Baldev And Others vs State Of H.P

@JUDGEMENTTAG- JUDGEMENT

Virender Singh, J

The applicants have filed the present applications, under Section 439 of Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’) to release them on bail, during pendency of the trial, in case FIR No. 70 of 2023, dated 26.2.2023, under Sections 20 and 29 of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act”) registered with Police Station, Balh, District Mandi, H.P.

According to the applicants, they have been falsely implicated, in the present case, as they are innocent persons and have nothing to do with the case.

According to the applicants, case of the prosecution is fragile and imaginary. The story of the Police is concocted one, as, according to the applicants, they have no role to play, in the commission of the crime.

According to the applicants, they are respectable persons of the society and having deep roots in the society.

Highlighting the fact that weight of the contraband, received at SFSL, is different from the contraband, allegedly recovered at the spot, the applicants are trying to show that the story of the prosecution is under the clouds of mystery. In this regard, the applicants have also annexed the copy of SFSL report alongwith the bail application filed by applicant Suman Dass.

Applicant Suman Dass has earlier filed the bail application, before the Court of learned Special Judge, Mandi, H.P. However, the application was dismissed, vide order dated 3.6.2023. Thereafter, he has filed Cr. MP(M) No. 1777 of 2023, before this Court, which was dismissed as withdrawn, on 20.11.2023.

In addition to this, delay in trial has also been made a ground, by the applicants, to claim the relief of bail to them.

The learned counsel appearing for the applicants have given certain undertakings, for which, the applicants are ready to abide by, in case, ordered to be released on bail.

When, put to notice, Police has filed status report, disclosing therein that on 25.2.2023, PSI Rajat Rana, alongwith other police officials, was on patrolling duty, to collect the information regarding the crime. At about 11:00 p.m., I.O., alongwith other police party was present near Hanuman temple, Gutkar. The driver of the vehicle, in which the Police party was travelling, was driving the vehicle at slow speed, on the direction of the I.O. The I.O. noticed an Alto Car, bearing registration No. HP-65-7819, colour white, parked on the side of the road. Two persons were found sitting in the aforesaid car.

8.1 Since, the incident of thefts were increasing in the area, as such, the IO developed a suspicion in his mind, with regard to the said two persons that they might be carrying some stolen articles, in their possession.

8.2 On seeing the Police party, the driver, as well as, other occupants of the car, became perplexed, and driver of the vehicle made a futile attempt to start the vehicle, but, the keys of the vehicle were removed by the I.O.

8.3 Thereafter, independent witnesses were associated in the investigation and the vehicle was searched. On searching the vehicle, contraband (charas) weighing 1.111 kgs was found in a carry bag, kept in the car.

8.4 Thereafter, the FIR was registered and other codal formalities were completed. The contraband, so recovered, was sent to the FSL, Junga, from where positive report has been received. Thereafter, the Police has prepared and submitted the report, under Section 173(2) Cr. P.C., before the Court of learned Special Judge, Mandi, District Mandi. Cognizance has been taken by the learned Special Judge-II, Mandi, District Mandi. Charges were framed against the applicants and prosecution was directed to adduce evidence. Consequently, out of 21 witnesses, 11 witnesses have already been examined and 9 witnesses remained to be examined, and, the case is stated to be fixed for recording the evidence of other prosecution witnesses, on 2.5.2024.

8.5 According to the status report, against applicant Baldev Kumar, FIR No. 196 of 2016, dated 5.10.2016, under Sections 20 and 29 of the NDPS Act, has been registered with Police Station, Palampur, District Kangra, H.P., whereas, no case is stated to have been registered against applicant, Suman Dass.

On the basis of above facts, a prayer has been made to dismiss the application.

Learned counsel for the applicant has highlighted the fact that as per the report of FSL, Junga, weight of the contraband (charas) alongwith the polythene wrapper, was found to be 1.114 kg, and weight of polythene wrapper was found to be 0.008 kg. The actual weight of the exhibit, is stated to be 1.006 kg.

According to the learned counsel for the applicant, the contraband was weighed alongwith two carry bags, colour of one was stated to be white and colour of the other one was stated to be orange. As such, according to the learned counsel for the applicant, said two carry bags have also been weighed, and in case, the weight of carry bags is excluded from the weight of the contraband, then, the alleged contraband falls within the definition of ‘non-commercial quantity’. As per report of the FSL, actual weight of the exhibit was found to be 1.006 kg.

At this stage, there is nothing on record, which even probabilize the fact that the authorities of SFSL have weighed the carry bag, alongwith the polythene wrappers, as in the report, the only weight of polythene wrappers have been excluded, from the total weight of the exhibit. It is the question of fact, which has to be determined by the learned trial Court, on the basis of evidence adduced by the prosecution, as well as, the answers given by the witnesses, in the cross-examination, by the accused persons.

At this stage, only the prima-facie case is to be seen, and as per the document, annexed with the application, as well as, the stand taken by the Police in the status report, total weight of the contraband is 1.006 kg.

The contraband, allegedly recovered, in the present case, is ‘commercial quantity’. In this background, another question, which arises for determination before this Court, is with regard to the fact whether the relief, as claimed in the application, can be granted to the applicant, without satisfying the twin conditions, as enumerated in Section 37 of the NDPS Act. Answer to this question is in negative.

At this stage, there is nothing on record to enable this Court to hold that the accused persons have not committed the offence, for which they have been arrested, nor, it can be said that in case, they are released on bail, they may not commit any other offence. Without fulfilling the above conditions, relief of bail cannot be granted to them.

While deciding the question of relief, under Section 439 Cr. P.C., this Court cannot ignore the provisions of Section 37 of the NDPS Act, as held by the Hon’ble Supreme Court in Satpal Singh versus State of Punjab, reported in (2018) 13 Supreme Court Cases 813.

Relevant paragraph 14 of the judgment is reproduced, as under:

“14. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being entered, the order dated 21.09.2017 is only to be set aside and we do so.”

In a recent decision, in case titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444, the Hon’ble Supreme Court has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under:

“10. The provisions of Section 37 of the NDPS Act read as follows:

“[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.

It is evident from a plain reading of the nonobstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In “Collector of Customs, New Delhi v. Ahmadalieva Nodira”, (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus:-

“7. The limitations on granting of bail come in only when the question of granting bail arises on merits.

Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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.” [emphasis added]

The expression “reasonable ground” came up for discussion in “State of Kerala and others Vs. Rajesh and others” (2020) 12 SCC 122 and this Court has observed as below:

“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 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.” [emphasis added]

To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.”

So far as the arguments of learned counsel for the applicants, qua delay in trial, is concerned, out of 21 witnesses, 11 witnesses have already been examined, and only 9 witnesses remain to be examined. As such, keeping in view the pace of the trial, the judicial conscience of this Court is satisfied that the learned trial Court is conducting the trial, without any delay, in this case. As such, there is no occasion for this Court to accept the prayer, as made in the application.

Considering all these facts, the present bail applications are dismissed.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail applications.