BA2/17/2021
2021 Latest Caselaw 3874 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                 24th SEPTEMBER, 2021

        SECOND BAIL APPLICATION NO. 17 of 2021




Between:
Charan Singh S/o Sri Nathu Ram
                                              .......Applicant

and

State of Uttarakhand                          ...Respondent


Counsel for the Applicant   :    Mr. Abhishek Verma.



Counsel for the Respondent : Mr. P.S. Uniyal,
                             learned Brief Holder for the
                             State.

Hon'ble Alok Kumar Verma,J.

This second bail application has been filed for regular bail in connection with FIR No. 05 of 2020, registered with Police Station-Bhatrojkhan, District Almora for the offence under Section 20/22/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as, "the Act, 1985").

2. Facts, to the limited extent necessary, are that an FIR was lodged by Sub Inspector Devendra Singh Samant on 22.01.2020 at 05.17 hrs. with the allegations that when the informant was checking the vehicles along with other police personnel, at around 21.28 hrs. on 21.01.2020, a vehicle was coming from Janel Bridge side.

Torch light indicated to stop that vehicle. The number of that vehicle was HR 51 ACO930 and the colour was white. The present applicant was driving that vehicle. The vehicle was searched by the police. Two plastic bags were found on the back seat of that vehicle. Those plastic bags were full of green dry grass like material. The driver was questioned in relation to the recovered Ganja. During search, 34.520 Kg. illegal Ganja was recovered from the possession of the applicant. The bags were sealed on the spot. Arrest memo and an inventory were prepared on the spot. Due to cold night, no public witness could be found. The sample from the recovered contraband was taken before the court concerned and sent to the Forensic Science Laboratory. According to the report of the Regional Forensic Science Laboratory, Rudrapur, District Udham Singh Nagar dated 07.03.2020, the tested material was Ganja, i.e. the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. After completion of the investigation, the charge-sheet is submitted.

3. Heard Mr. Abhishek Verma, the learned counsel for the applicant and Mr. P.S. Uniyal, the learned Brief Holder for the State.

4. Mr. Abhishek Verma, the learned counsel for the applicant, submitted that the applicant has been implicated in this matter; the F.I.R. was lodged after a delay of seven hours; the trial has been commenced and the applicant is in judicial custody since 22.01.2020.

5. Mr. P.S. Uniyal, the learned Brief Holder for the State, opposed the bail application and submitted that the present second bail application is not maintainable.

6. Earlier, at the time of hearing of the first bail application, the learned counsel for the applicant had submitted that the recovered material was not Ganja; there was no public witness; the provision of Section 50 of the Act, 1985 had not been complied with; the applicant has no criminal history and he is in custody since 21.01.2020.

7. On 17.06.2020, this Court had made the following order:-

"6. As per the Table prepared in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 1000 gram of Ganja is small quanity and greater than 20 Kg. is commercial quantity (Entry No.55).

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. At this stage, it seems appropriate to notice the provisions of Section 50 and Section 37 of the Act, 1985. The provisions of Section 50 and Section 37 of the Act, 1985 are to the following effects:-

"Section 50:- Conditions under which search of persons shall be conducted-- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973.

(6) After a search is conducted under sub- section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

"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".

9. 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."

10. 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.

11. In the case of Makhan Singh vs. State of Haryana, (2015) 4 CCSC 1790, the Hon'ble Apex Court has held that compliance which Section 50 of the Act, 1985 will 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.

12. Considering the alleged Ganja was recovered from the bags, held by the applicant and not in his personal search, it can be said that the compliance of Section 50

of the Act, 1985 was squarely not applicable in the instant case.

13. The learned counsel appearing for the applicant submits that no public witness was taken by the police in the alleged recovery proceedings despite the alleged recovery was made on the Highway, therefore, this recovery cannot be presumed to be an impartial recovery and the applicant is in custody since 21.01.2020.

14. According to the FIR, the recovery was made at night and due to night and seclusion no public witness could be secured. Apart this, the law is well settled that the evidence of a public officer cannot be thrown only on the ground that he is a police officer.

15. The accusation in the present case is with regard to the 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 Criminal Appeal No(s) 154-157 of 2020 State of Kerala Vs. Rajesh and others, the Hon'ble Supreme Court has held on 24.01.2020 that the expression "reasonable grounds" means something more than prima facie grounds, and (ii) that 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 and clearly it is intended to restrict the powers to grant bail. To check the menace of dangers drugs and psychotropic substances flooding the market, the Parliament has provided that the person accused of the offences under the Act should not be released on bail during the trial

unless the mandatory conditions provided under Section 37 of the Act, 1985 are satisfied.

16. 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.

17. In Criminal Appeal No(s) 154-157 of 2020 (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.

18. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. 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.

19. In the light of the facts and circumstances of the present case, it cannot be said that mandatory conditions, as mentioned above, have been satisfied. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court. But, from the perusal of the evidences, collected during investigation so far, it prima facie appears that the applicant was involved in this offence. No reason is found to falsely implicate the applicant/accused person. Therefore, there is no good ground to release the applicant-accused person on bail at this stage. The bail application is liable to be rejected. The bail application is rejected accordingly.

20. It is clarified that the observations made regarding the bail application is limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case."

8. In State of Madhya Pradesh Vs. Kajad, (2001)7 SCC 673, the Hon'ble Supreme Court has held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law.

9. In State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, the Hon'ble Supreme Court has observed, ".....Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ......"

10. The applicant had opportunity to raise all his contentions on the previous occasion. The contention of the learned counsel for the applicant that the applicant is in judicial custody since 22.01.2020 would not amount to change in the circumstances.

11. Therefore, it is not open to the applicant to make successive bail applications even on the grounds already rejected by this Court earlier.

12. On overall consideration of the application and also in the fact that any change in circumstances is not established, after rejection of the first bail application on merit, I do not find any change in circumstances to entertain present second bail application. The second bail application does not deserve to be entertained.

Consequently, the present second bail application is rejected.

__________________ ALOK KUMAR VERMA, J.

Dt: 24th September, 2021 Mamta