Dharmendra Gendle vs State Of Chhattisgarh

This second application under Section 439 of the Code of Criminal Procedure has been filed by the applicant who is in custody in connection with Crime No. 757/2022 registered at PS Civil Lines, Bilaspur, District Bilaspur, CG for the offence punishable under Sections 21, 22 and 29 of the NDPS Act. The first application being MCRC No. 9377/2022 was dismissed on merits, vide order dated 30.11.2022.

Case of the prosecution in short is that the applicant was found in illegal possession of 108 pieces of Onrex Syrup, and thereby committed the offence alleged.

Counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the case. According to the counsel for the applicant, there is no recovery at the instance of the applicant, that he has been arrested after two months on the memorandum of co-accused who is his wife and that though there is criminal antecedent against him but at that time he was a juvenile and therefore the provisions of Section 37 of the NDPS Act would not be attracted. He further submits the seizure witnesses have been examined but not supported the case of the prosecution. He further submits that the applicant is in jail since 12.09.2022, and that the trial may take some time for conclusion, therefore, he may be released on bail.

State counsel opposes the application for bail and submits that though the seizure witnesses have not supported the case of the prosecution yet it cannot be said that the prosecution cannot prove its case as the investigating officer is yet to be examined and on the basis of his testimony also the conviction of the applicants can ensue, and being this the applicant is not entitled for bail.

To get bail in the cases under the NDPS Act involving of commercial quantity of contraband the accused has to first cross the hurdle of Section 37 of the NDPS Act.

Hon’ble the Supreme Court in the matter of NCB Vs. Mohit Aggrawal reported in 2022 SCC Online SC 891 has held 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 non obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (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 Criminal Appeal Nos. ………… of 2022 @

Petitions for Special Leave to Appeal (Criminal) No. 6128- 6129 OF 2021 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”5, 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” 6 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 Criminal Appeal Nos. ………… of 2022 @ Petitions for Special Leave to Appeal (Criminal) No. 6128-6129 OF 2021 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.”

Hon’ble the Supreme Court in the case of State of Kerala v. Rajesh and Ors. reported in (2020) 12 SCC 122 has held as below -

“19. 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 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.

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.”

The Hon’ble Supreme Court in the matter of Union of India Vs. Md. Nawaz Khan reported in 2021 (10) SCC 100 held as under:-

“26.What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab 17 , where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan 18 , this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

Though in this case from the statements of the seizure witnesses prima facie it appears that they have not supported the case of the prosecution yet at the same time until and unless the conditions stipulated in section 37 of the NDPS Act are satisfied, the accused may not be entitled for bail. Perusal of case diary goes to show that as many as 21 criminal cases have been registered against the present applicant and out of them 06 cases are pertaining to NDPS Act. In totality of the circumstances and looking to the entire material collected by the prosecution this Court finds it difficult to hold that the applicant has crossed the hurdle of section 37 of the NDPS Act. Being so, it is not a case where bail can be granted to the applicant and therefore the application is liable to be and is hereby rejected.

However, looking to the fact that the applicant is behind the bars since 12.09.2022, the trial Court is expected to conclude the trial expeditiously.