Karnataka High Court

Naganath Niranjanappa Shettigar vs State Of Karnataka on 4 March, 2022

Bench: M G Uma

                               1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF MARCH, 2022

                          BEFORE

             THE HON'BLE MRS.JUSTICE M.G. UMA

             CRIMINAL PETITION NO. 305/2021
                             C/W
            CRIMINAL PETITION NO. 9846/2021


IN CRL.P.NO.305/2021:
BETWEEN:

CHANDRAKANTH
S/O LATE. HARICHANDRA
AGED ABOUT 34 YEARS
R/O. LUCCHUNAYAK THANDA
KALAGI, GULBARGA DISTRICT
PIN CODE - 585 312
                                                ... PETITIONER

(BY SRI: HASMATH PASHA, SENIOR COUNSEL FOR
    SRI: NASIR ALI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
STATE BY THE SHESHADRIPURAM
POLICE STATION, BENGALURU
PIN CODE - 560 020
(REP BY SPP OF HIGH COURT
OF KARNATAKA, BENGALURU)
                                             ... RESPONDENT

(BY SRI: V.S. HEGDE - SPP II FOR SRI: SHANKAR H.S., HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.57/2020 REGISTERED BY SESHADRIPURAM POLICE STATION, BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION 20(B) OF NDPS, ACT.

IN CRL.P.NO.9846/2021

BETWEEN:

NAGANATH NIRANJANAPPA SHETTIGAR S/O. LATE NIRANJANAPPA SHETTIGAR AGED ABOUT 39 YEARS R/AT JIMAGI VILLAGE AND POST SANTAPURA HOBLI, AURAD TALUK BIDAR DISTRICT - 585 326.

(NOW IN JUDICIAL CUSTODY, CENTRAL PRISON, BANGALORE ) ... PETITIONER

(BY SRI: HASMATH PASHA, SENIOR COUNSEL FOR SRI: NASIR ALI, ADVOCATE)

AND:

STATE OF KARNATAKA BY SHESHADRIPURAM POLICE STATION BANGALORE CITY - 560 020.

(REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE) ... RESPONDENT

(BY SRI: V.S. HEGDE - SPP II FOR SRI: SHANKAR H.S., HCGP)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.57/2020 OF SESHADRIPURAM P.S., BENGALURU CITY FOR THE OFFENCE PUNISHABLE UNDER SECTION 20(B)(C) OF N.D.P.S. ACT ON THE FILE OF THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPL.COURT FOR NDPS CASES.

THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED ON 18.02.2022, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE FOLLOWING:

COMMON ORDER

The petitioner in Criminal Petition No.305 of 2021 is

accused No.3 and the petitioner in Criminal Petition No.9846

of 2021 is accused No.2 in Crime No.57 of 2020 of

Seshadripuram Police Station, Bengaluru, registered on the

basis of first information lodged by the informant

Sri.Krishnamurthy M L, which is now pending in

Spl.C.C.No.188 of 2021 on the file of XXXIII Additional City

Civil and Sessions Judge and Special Judge for NDPS cases,

Bengaluru, for contravening Section 8(c) punishable under

Section 20(b)(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'the NDPS Act').

2. The case of the prosecution in brief as set out in

the charge sheet is that on 30.08.2020 at about 10.15 a.m.,

CW1 - the informant received credible information that

accused No.5 is possessing ganja and is near BBMP

playground on the backside of Om Shakti Temple, VV Giri

Colony and selling the contraband to the general public in his

autorickshaw bearing registration No.KA-02 AC 3989. The

said information was reduced into writing in the station house

dairy and sought permission from CW13 - the Assistant

Commissioner of Police to hold a raid and to seize the

contraband. After getting necessary permission, CW1 along

with other staff and panchas held a raid. CW13 being the

Gazetted Officer was present at the spot and the personal

search of accused No.5 was held in his presence. During such

search 2.100 kgs of ganja, Rs.1,500/- in cash and a bag along

with the auto rickshaw mentioned above were seized under

the seizure mahazar. On enquiry, accused No.5 gave

information that he used to purchase ganja as the same was

being supplied to him by accused No.4.

3. On 06.09.2020 CW1 along with other witnesses

went to Madanayakanahalli of Tumkur District, took accused

No.4 to his custody and 200 grams of ganja was also seized

from his custody. On enquiry, accused No.4 informed that he

along with accused Nos.2 and 3 had concealed 150 kgs of

ganja in a place dug out which is 8 kms away from Mahagav

on the right side of NH 50 leading from Kalaburagi to Bidar,

within the jurisdiction of Kamalapura Police Station.

Accordingly, accused No.4 led the police to the spot and

produced 150 kgs of ganja before the police, in the presence

of mahazar witnesses on 08.09.2020.

4. It is the further contention of prosecution that

accused No.4 further stated that he can identify accused

Nos.2 and 3 and accordingly, identified them when they were

near Moodboll Tollgate near Chittapura. Accordingly, accused

Nos.2 and 3 were also taken into custody. Accused Nos.2 and

3 have informed that they were purchasing ganja from

accused No.1 and used to store in an underground storage

dug in Sy.No.214/2B of Kalagi Taluk of Kalaburagi District

situated in Lachu Nayak Thanda belonging to Smt.Manibai.

Accordingly, accused Nos. 2 and 3 led the Investigating

Officer and the mahazar witnesses to the said place and

showed the underground storage where 1,200 kgs of ganja in

600 packets (i.e., 2kgs each) were stored. The said

contraband was seized after collecting the sample and the

canter bearing registration No.AP-22/X-5948 which was used

for transportation of ganja was also seized under the

mahazar. It is stated that accused No.1 used to supply ganja

from Orissa to accused Nos.2 and 3 which was in turn being

transported in the canter referred to above belonging to

accused No.2 and being stored in the underground storage in

Sy.No.214/2B belonging to Manibai who is the grand mother

of accused No.3 and thereafter, the contraband was being

transported to Bengaluru and other places with the help of

accused Nos.4 and 5 for the purpose of selling it to general

public and thereby all the accused have contravened Section

8(c) punishable under Section 20(b)(C) of NDPS Act.

5. Accused Nos.2 and 3 are before this court filing

two separate petitions, seeking to enlarge them on bail under

Section 439 Cr.P.C.

6. Heard Sri.Hashmath Pasha, learned senior counsel

for Sri.Nasir Ali, learned counsel for the petitioners and Sri.V

S Hegde, learned Special Public Prosecutor-II for Sri.H S

Shankar, learned High Court Government Pleader for the

respondent-State. Perused the materials on record.

7. Learned senior counsel for the petitioners-accused

Nos.2 and 3 submitted that even according to the case of

prosecution, these petitioners were apprehended on

09.09.2020 at about 1.00 p.m. near Moodboll Tollgate.

Admittedly, no contraband were seized from their possession.

It is also the contention of prosecution that accused no.4 had

given voluntary statement and had led the Investigating

Officer to produce the contraband concealed by him. The so-

called seizure of the commercial quantity of ganja was, if at

all at the instance of accused No.4, but not at the instance of

these petitioners. The petitioners are the residents of distant

places. The underground storage said to be situated in

Sy.No.214/2B in Lachu Nayak Thanda, of Kalagi Taluk of

Kalaburagi District does not belong to any of the petitioners.

Even the vehicle said to have been seized from the spot also

do not belong to the petitioners. There is absolutely no

material to connect the petitioners to the offence in question.

The petitioners are in judicial custody for more than 15

months and the investigation is already completed and the

charge sheet is also filed. Detention of the petitioners in

custody would amount to pre-trial punishment. They are not

having any criminal antecedents and are ready to abide by

any of the conditions that would be imposed by this Court.

8. Learned senior counsel on the basis of IA.1 of

2022 wherein additional grounds for grant of bail was urged,

contended that the voluntary statements of the petitioners

dated 09.09.2020 have not been produced before the Special

Court on that date or immediately thereafter. But the same

were produced on 18.09.2020 i.e., after about 9 days.

Serious doubt arises about the conduct of the Investigating

Officer in not producing the voluntary statements and the

mahazars before the Special Court, forthwith. He further

contended that even though it is alleged that the petitioners

were apprehended on 09.09.2020 near Moodboll Tollgate,

Chittapura, and their voluntary statements were recorded, the

remand report discloses that these petitioners were

apprehended on 10.09.2020 at 6.30 a.m. There are serious

contradictions and inconsistencies in the case made out by the

prosecution, which goes to the root of the matter.

9. Learned senior counsel also submitted that no

local police were informed about the search and seizure said

to have been conducted and the seized contraband were

never produced before the jurisdictional Magistrate. Even if

the case of the prosecution that the petitioners were knowing

about the storage of contraband in the underground storage,

the same will not amount to possession of the contraband.

There is no recovery of incriminating materials at the instance

of these petitioners. Under such circumstances, there are no

prima facie materials against the petitioners to constitute any

of the offences. Therefore, the petitioners are entitled for

grant of bail, in the interest of justice. Accordingly, he prays

for allowing the petitions.

10. Per contra, Sri.V S Hegde, learned Special Public

Prosecutor-II for Sri.H S Shankar, learned High Court

Government Pleader opposing the petitions submitted that

initially accused No.5 was apprehended and the contraband

weighing 2.100 kgs was recovered from his possession. On

the basis of information provided by him, accused No.4 was

apprehended and 200 grams of ganja was recovered at his

instance. On the basis of information provided by accused

No.4, 150 kgs of ganja was seized and thereafter accused

Nos.2 and 3 who are the petitioners herein were

apprehended. On the basis of the information provided by

them, huge quantity of 1,200 kgs of ganja were recovered.

All these accused categorically stated that it was accused No.1

who was supplying the ganja, which was being stored by

accused Nos.2 and 3 in the underground storage and they

used to supply to accused No.4 who in turn used to store in

the isolated places and used to supply to accused No.5 to sell

the same to the general public. Commercial quantity of ganja

weighing 1352.300 kgs were recovered at the instance of all

the accused in the present case at various places. There are

sufficient materials to prima facie prove seizure of 1,200 kgs

of ganja at the instance of these petitioners from the

underground storage and the canter bearing registration

No.AP-22/X-5948 was also seized by these petitioners as the

same was used to transport the contraband, which was found

at the spot. The land in question where the underground

storage was found with the commercial quantity of ganja

belongs to the grand mother of accused No.3. The facts and

circumstances of the present case discloses that all the

accused are involved in the commission of offence since long

and they are systematically dealing with drugs after storing

the same in the underground hide out to enable them to

distribute it to others in smaller quantity. The procedure

contemplated under law is followed by the Investigating

Officer and the charge sheet is also laid before the Trial Court.

Since there are reasonable grounds to believe that the

accused has committed the offence and there is every

possibility of they committing the offence, if enlarged on bail,

the petitioners are not entitled for grant of bail in view of

Section 37(1)(b)(ii) of NDPS Act.

11. Learned Special Public Prosecutor-II further

contended that strong prima facie materials are placed before

the Court to constitute reasonable grounds to believe the

commission of the offence and unless the Court is of the

opinion that the accused are not guilty of such offence and

they are not likely to commit any offence while on bail, there

are not entitled for grant of bail. The facts and circumstances

of the case makes out reasonable and strong prima facie

grounds against the accused for having committed the

offence. Therefore, they are not entitled for grant of bail.

12. Learned Special Public Prosecutor-II further

submitted that the Investigating Officer followed the

procedure as contemplated under law. Apprehending the

accused, recording their voluntary statements and seizing the

contraband at their instance, the statements and the

mahazars were drawn by the Investigating Officer at each

stage of the investigation and the same were reported to the

Special Court on regular intervals. It is premature for the

accused to contend that there is delay in submission of the

statements and mahazars before the Special Court. There is

absolutely no delay in submission of the mahazar before the

Special Court and the petitioners cannot take advantage of

the procedural lapses, if any at this stage.

13. Learned Special Public Prosecutor-II further

submitted that even though the petitioners were shown to be

apprehended on 10.09.2020, the material on record discloses

that they were taken into custody on 09.09.2020 at 1.00

p.m. in Moodboll Tollgate near Chittapura and thereafter, they

led the Investigating Officer and the mahazar witnesses to the

land belonging to Manibai and produced huge quantity of

ganja which were stored in the underground storage after

completing the procedure of seizing such a huge quantity of

ganja from the isolated place in Sy.No.214/2B situated in

Lachu Nayak Thanda of Kalagi Taluk, Kalaburagi District and

after completing the procedure of drawing the mahazars and

collecting the sample etc., the accused were brought to the

Special Court and produced before it in accordance with law.

If the distance between the places, quantity of contraband

seized at the instance of each of the accused and the facts

and circumstances of the case where many accused are

involved in the commission of offence are to be taken into

consideration, there is absolutely no delay in producing the

accused and the mahazars before the Trial Court. He further

contended that this Court cannot conduct mini trial at this

stage about these procedural aspects ignoring the strong

prima facie materials which give rise to the reasonable

grounds to prove commission of the offence by the accused

and disentitles them from seeking bail in view of Section

37(1)(b)(ii) of NDPS Act. Accordingly, he prays for dismissal

of both the appeals.

14. In view of the rival contentions urged by the

learned counsel for the parties, the point that would arise for

my consideration is:

                  "Whether      the   petitioners   are
             entitled for grant of bail under Section
             439 of Cr.P.C.?"

My answer to the above point is in 'Negative' for the

following:

REASONS

15. Initially, FIR came to be registered on 30.08.2020

in Seshadripuram Police Station in Cr.No.57 of 2020 for the

offence punishable under Section 20(b) of NDPS Act on the

basis of credible information received by the Investigating

Officer and apprehending accused No.5 along with the

autorickshaw bearing registration No.KA 02 AC 3989 in VV

Giri Colony, Seshadripuram, Bengaluru along with 2.100 kgs

of ganja. Thereafter, the investigation was undertaken

wherein accused No.4 was apprehended based on the

information provided by accused No.5 and it is stated that 200

grams of ganja has been recovered from him. It is also

stated that the voluntary statement of accused No.4 was

recorded on 07.09.2020 and on the basis of same, he led the

Investigating Officer and the mahazar witnesses to Mahagav

which is on NH 50 leading from Kalaburagi towards Bidar. The

seizure mahazar discloses that the Investigating Officer along

with accused No.4 and mahazar witnesses left the police

station at 4.00 p.m. and thereafter proceeded to Kalaburagi to

reach there at 8.00 a.m. on 08.09.2020. Accused No.4 asked

to stop the vehicle about 8 kms away from Mahagav on NH50

at 9.30 a.m. and shown a ditch/trench which was 8 feet in

depth and produced 6 bags of ganja. The total ganja

recovered at the instance of accused No.4 was 150 kgs from

out of 6 bags. Samples were drawn separately and the

mahazar was drawn on 08.09.2020 from 9.30 a.m. to 12.30

noon. Another seizure mahazar dated 09.09.2020 discloses

that with the help of accused No.4, accused Nos.2 and 3 were

identified near Moodboll Tollgate near Chittapura and they

were taken into custody on the same day at 1.00 p.m.

Accused Nos.2 and 3 were also subjected to interrogation who

have given the information that they have stored ganja in a

place which is about 40 to 50 kms away from the

jurisdictional Magistrate and therefore, the Investigating

Officer specifically stated that it was not feasible to obtain

search warrant from the jurisdictional Court as there is

possibility of information leakage. Accused Nos.2 and 3 led

the Investigating Officer and the panchas to Sy.No.214/2B

belonging to one Manibai which is a sheep farm. Accused

Nos.2 and 3 removed the mud in the sheep shed, opened an

iron lid and both of them get into the cellar. It was found that

the accused have stored 1,200 kgs of ganja in the said

storage which was stored in 600 bags of 2 kgs each and were

recovered at the instance of accused Nos. 2 and 3 under the

mahazar. It is revealed that accused No.1 was supplying

ganja from Orissa to accused Nos.2, 3 and 4 who in turn used

to store the same in the underground storage/hideout/trench

and used to further distribute/sell to various other persons.

During investigation, it was revealed that accused No.2 used

to transport the contraband in the canter vehicle bearing

registration No.AP-22/X-5948 and the accused have stored

the contraband in the cellar dug out in Sy.No.214/2B

belonging to Smt.Manibai who is the grandmother of accused

No.3. These accused through accused No.5 were transporting

and selling the ganja in Bengaluru and other places and

thereby, involved in the commission of offence and were

found in possession of commercial quantity of ganja which is

punishable under Section 20(b)(C) of NDPS Act.

16. Considering the fact that the credible information

was first received in Seshadripuram Police Station on

30.08.2020 and the FIR was registered, accused No.5 was

apprehended along with the contraband. On the basis of

information provided by accused No.5, accused No.4 was

apprehended in Bengaluru and 200 grams of ganja was seized

from his possession. He gave information about accused

Nos.2 and 3 and also about storing of 130 to 150 kgs of ganja

in Mahagav in a trench covered with bushes and offered to

lead the police to produce the same. It was thereafter

accused No.4 led the police to Kalaburagi and produced 150

kgs of ganja which was recovered under the recovery

mahazar. It was thereafter accused No.4 identified accused

Nos.2 and 3 and the Investigating Officer took accused Nos.2

and 3 to his custody, who in turn disclosed the information

about storage of huge quantity of ganja in the underground

storage and led the police to the said place. Accordingly, the

seizure mahazar dated 09.09.2020 was drawn from 14.00 to

18.00 hours. This mahazar discloses that it was accused

Nos.2 and 3 who have led the police to the spot in question,

removed the mud which covered the iron lid in a sheep shed.

When the iron lid was opened by accused Nos.2 and 3, it led

to a cellar where the accused have stored 1,200 kgs of ganja.

The material on record discloses that accused Nos.2 to 4 were

brought back to Bengaluru and they were produced before the

Special Court on 10.09.2020. These facts and circumstances

discloses that lengthy and tedious procedures were

undertaken in unearthing the storage of huge quantity of

ganja at the instance of various accused persons at various

places. It is pertinent to note that accused No.1 who is said

to be the main accused, who used to supply ganja to accused

Nos.2 to 5 from Orissa, is still absconding.

17. If the contention of the prosecution and the

accused are considered in the light of these facts and

circumstances, I am of the opinion that reasonable materials

are placed before the Court to support the contention of the

prosecution that accused Nos.2 and 3 who are the petitioners

herein were apprehended at the instance of accused No.4 and

they led the Investigating Officer to recover 1,200 kgs of

ganja from the underground storage along with the vehicle

bearing registration No.AP-22/X-5948 used in the commission

of offence. The Investigating Officer placed sufficient material

to make out a strong prima facie grounds regarding

commission of the offence.

18. Even though the learned senior counsel for the

accused contended that there is a delay in submitting the

mahazar and producing accused Nos.2 and 3 before the

learned Magistrate and that there is serious discrepancies and

contradictions in the case made out by the prosecution, the

same will not lead to a conclusion that the prosecution has

fabricated the documents against the accused. Even if there

is delay in production of petitioners and the mahazars before

the Trial Court, the same is to be explained by the

Investigating Officer before the Special Court. The facts and

circumstances of the case where huge quantity of ganja

weighing 1352.300 kgs were recovered at various places at

Bengaluru, and also at Kalaburagi district which is at a far off

place and when it is found that the contraband was concealed

in underground bunker in a systematic manner, in as many as

600 bags of 2 kgs each, the same cannot be considered lightly

by diverting the attention towards the so-called delay in

producing the accused and the mahazars before the Trial

Court. There are no glaring inconsistencies in the case made

out by the prosecution nor there is inordinate delay in

production of accused or submitting the mahazars. It is for

the Investigating Officer to convince the Trial Court about the

procedural delays if any, during trial. But the fact remains

that there are reasonable grounds made out by the

prosecution to connect the accused to the offence in question.

19. Even though it is contended that since there is a

delay in submitting the seizure mahazar before the Special

Court, it is to be held that those mahazars were concocted by

the Investigating Officer against these petitioners. But the

position of law is clear in view of Section 114(e) of the Indian

Evidence Act, where the presumption is provided for

presuming that the official acts have been regularly

performed. Therefore, this is not the stage for doubting or

finding fault with the Investigating Officer, even if there is

some delay in submitting the mahazars before the Special

Court. This Court while considering the bail petition cannot

hold a mini trial about the procedural lapses to give a finding

as to whether there was deliberate delay on the part of the

Investigating Officer and whether there is concoction of any

documents. When strong prima facie materials are placed

before the Court without there being any glaring irregularities,

it is to be presumed that the official act on the part of the

Investigating Officer was performed regularly.

20. The contention raised by the learned senior

counsel for the petitioners that the procedures contemplated

under law are not followed by the authorized officer in holding

the search and seizure and as such the same is vitiated. In

this regard, the decision of the Hon'ble Apex Court in the case

of Supdt., Narcotics Control Bureau, Chennai Vs R

Paulswany is of importance to be taken into consideration.

The Hon'ble Apex Court opined that it would be too early to

take into account and judge the matter regarding non

compliance with the formalities, at the stage of considering

the bail application of an accused and held at para 6 as under:

"6. In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been pre-judged by the learned Single Judge at the stage of consideration for bail. The minimum which learned Single Judge should have taken into account was the factual

(2000) 9 SCC 549

presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in those two sections."

(Emphasis supplied)

21. The learned Special Public Prosecutor-II for the

respondent placed reliance on the decision of the Hon'ble

Supreme Court in the case of Dharam Deo Yadav Vs State

of UP2, wherein it is held that the expression 'custody'

appearing in Section 27 would not mean formal custody but it

includes any kind of surveillance, restriction or restraint by

the police. It is also held that even if the accused is not

formally arrested at the time when the accused gave the

information, the accused was for all practical purposes in the

custody of the police. The Hon'ble Apex Court placed its

reliance on its earlier decision in State of Andhra Pradesh

Vs Gangula Satya Murthy3 in support of its finding that if

the accused is within the ken of surveillance of the police

(2014) 5 SCC 509

(1997) 1 SCC 272

during which his movements are restricted, then it can be

regarded as custodial surveillance and therefore, so much of

information given by the accused in custody in consequence

of which a fact is discovered is admissible in evidence,

whether such information amounts to a confession or not.

22. The materials on record disclose that huge

quantity of ganja which is of commercial quantity was

recovered at the instance of the accused. It is the specific

contention of the prosecution that it was accused Nos.2 and 3

who are the petitioners herein, who led the police to discover

the storage of 1,200 kgs of ganja in 600 bags in a bunker,

along with the vehicle used in transportation of the same.

These materials cannot be ignored at this stage.

23. The materials on record constitute reasonable

grounds for believing that the petitioners are guilty of the

offence alleged. The manner in which the offence was

committed also reasonably leads to an inference that the

petitioners were involved in commission of the offence since

quite for sometime. Under such circumstances, it cannot be

believed that these petitioners are not guilty or that they are

not likely to commit any offence while on bail, which is a

condition precedent to enlarge the accused on bail as

provided under Section 37(1)(b)(ii) of NDPS Act. This view is

fortified by the dictum of the Hon'ble Supreme Court in the

case of State of Kerala and Others Vs Rajesh and

Others4, wherein, the Hon'ble Apex Court once again

considered the requirements of Section 37(1)(b) of the NDPS

Act, while dealing with the bail application filed by the accused

and referred to its earlier decision in the case of Union of

India Vs Ram Samujh and Another5 and held that the

satisfaction of twin requirements under Section 37(1)(b) is

sine-qua-non for grant of bail. It is appropriate to extract

paras 19 and 20 of the said judgment, which reads as under:

"19. 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 Cr.P.C, but is also subject to the limitation placed by Section 37 which commences with 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

(2020) 12 SCC 122

(1999) 9 SCC 429

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 offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. 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. 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 Cr.P.C, 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."

(Emphasis supplied)

Thus, the position of law is well settled that the

satisfaction of twin requirements as provided under Section

37(1)(b)(ii) of NDPS Act is sine-qua-non for releasing the

person accused of commission of offence involving

commercial quantity, even after providing opportunity to the

Public Prosecutor to oppose the application for such release.

24. In view of the discussions held above, I am of the

opinion that the prosecution is successful in placing

reasonable materials to constitute contravention of

Section 8 (c) punishable under Section 20(b)(C) of NDPS Act

against these petitioners. In view of these materials on

record, this Court is not satisfied that there are reasonable

grounds for believing that the petitioners are not guilty of

such offence and they are not likely to commit any offence

while on bail. On the other hand, the prosecution is

successful in placing materials which reasonably leads to a

belief that the petitioners are guilty of such offence and they

are likely to commit the offence if enlarged on bail.