Ev Raj @ Aiv Raj vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is accused of selling 1.998 Kg of cannabis to Rakesh Kumar and Deepak Kumar and accordingly FIR No.25/2020 has been registered

against him and the other two persons on 17.02.2020 under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short

‘NDPS Act’) at Police Station Padhar, District Mandi. By way of the instant petition preferred under Section 439 of the Code of Criminal

Procedure, regular bail has been sought by the petitioner.

Heard learned counsel for the parties and gone through the status report.

The gist of the case against the petitioner is:-

3(i). On 17.02.2020, a Police Party while on routine patrolling and traffic duty at about 12:15 pm at Khaani Nala, District Mandi, stopped a bus bearing

No.HP 68A-0686 coming from Manali and going towards Kangra. Passengers occupying seat Nos.18 and 19 appeared perplexed raising the suspicion

of the police personnel. On inquiry, these two passengers gave their identities as Rakesh Kumar (Seat No.18) and Deepak Kumar (Seat No.19), both

belonging to State of Punjab. Search of their luggage was carried out in accordance with law. From a bag belonging to Deepak Kumar, 1.998 Kg of

cannabis was recovered, which led to registration of the FIR in question. The above mentioned two persons were arrested on 17.02.2020.

3(ii). During investigations, Deepak Kumar is stated to have disclosed about procuring the contraband in question, from a person known to him as

‘Guru’, on 17.02.2020 in a parking place in Mandi. For purchase of this contraband, he had allegedly made cash payment of Rs.1,10,000/- to

‘Guru’. Statedly after obtaining the contraband, he came to bus stand and met his companion Rakesh Kumar. After deliberations, both of them

boarded ‘New Prem Bus Service’ and started from Mandi alongwith their luggage, from which the contraband in question was eventually

recovered by the police on 17.02.2020.

3(iii). According to the status report, Deepak Kumar further disclosed that for procuring the cannabis from the bail petitioner, he remained in constant

touch with the petitioner on latter’s mobile numbers, viz. 85807-27703 and 70186-91211. The investigating agency is stated to have obtained the

CDR details of the aforesaid mobile numbers for proceeding further in the matter. The photograph affixed on CAF provided with CDR details of one

of the mobile number was stated to be belonging to Ev Raj @ Evu S/o Pritam Chand, i.e. bail petitioner. Efforts were made to trace his whereabouts,

but he was not found. Finally on 21.07.2020, the investigating agency was able to apprehend Ev Raj @ Evu at Gurahan while he was going from

Thalot to Murah Balichowki. Investigations were carried out from him as well. Petitioner statedly disclosed that he used to prepare the cannabis for

the purpose of selling to various customers. He met Rakesh Kumar and Deepak Kumar during 2019 Dussehra Festival and had given his name as

‘Guru’ to the other two accused persons. On 05.02.2020, Deepak Kumar had called the petitioner on Mobile No.70186-91211 from his (Deepak

Kumar’s) Mobile No.82647-75437, demanding two kilograms of cannabis. For this purpose, they thereafter remained in constant contact with

each other on phone. On 16.02.2020, the petitioner asked Deepak Kumar to meet him in Kullu Bus Stand alongwith the requisite money. Deepak

Kumar accordingly met the bail petitioner on 16.02.2020 at Kullu Bus Stand and handed him the demanded amount. On receipt of the amount,

petitioner assured him that two kilogram of cannabis will reach him near Mandi Bus Stand on 17.02.2020. On 17.02.2020, Deepak Kumar received a

call from the petitioner from Mobile No.85807-27703 (sim card of which is statedly registered in the name of petitioner’s wife), directing him to

come to Taxi Stand at Mandi. The cannabis in question was finally delivered by the petitioner to Deepak Kumar at Taxi Stand, Mandi. Petitioner

became aware of the arrest of Deepak Kumar and Rakesh Kumar on 18.02.2020 and therefore, apprehending his own arrest, switched off his mobile

phone. He was finally traced and arrested on 21.07.2020. The challan in the instant case has been presented before the learned Sessions Judge,

Mandi on 11.08.2020.

Learned counsel for the petitioner argued that the contraband in question was not recovered from the conscious possession of the bail petitioner,

rather it was recovered from the possession of accused Deepak Kumar and Rakesh Kumar. Petitioner has no role to play in the alleged possession

and recovery of the contraband. He further submitted that there is no evidence regarding the petitioner’s involvement with the alleged recovery of

the contraband. Learned counsel relying upon the judgments rendered in Cr.MP(M) No.595 of 2020, titled Budhi Singh Versus State of Himachal

Pradesh, decided on May 8, 2020; Cr.MP(M) No.299 of 2020, titled Satish Singh Versus State of Himachal Pradesh, decided on 29th June, 2020; and

Cr.MP(M) No.1152 of 2020, titled Joginder Singh Versus State of Himachal Pradesh, decided on

8.2020, prayed for releasing the petitioner on bail. Per contra, learned Additional Advocate General argued that at this stage, there is enough

evidence to reflect the involvement of the petitioner with the recovery of huge quantity of contraband in question. Therefore, considering the

provisions of Section 37 of the NDPS Act, petitioner does not deserve to be enlarged on bail.

As per the status report, the contraband cannabis weighing about 1.998 Kg was though recovered from the possession of Deepak Kumar and

Rakesh Kumar, however, the investigations carried out by the investigating agency, at this stage, prima-facie, do not rule out the involvement of the

bail petitioner in supplying the contraband to the aforesaid two accused persons. The status report records the factum of frequent calls having been

exchanged during the relevant period between the bail petitioner and Deepak Kumar. There is even reference of a call having been made from the

mobile number belonging to the wife of the bail petitioner to the mobile phone of Deepak Kumar allegedly used by the petitioner. Each case has to be

decided on its own facts. Considering the commercial quantity of cannabis involved in the case, rigors of Section

37 of the NDPS Act are attracted. Section 37 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 of 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.â€​

In this regard, Hon’ble Apex Court in AIR 2020 SC 721, State of Kerala Etc. Versus Rajesh Etc., held as under vide paras 19 to 21:-

“19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in

offences under NDPS Act. InU nion of India Vs. Ram Samujh and Ors. 1999(9) SCC 42,9 it has been elaborated as under: “7. It is to be borne in

mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused

commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting

deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a

hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing

in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment

under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa

[(1990) 1 SCC 95)] as under:

With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and

psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the

public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.

Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly

impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory

minimum imprisonment and fine.

To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act

should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the

aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful

socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law

in the spirit with which Parliament, after due deliberation, has amended.â€​

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.â€​

In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the aforesaid section:-

(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and

(ii) Petitioner is not likely to commit any offence while on bail.

In the facts of the instant case as have come out so far in the status report, at this stage, there are no reasonable grounds to believe that the petitioner

is not guilty of the offence alleged against him. Therefore, there is no merit in the instant bail petition, which is accordingly rejected, reserving liberty to

the petitioner to file fresh petition at an appropriate stage in accordance with law, if so advised. It is clarified that the observations made above are

only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Pending miscellaneous

application(s), if any, also stand disposed of.