Uttarakhand High Court
"State vs Unknown on 4 May, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
BAIL APPLICATION NO. 779 OF 2020
In
CRIMINAL APPEAL NO.179 of 2020
4TH MAY, 2021
Between:
Vishva Kumar Garg ....Appellant
and
State of Uttarakhand ......Respondent
Counsel for the appellant : Mr. Karan Anand,
learned counsel.
Counsel for the respondent : Mr. J.S. Virk, learned
Deputy Advocate General
for the State.
The Court made the following :
ORDER : (per Hon'ble Sri Justice Alok Kumar Verma)
This application is filed for seeking bail in this
appeal.
2. The instant appeal has been filed by the appellant,
Vishva Kumar Garg, against the judgment dated
02.03.2020, passed by the learned Special Judge, N.D.P.S.
Act, Dehradun, in Special Sessions Trial No. 91 of 2015,
"State Vs. Vishva Kumar Garg", by which the appellant-
accused has been convicted, and sentenced to undergo 20
years rigorous imprisonment along with a fine of
Rs.2,00,000/- for the offence under Section 8(c)/20 (b) (ii)
(C) of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as, "the Act, 1985").
3. Heard Mr. Karan Anand, the learned counsel for
the appellant, and Mr. J.S. Virk, the learned Deputy
Advocate General, for the State and perused the record.
4. Mr. Karan Anand, the learned counsel for the
appellant, submitted that the prosecution has grossly failed
to prove its case beyond reasonable doubt; the said
recovered contraband was not sent with the seal of the court
to the Forensic Science Laboratory; the provisions of
Sections 42, 50 and 57 of the Act, 1985 were not complied
with; the Search Officer was senior to the Investigating
Officer. Therefore, the investigation was biased in nature;
the entries in regard to the contraband were missing in the
Malkhana Register; there was no public witness to the
alleged recovery; the appellant is in custody since
02.03.2020, whereas, he was on bail during trial.
5. On the other hand, Mr. J.S. Virk, the learned
Deputy Advocate General, opposed the bail application, and
submitted that on 21.05.2015, the informant Ms. Tripti
Bhatt, Incharge Assistant Superintendent of Police, a
Gazetted Officer, along with other police personnal were on
routine checking, received an information in respect of a
person carrying Charas. The appellant was apprehended. At
that time, a bag was in his hand. During the search of the
said bag, 7 kilogram 50 gram Charas was recovered from his
bag. After investigation, the charge-sheet was submitted.
The prosecution examined eight witnesses. After considering
the entire evidence on record, the learned trial court has
rightly convicted the appellant. Mr. J.S. Virk, further
submitted that the prosecution witness, Head Constable
Sohan Lal (PW6) proved the entries of the Malkhana
Register regarding the recovered contraband. The recovered
contraband was sent to the Forensic Science Laboratory with
the seal of the court. There are no circumstances, on record,
to suggest that the investigation was not properly carried
out. The place of recovery was open to the general public.
Therefore, Section 42 of the Act, 1985 would have no
application. The contraband was recovered from the search
of the bag of the appellant. Therefore, the provisions of
Section 50 are inapplicable to this case. In spite of the best
efforts, no independent witness could be secured. Apart
from this, the law is well settled that the evidence of a public
officer cannot be thrown out only on the ground that he is a
police officer. Further, the learned counsel for the State
submitted that this is the second conviction of the appellant.
Previously, he was convicted for offence under Section 8/20
(b) (ii) (C) of the Act, 1985 in Special Sessions Trial No. 22
of 2007. The learned counsel for the State submitted that
however, the appellant is on bail in his previous conviction;
his conviction is not stayed.
6. As per the Table prepared in terms of Section 2
(xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram of
Charas is small quantity, and greater than one kilogram is
commercial quantity (Entry No.23).
7. The preamble of the Act, 1985 shows that the
object of this Act is to consolidate and amend the law
relating to narcotic drugs, and to make stringent provisions
for the control and regulation of operations relating to
narcotic drugs and psychotropic substances etc.
8. In Criminal Appeal No. 585-586 of 2020,
"Sheru vs. Narcotics Control Bureau", on 11.09.2020,
the Hon'ble Supreme Court observed that "We have given a
thought to the matter and there is no doubt that the rigors
of Section 37 would have to be met before the sentence of a
convict is suspended and bail granted and mere passage of
time cannot be a reason for the same. ------".
9. At this stage, it seems appropriate to notice the
provisions of Section 37 of the Act, 1985. The provisions of
Section 37 are to the following effects:-
"Section 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, 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.
(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".
10. The accusation in the present case is with regard
to commercial quantity. Once the public prosecutor opposes
the application for bail to a person accused of the
enumerated offences, 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 Code of Criminal Procedure, 1973 or any
other enactment:
(i) the Court must be satisfied that there are
reasonable grounds for believing that the person
is not guilty of such offence. In State of Kerala
Vs. Rajesh and others, [AIR 2020 SC 721] on
24.01.2020 the Hon'ble Supreme Court has held
that the expression "reasonable grounds" means
something more than prima facie grounds.
(ii) the person is not likely to commit any offence
while on bail. It is the mandate of the legislature
which is required to be followed. The non-obstante
clause with which this Section starts should be
given its due meaning. Clearly, it is intended to
restrict the powers to grant bail.
11. In the case of State vs. Syed Amir Hasnain,
[(2002) 10 SCC 88], the Hon'ble Apex Court has held, "In
view of the two judgments of this Court in Union of India
vs. Ram Samujh, [(1999) 9 SCC 382] and Union of
India vs. Aharwa Deen, [(2000) 9 SCC 382], even the
High Court would be bound by the provisions of Section 37
of the NDPS Act and would not be entitled to release the
accused under the provisions of the NDPS Act unless the
provisions of Section 37 are satisfied."
12. In the case of Megh Singh vs. State of Punjab,
[2004 (1) CCSC 337], the Hon'ble Supreme Court held
that a bare reading of Section 50 shows that it only applies
in case of personal search of a person. It does not extend to
search of a vehicle or a container or a bag, or premises.
13. In the case of Makhan Singh vs. State of
Haryana, [(2015) 4 CCSC 1790], the Hon'ble Apex Court
has held that compliance with Section 50 of the Act, 1985
would come into play only in the case of personal search of
the accused, and not of some baggage like a bag, article or
container etc., which the accused may be carrying ought to
be searched.
14. In State of M.P. Vs. Kajad, [(2001) 7 SCC
673], the Hon'ble Supreme Court has held that negation of
bail is the rule, and its grants an exception under (ii) of
clause (b) of Section 37(1) of the Act, 1985.
15. In Rajesh and others (Supra) the Hon'ble
Supreme Court has held that liberal approach in the matter
of bail under the N.D.P.S. Act is uncalled for.
16. While dealing with an application for bail, there is
a need to indicate in the order, reasons for considering why
bail is being granted particularly when the appellant-accused
is convicted in a serious offence. Therefore, it is quite clear
that an order of bail cannot be granted in an arbitrary or
fanciful manner.
17. A ratio decidendi of the judgment of Hon'ble Apex
Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi
and another, [2018(1) CCSC 117] is that in serious
crimes, the mere fact that the accused is in custody for
more than one year, may not be a relevant consideration to
release the accused on bail.
18. In the present matter, the prosecution witnesses
have supported the case of the prosecution. At this stage,
detailed appreciation of evidence would affect the merits of
the case. If a strong prima facie ground is disclosed for
substantial doubt about the conviction, it may be ground to
grant the bail. However, such a ground does not appear in
the present case.
19. Therefore, the bail application has no merit; it is,
hereby, rejected.
20. But it is, hereby, clarified that the observations
made regarding the bail application are limited to the
decision of this bail application, as to whether the bail
application should be allowed or not. The said observations
shall not effect the merit of this appeal.
____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
_______________________
ALOK KUMAR VERMA, J.
Dt: 4th May, 2021
Neha
