Rajasthan High Court

Prahlad Sahai S/O Dhannaram vs The State Of Rajasthan on 24 March, 2022

Bench: Inderjeet Singh

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

  S.B. Criminal Miscellaneous 4th Bail Application No. 4286/2022

Prahlad Sahai S/o Dhannaram, Aged About 42 Years, R/o
Thothwalon Ki Dhani Ramsinghpura Bagru Dist. Jaipur (Presently
Confined At Central Jail Jaipur)
                                                                    ----Petitioner
                                     Versus
The State Of Rajasthan, Through Public Prosecutor
                                                                  ----Respondent

For Petitioner(s) : Mr. Dinesh Pareek For Respondent(s) : Mr. S.S. Ola, PP

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

24/03/2022

This Court while dismissing the Second Bail Application on

22.01.2021 (S.B. Criminal Misc 2nd Bail Application No.

13130/2020) passed the following order;

"1. The present second bail application has been filed by the petitioner under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No.126/2020 registered at Police Station Bagru, District Jaipur (West) for the offences under Sections 8/21, 22 of the NDPS Act (in FIR) and under Sections 8/21, 8/22 & 8/25 of the NDPS Act (in order).

2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that according to the seizure memo, 84 bottles of i-Relax Cough Linctus have been recovered from possession of the petitioner.

Counsel further submits that the quantity of recovered narcotic substance as per the seizure memo is only 6.7 grams which is less than the commercial quantity. Counsel further

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submits that neutral substance is liable to be excluded and that should be seen at the time of trial and prayed for grant of bail to the petitioner.

3. Learned Public Prosecutor assisted by the Investigating Officer as well as Drug Control Officer has opposed the bail application and submitted that 84 bottles of i-Relax Cough Linctus were recovered from the possession of the petitioner and the total weight of the recovered NDPS was found to be 10 kg 794 gram which is of commercial quantity. In support of submissions reliance has been placed upon the judgment passed by the Hon'ble Supreme Court in the matter of Hira Singh & Another Vs. Union of India & Another, Criminal Appeal No.722 of 2017 & other connected matters, decided on 22.04.2020, where in paras-10 & 11 it has been held as under:-

"10. In view of the above and for the reasons stated above, Reference is answered as under:

(I). The decision of this Court in the case of E. Micheal Raj (Supra) taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II). In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending

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drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;

(III).Section 21 of the NDPS Act is not stand-alone provision and must be construed along with other provisions in the statute including provisions in the NDPS Act including Notification No.S.O.2942(E) dated 18.11.2009 and Notification S.O 1055(E) dated 19.10.2001;

(IV). Challenge to Notification dated 18.11.2009 adding Note 4 to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act.

Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed.

11. The Reference is answered accordingly. The Intervener Application stands disposed of. Now, respective Appeals be placed before the appropriate Court taking up such matters for deciding the appeals in accordance with law and on merits and in light of the observations made hereinabove and our answer to the Reference, as above."

4. Reliance has also been placed on the judgment passed by the Hon'ble Supreme Court in the matter of State of Kerala Etc. Vs. Rajesh Etc., Criminal Appeal Nos.154-157 of 2020, decided on 24.01.2020, where in paras-20, 21 & 22 it has been held as under:-

"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 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

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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.

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 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.

22. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.

5. I have considered the submissions advanced by counsel for the petitioner as well as learned Special Public Prosecutor assisted by the Investigating Officer as well as Drug Control Officer and perused the judgments cited above as also the material on record.

6. So far as quantity of the allegedly recovered NDPS is concerned, the Hon'ble Supreme Court in the matter of Hira Singh & Anr. Vs. Union of India & Anr. (supra) has held that in case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration along with actual content by weight of the offending drug, while determining the "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances and taking that into consideration the allegedly recovered quantity of NDPS in the present case is a commercial quantity and further considering the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act,1985 in the light of

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the judgment of the Hon'ble Supreme Court in the matter of State of Kerala Etc. Vs. Rajesh Etc., (supra), in my view the petitioner has failed to make out a case for grant of bail under Section 439 Cr.P.C. and without expressing any opinion on the merits or demerits of the case as it may adversely affect the case of either party during trial, in the present facts and circumstances of the case I am not inclined to grant bail to the accused petitioner under Section 439 Cr.P.C.

7. Hence, this second bail application stands dismissed."

Counsel for the petitioner submits that the petitioner has

been falsely implicated in this matter. Counsel for the petitioner

submitted that the recovery witnesses and independent witnesses

have not supported the case of the prosecution during trial.

Learned Public Prosecutor has opposed the bail application.

In the facts and circumstances of the present case and

looking to the seriousness of the offence(s) alleged against the

petitioner and considering the fact that the second bail application

was dismissed considering the judgment passed by the Hon'ble

Supreme Court in the matter of Hira Singh, without expressing

any opinion on the merits of the case, no case is made out to