position to exercise control over the
article. It was observed on page 111:
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"25. We shall deal with each of these circumstances in
turn. The respondent has been accused of an offence
under Section 8 of the NDPS Act, which is punishable
under Sections 21, 27-A, 29, 60(3) of the said Act. Section
8 of the Act prohibits a person from possessing any
narcotic drug or psychotropic substance. The concept of
possession recurs in Sections 20 to 22, which provide for
punishment for offences under the Act. In Madan
Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC
465: 2003 SCC (Cri) 1664] this Court held that: (SCC p. 472,
paras 19-23 & 26)
"19. Whether there was conscious possession has to be
determined with reference to the factual backdrop.
The facts which can be culled out from the evidence on
record are that all the accused persons were travelling
in a vehicle and as noted by the trial court they were
known to each other and it has not been explained or
shown as to how they travelled together from the same
destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband
articles an offence. Section 20 appears in Chapter IV of
the Act which relates to offences for possession of
such articles. It is submitted that in order to make the
possession illicit, there must be a conscious
possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element i.e.
conscious possession and not mere custody without
awareness of the nature of such possession, Section 20
is not attracted.
22. The expression "possession" is a polymorphous
term which assumes different colours in different
contexts. It may carry different meanings in
contextually different backgrounds. It is impossible, as
was observed in Supt. & Remembrancer of Legal Affairs,
W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of
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Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC
274: 1979 SCC (Cri) 1038] to work out a completely
logical and precise definition of "possession"
uniform[ly] applicable to all situations in the context
of all statutes.
23. The word "conscious" means awareness about a
particular fact. It is a state of mind which is deliberate
or intended.
***
26. Once possession is established, the person who
claims that it was not a conscious possession has to
establish it, because how he came to be in possession
is within his special knowledge. Section 35 of the Act
gives a statutory recognition of this position because
of the presumption available in law. Similar is the
position in terms of Section 54 where also
presumption is available to be drawn from possession
of illicit articles."
26. What amounts to "conscious possession" was also
considered in Dharampal Singh v. State of Punjab
[Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431], where it was held that the
knowledge of possession of contraband has to be gleaned
from the facts and circumstances of a case. The standard
of conscious possession would be different in the case of a
public transport vehicle with several persons as opposed
to a private vehicle with a few persons known to one
another. In Mohan Lal v. State of Rajasthan [Mohan
Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC
(Cri) 881], this Court also observed that the term
"possession" could mean physical possession with
animus; custody over the prohibited substances with
animus; exercise of dominion and control as a result of
concealment; or personal knowledge as to the existence
of the contraband and the intention based on this
knowledge."
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13. Hence, prima facie, the petitioner is involved in the
commission of an offence punishable under Section 20 (b) (ii)
(c) of the ND&PS Act.
14. 1.150 kg of charas is a commercial quantity and the
rigours of Section 37 apply to the present case.
15. Section 37 of the NDPS Act provides that in an
offence involving commercial quantity, the Court should be
satisfied that the accused is not guilty of the commission of an
offence and is not likely to commit any offence while on bail.
Section 37 of the NDPS Act reads as under:
"37. Offences are 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 section 24 or section 27A
and also for offences involving commercial
quantity shall be released on bail or 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 an offence and that he is
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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."
16. This section was interpreted by the Hon'ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738 and it was held that in the absence of the satisfaction that
the accused is not guilty of an offence and he is not likely to
commit an offence while on bail, he cannot be released on bail.
It was observed:
"7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are :
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27A and
(4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the
fourth factor namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case, the court
proposes to grant bail to such a person, two conditions
are to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment.
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(1) The court must be satisfied that there are
reasonable grounds for believing that the person is
not guilty of such offence;
(2) that person is not likely to commit any offence
while on bail."
17. This position was reiterated in State of Kerala Versus
Rajesh AIR 2020 SC 721 wherein it was held:
"19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act.
In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC
429, it has been elaborated as under:-
"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 the 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. The reason may be the
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 vs. Chief Secy., Union Territory of
Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
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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 Act 81 of
1985 specifying mandatory minimum
imprisonment and fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the
person accused of offences under the NDPS Act
should not be released on bail during trial unless
the mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for
believing that the accused is not guilty of
such offence; and
(ii) that he is not likely to commit any
offence while on bail are satisfied. The High
Court has not given any justifiable reason for
not abiding by the aforesaid mandate while
ordering the release of the respondent
accused on bail. Instead of attempting to
take a holistic view of the harmful socio-
economic consequences and health hazards
which would accompany trafficking illegally
in dangerous drugs, the court should
implement the law in the spirit with which
Parliament, after due deliberation, has
amended."
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20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also
subject to the limitation placed by Section 37 which
commences with the non-obstante clause. The operative
part of the said section is in the negative form prescribing
the enlargement of bail to any person accused of
commission of an offence under the Act unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose the
application, and the second is that the Court must be
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban for granting bail
operates.
21. 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
the 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."
18. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
"21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24
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or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
(ii) There must exist "reasonable grounds to
believe" that : (a) the person is not guilty of such an
offence; and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
"reasonable ground to believe" that the person
is not guilty of the offence. Interpreting the standard of
"reasonable grounds to believe", a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
"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 the
existence of such facts and circumstances as are
sufficient in themselves to justify the recording of
satisfaction that the accused is not guilty of the offence
charged.
8. The word "reasonable" has in law the 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".
'7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word "reasonable". Reason
varies in its conclusions according to the
idiosyncrasy of the individual, and the times and
circumstances in which he thinks. The reasoning
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which built up the old scholastic logic sounds now
like the jingling of a child's toy.'
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504,
para 7 and Gujarat Water Supply & Sewerage
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***
10. The word "reasonable" signifies "in accordance
with reason". In the ultimate analysis, it is a
question of fact, whether a particular act is
reasonable or not depends on the circumstances in
a given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court while considering the application for
bail with reference to Section 37 of the Act is not
called upon to record a finding of not guilty. It is for
the limited purpose essentially confined to the
question of releasing the accused on bail that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty
and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of
acquittal and recording a finding of not guilty."
(emphasis supplied)
23. 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."
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19. It was held in Union of India v. Ajay Kumar Singh, 2023
SCC OnLine SC 346 that the bail cannot be granted without
complying with the requirement of Section 37 of the NDPS Act. It
was observed:
4. This apart, it is noticed that the High Court, in passing
the impugned order of bail, had lost sight of Section 37 of
the NDPS Act, which, inter alia, provides that no person
accused of an offence involving commercial quantity shall
be released on bail unless the twin conditions laid down
therein are satisfied, namely, (i) the public prosecutor has
been given an opportunity to oppose the bail application;
and (ii) the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such an
offence and that he is not likely to commit any such
offence while on bail.
15. For the sake of convenience Section 37(1) is
reproduced hereinbelow:--
"37. Offences to be cognizable and nonbailable.-
(1) Notwithstanding anything contained in
the Criminal Procedure Code, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall
be cognizable;
(b) no person accused of an offence punishable
for 2[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
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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."
16. In view of the above provisions, it is implicit that no
person accused of an offence involving trade in a
commercial quantity of narcotics is liable to be released
on bail unless the court is satisfied that there are
reasonable grounds for believing that he is not guilty of
such an offence and that he is not likely to commit any
offence while on bail.
20. It was held in State of Meghalaya v. Lalrintluanga
Sailo, 2024 SCC OnLine SC 1751 that the grant of bail without
considering Section 37 of the NDPS Act is impermissible. It was
observed:
"5. There cannot be any doubt with respect to the
position that in cases involving the commercial quantity
of narcotic drugs or psychotropic substances while
considering the application of bail, the Court is bound to
ensure the satisfaction of conditions under Section 37(1)
(b)(ii) of the NDPS Act. The said provision reads thus:--
"37(1)(b)(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."
6. While considering the cases under the NDPS Act, one
cannot be oblivious of the objects and reasons for
bringing the said enactment after repealing the then
existing laws relating to Narcotic drugs. The object and
reasons given in the acts itself reads thus:--
"An act to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the
control and regulation of operations relating to narcotic
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drugs and psychotropic substances, to provide for the
forfeiture of property derived from, or used in, illicit traffic
in narcotic drugs and psychotropic substances, to
implement the provisions of the International Convention
on Narcotic Drugs and Psychotropic Substances and for
matters connected therewith."
In the decision in Collector of Customs, New
Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549, the three-
judge bench of this Court considered the provisions under
Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with
regard to the expression "reasonable grounds" used
therein. This Court held that it means something more
than the prima facie grounds and that it contemplates
substantial and probable causes for believing that the
accused is not guilty of the alleged offence. Furthermore,
it was held that the reasonable belief contemplated in the
provision would require the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence.
As relates to the twin conditions under Section 37(1)(b)
(ii) of the NDPS Act, viz., that, firstly, there are
reasonable grounds for believing that the accused is not
guilty of such offence and, secondly, he is not likely to
commit any offence while on bail it was held therein that
they are cumulative and not alternative. Satisfaction of
the existence of those twin conditions had to be based on
the 'reasonable grounds', as referred to above.
7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC
122, after reiterating the broad parameters laid down by
this Court to be followed while considering an application
for bail moved by an accused involved in offences under
the NDPS Act, in paragraph 18 thereof this Court held that
the scheme of Section 37 of the NDPS Act would reveal
that the exercise of power to grant bail in such cases is
not only subject to the limitations contained under
Section 439 of the Code of Criminal Procedure, but also
subject to the limitation placed by Section 37(1)(b)
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(ii), NDPS Act. Further, it was held that in case one of the
two conditions thereunder is not satisfied the ban for
granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of
the NDPS Act and the decisions referred supra revealing
the consistent view of this Court that while considering
the application for bail made by an accused involved in an
offence under NDPS Act a liberal approach ignoring the
mandate under Section 37 of the NDPS Act is
impermissible. Recording a finding mandated under
Section 37 of the NDPS Act, which is sine qua non for
granting bail to an accused under the NDPS Act cannot be
avoided while passing orders on such applications."
21. In the present case, the petitioner was found in
possession of 1.510 kgs. of charas and there are no reasonable
grounds to believe that he has not committed the offence. There
is nothing on record to show that he would not commit the
offence in case of his release on bail. Thus, he has not satisfied
the twin conditions laid down in Section 37 of the NDPS Act.
22. It was submitted that there is a delay in the progress
of the trial and the petitioner is entitled to bail on the ground of
delay. This submission cannot be accepted. The status report
shows that the charge sheet was filed before the Court on
06.06.2023 and the prosecution has examined 17 witnesses
within a period of one year and 3 months. The matter is now
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listed for the prosecution witnesses on 01.10.2024 and
02.10.2024, respectively.
23. It was submitted that there is a holiday on 02.10.2024
and the witnesses are not likely to be examined on that day. This
submission cannot be accepted. As per the Rules, the case would
be taken up on the next day, if the date fixed happens to be a
holiday; hence the case would be taken up on 03.10.2024 and the
submission that no witness would be examined on 02.10.2024
cannot be accepted. Further, the petitioner has not filed a copy
of the order sheets maintained by the learned Trial Court to
establish that the delay was caused due to the prosecution and
not due to the act of the accused/petitioner. Since a person
cannot take advantage of his own wrongs. Therefore, in the
absence of the order sheets, the petitioner cannot be held
entitled to bail on the ground of delay.
24. In Karam Singh (supra) the Court found that 5 out of
21 witnesses were examined and the trial was not likely to be
completed soon. In the present case, the majority of witnesses
have been examined and the judgment does not apply to the
facts of the present case. In Kuldeep Singh (supra) two and half
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years had elapsed without the completion of the trial. In Jeet
Ram (supra) the prosecution evidence was not completed for
more than three years and the Court found it to be a case of
delayed trial. In the present case, only one year and three
months have elapsed since the filing of the charge sheet and the
prosecution has examined a significant number of witnesses.
Therefore, the cited cases do not apply to the present case.
25. Consequently, the present petition fails and the same
is dismissed.
26. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
3rd October, 2024
(Nikita)
