Chand vs State Of Uttarakhand
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Uttarakhand High Court

Chand vs State Of Uttarakhand on 16 February, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                             Sri Justice Rakesh Thapliyal, J.

16th February, 2024

1st Bail Application No. 2425 of 2023

Chand. ................Applicant.

-Versus-

State of Uttarakhand. .........Respondents. Present:

Ms. Lata Negi, learned counsel for the applicant. Mr. Saurabh Pandey, learned Brief Holder for the State.

Upon hearing the learned counsel, the court made following Judgment: (Per Mr. Rakesh Thapliyal, J.)

1. Present applicant is seeking bail in relation to Case Crime No. 734 of 2022 for the offence punishable under Section 8/20/60 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), Police Station -

Kashipur, District Udham Singh Nagar.

2. It is submitted by the learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. It is alleged that applicant was selling the prohibited drugs (injections and pills), which according to the prosecution, was of commercial quantity.

3. It is submitted by the learned counsel for the applicant that present applicant is languishing in jail since 13.12.2022 and on 13.06.2023, charges were framed and there are total ten witnesses and uptill now, not a single witness has been examined. She further submits that apart from this case, applicant has been implicated only in one criminal case for the offences punishable

under Section 147, 323, 504, 506 IPC but no FIR for the offence punishable under Section of the NDPS Act is registered against him. She further submits that applicant is seeking bail on the ground that applicant is in incarceration and till date, no witness has been examined and there is no compliance of Section 100 (4) Cr.P.C., and further there is no public witness and there is no compliance of Section 50 NDPS Act and there is no possibility of trial to be concluded within a short period of time.

4. No doubt, the alleged contraband (medicines) which are recovered from the present applicant is of commercial quantity. In this case, since the investigation has already been concluded and trial is going on, therefore, this Court is of the view that since the applicant is in jail since 13.12.2022, the condition as stipulated under Section 37 of the NDPS Act can be dispensed with, at this stage, particularly, when the applicant has no criminal history in respect of offences punishable under NDPS Act.

5. Learned State Counsel has seriously opposed the bail application by saying that by virtue of Section 37 of the Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail.

6. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same reads as under:-

"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."

7. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine are that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

8. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, denial of bail does not give unfettered liberty to the prosecution to keep a person in custody without conducting a trial.

9. Learned counsel for the applicant further submits that the applicant, who has already spent one year in custody, is entitled for bail, particularly, when he has no criminal antecedents. In respect of the period of incarceration, which the applicant has suffered learned counsel for the applicant has placed reliance on the judgments rendered by the Hon'ble Supreme Court in the case of Mohd Muslim @Hussain v State(NCT of Delhi) 2023 SCC OnLine SC 352 and in the case of Rabi Prakash vs. The State of Odisha 2023 SCC OnLine SC 1109. In paragraph 4 in the case of Rabi Prakash (supra), the Hon'ble Supreme Court observed as follows:-

"As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent

- State has been duly heard. Thus, the 1st condition stands complied with. So far as, the 2nd condition re:

formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

10. Learned counsel for the applicant has also placed reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Dheeraj Kumar Shukla versus State of Uttar Pradesh, (2023) SCC OnLine SC 918, wherein, the Hon'ble Supreme

Court, while granting bail to the accused from whom 92 kgs Ganja was recovered, observed as under:-

"It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."

11. By placing reliance on the aforesaid judgments, learned counsel for the applicant submits that in the present case, out of total 10 witnesses, no witness has been examined as yet; the applicant is in jail since 13.12.2022, therefore, the condition, as stipulated under Section 37 of the Act, can be dispensed with, at this stage.

12. Having considered the submissions of the learned counsel for the applicant as well as Mr. Saurabh Pandey, Brief Holder for the State and in view of the observations made in the judgments, as relied upon by the learned counsel for the applicant, that the prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 32(1)(b)(ii) of the NDPS Act, there is no reason to keep the applicant behind the bars for an indefinite period. Further after taking into consideration the fact that the applicant has no criminal history, and he is in jail since for last more than one year and till date no witness has been examined, the conditions, as stipulated under

Section 37 of the Act, can be dispensed with at this stage. Therefore, without expressing any opinion on the merits of the case, this Court is of the view that the applicant deserves for bail. Accordingly, the Bail Application is allowed.

13. Applicant Chand is ordered to be released on bail subject to his furnishing a personal bond and two reliable sureties, each in the like amount, to the satisfaction of the Court concerned with the following conditions:-

i) Applicant shall attend the Trial Court regularly and he shall not seek any unnecessary adjournment.

ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case.

iii) Applicant shall not leave the country without previous permission of the Trial Court.

iv) In case the applicant is found to be involved in future in any other similar case, or misuses or violates any of the conditions imposed on him while granting bail, the prosecution is free to move an application for cancellation of bail.

__________________ Rakesh Thapliyal, J.

16.02.2024 SKS