Jaspreet Singh vs State Of Punjab

Raj Shekhar Attri, J

The petitioner has preferred the instant petition under Section 439 Cr.P.C. for grant of regular bail in case FIR No.03 dated 21.01.2016, registered

under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 at Police Station Nurmahal, District Jalandhar solely on the ground that

co-accused Manjit Singh has been granted bail by the Co-ordinate Bench of this Court vide order dated 06.02.2018 in Criminal Misc.No.M-350 of

2018.

Briefly stated, it is a case of the prosecution that on the secret information, one truck and car were intercepted by the police party. The truck was

driven by the petitioner. From the search of the said truck, it was noticed that a secret box had been made of steel sheets which was closed with the

help of nut bolts. On opening the said box, 15 plastic bags were recovered. Each bag contained 20 kg. poppy husk. However, the car was driven by

co-accused Manjit Singh. From the search of the car, five bags were recovered, containing poppy husk.

The Co-ordinate Bench of this Court vide order dated 06.02.2018 in Criminal Misc.No.M-350 of 2018 granted bail to co-accused Manjit Singh while

holding as under:-

“Keeping in view the facts that the petitioner is not involved in any other FIR; the period of custody; the long incarceration of the petitioner is a

circumstance in favour of the petitioner and keeping in view the fact that 13 PWs are yet to be examined, the Court feels that the trial is not likely to

be concluded in near future and the petitioner cannot be kept in incarceration for indefinite period for inaction of the State. Thus, without commenting

on the merits of the case, this petition is allowed. The petitioner be admitted to bail during the pendency of trial, on his furnishing bail bonds and two

local sureties to the satisfaction of trial Court/duty Magistrate concerned.â€​

This Court has heard the learned counsel for the petitioner as well as learned State counsel and have gone through the material available on the

record.

Undisputedly, the quantity of contraband involved in the present case of Narcotic Drugs & Psychotropic Substances is commercial quantity. Once the

quantity of contraband involved is commercial quantity, the mandate of Section 37 of NDPS Act comes into operation which reads as follows:-

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 27-A 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.

Thus, every offence punishable under the NDPS Act shall be cognizable. The power to grant bail to a person alleged to have committed offence

containing commercial quantity of contraband is subject to the restriction prescribed by sub-clause (b) of Sub-section (1) of Section 37 of the NDPS

Act, 1985. First of all, an opportunity to the Public Prosecutor has to be given to oppose the application for release of the accused. The other twin

conditions are (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the offence alleged to

have been committed; (ii) he is not likely to commit any offence while on bail. Thus, recording of satisfaction on both aspects is sine qua non to grant

bail in respect of offence punishable under Section 19 or Section 24 or Section 27-A and also offence involving commercial quantity.

Section 37(2) further provides that the limitations on granting bail specified in sub-clause (b) of Sub-section (1) are in addition to the limitation under

the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. As it appears from the language of Section

37(1)(b), the Court must adopt a negative attitude towards bail. At this juncture it will be profitable to refer to some of the decisions of the Hon'ble

Supreme Court.

The Hon'ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 held as under :

“As the provision itself provides that no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court

that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the

conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.

The expression used in Section 37(1)(b)(ii) is ""reasonable grounds"". The expression means something more than prima facie grounds. It connotes

substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to

existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the

offence charged.

The word ""reasonable"" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult to given an exact definition of the word ""reasonable.

“In Stroud's Judicial Dictionary, 4th Edn., p.-2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'.

Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he think. The reasoning

which built up the old scholastic logic sounds now like the jingling of a child's toy.

(See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar (SCC p. 504, para 7 )and Gujarat Water Supply and Sewerage Board v. Unique

Erectors (Gujarat) (P) Ltd. XXXXX

11.The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is

for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable

grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider

the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

12.Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some

materials to come to such a conclusion.

The Hon'ble Supreme Court in the case of Union of India v. Rattan Mallik @ Habul, (2009) 42 OCR (SC) 697, held as under:

The broad principles which should weigh with the Court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of

this Court and, therefore, for the sake of brevity, we do not propose to reiterate the same. However, when a prosecution/conviction is for offence(s)

under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, including an application for grant of bail,

these provisions cannot be ignored while dealing with such an application.

The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the public prosecutor

opposes the application for bail to a person accused of the enumerated offences under section 37 of the NDPS Act, 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 Cr.P.C. or

any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2)

that person is not likely to commit any offence while on bail.

In a recent judgment Hon'ble the Supreme Court in case Satpal Singh v. State of Punjab, 2018 AIR (SCW) 2011 has discussed in detail in para Nos.3

and 4 with regard to bail in commercial quantity of the contraband which read as under:-

“3. Section 37 of the NDPS Act reads as follows :-

“Offences to be cognizable and non-bailable â€" (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.]â€​ (Emphasis supplied)

Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences

involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for

such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that

the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the

antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any

other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on

the discretion available to the court while considering application for release of a person on bail.â€​

The instant case pertains to the commercial quantity. The aforesaid precedents have not been cited before the co-ordinate bench of this Court in

Criminal Misc.No.M-350 of 2018.

To the mind of this Court, the petitioner has failed to fulfil the conditions, as laid down under Section 37 of the Narcotic Drugs & Psychotropic

Substances Act, therefore, he is not entitled to the benefit of regular bail.

Accordingly, the instant petition stands dismissed.