Jeet Ram vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is accused of selling 3 kg 382 grams of cannabis to one Joseph Shobal in FIR No. 204/2019, dated 29.9.2019 registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' in short) at Police Station, Bhuntar, District Kullu. Petitioner is behind the bars w.e.f. 6.10.2019. Through instant petition preferred under Section 439 of Code of Criminal Procedure, he has prayed for release on bail.

Heard learned Counsel for the parties and gone through the status report as well as the record produced by the respondent-State.

3(i) The prosecution case against the petitioner is that on 29.9.2019 a police party was on traffic inspection and patrolling duty at TCP, Bajaura, NH-21. At around 11:20 p.m. the patrolling party stopped a Volvo bus coming from Kullu and going towards Mandi side. The bus had 32 passengers. Their luggage was checked by the police personnel after associating the driver and conductor of the bus as independent witnesses. In that process, while the luggage of occupant of seat No. 16 was being checked, the passenger on the adjoining seat No. 17 was noticed as perplexed and was also seen trying to shift a hoody worn by him. This raised the suspicion of the patrolling party. His search was carried out in accordance with law, which led to recovery of 3 kg 382 grams of cannabis from a backpack held by him. The person disclosed his identity as Joseph Shobal belonging to Kerala. Recovery of contraband led to registration of the FIR in question.

3(ii) During investigation, Joseph Shobal disclosed having obtained the contraband in question from one Mohsin with whom he got acquainted during his previous trip to Manali about a year and half ago. Joseph Shobal through his mobile No. 7306489435 contacted this Mohsin on latter's mobile No. 8679112282. Mohsin assured providing cannabis to him through a person whose mobile No. was 7807703025. In lieu of the contraband in question, Joseph Shobal had made cash payment of Rs.4,80,000/-to Mohsin to be handed over to the user of mobile No. 7807703025. Whereafter Call Detail Reports were procured by the Investigating Agency pertaining to the three mobile numbers involved. The Call Details Reports revealed that calls were exchanged amontst these three numbers w.e.f. 26.9.2019 to 28.9.2019. However, before 26.9.2019 and after 28.9.2019, no call was exchanged involving these three mobile numbers. The mobile No. 7807703025 was found to be used by and in possession of Jeet Ram (bail petitioner). Whereafter he was also arrested in the instant FIR on 6.10.2019.

According to the status report, Mohsin has absconded and has not been traced by the investigating agency so far.

A previous bail application preferred by the petitioner was dismissed by learned Special Judge, Kullu on 15.6.2020. Another bail application, Cr.MP(M) No. 926 of 2020 filed by the petitioner before this Court was withdrawn on 2.7.2020.

Learned Counsel for the petitioner strenuously argued that the status report filed by the respondent before the learned trial Court is at variance with the status report filed in the instant case in as much as the status report filed before the learned trial Court stated that Joseph Shobal had named one Dharam Chand as supplier of contraband and not the present bail petitioner Jeet Ram. Learned Counsel also submitted that mobile number in question 7807703025 actually belonged to Dharam Chand and not to the petitioner. Therefore, he contended that present is a case of mistaken identity where petitioner has been falsely implicated.

Learned Assistant Advocate General strongly opposed the bail petition. He submitted that as per record, Joseph Shobal had disclosed procuring the contraband through Mohsin from a supplier whose mobile No. was 7807703025. Joseph Shobal had also disclosed that he was himself not aware about the identity of the supplier. On the basis of this disclosure by Joseph Shobal, Call Details Reports were collected by the Investigating agency of three mobile numbers in question i.e. belonging to Joseph Shobal, of Moshin and of No. 7807703025. The Call Detail Reports revealed that calls were exchanged amonst these three mobile numbers w.e.f. 26.9.2019 to 28.9.2019. The person who was using mobile sim no. 7807703025 was found to be the petitioner i.e. Jeet Ram. The mobile No. 7807703025 was actually in possession of the petitioner and was being used by him, even at the time when he was nabbed by the investigating agency. Calls from this sim number were made from IMEI No. 354182104158140 belonging to the phone used by the petitioner. The status report earlier filed before the learned trial Court at the initial stage of investigation, did not depict the correct position which emerged after the investigation of the case. At that stage only the identity from the Truecaller App was mentioned which reflected the name of person in whose favour mobile number 7807703025 was registered. Challan has been presented before the competent Court on 18.7.2020.

The record, inclusion of the zimni orders supports the submission of learned Assistant Advocate General. As per the record, the mobile No. 7807703025 was being used by the bail petitioner. As per status report, petitioner during investigation had admitted to growing, cultivating the cannabis crop and supplying it to Joseph Shobal through Mohsin for consideration of Rs.4,80,000/-. The contraband in question weighed 3 kg 382 grams, which falls in the commercial quantity notified under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act will be attracted, which 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."

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. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, 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 socio-economic 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."

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 nonobstante 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 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 s indeed uncalled for."

In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in Section 37:-

(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 view of facts as have come out in the status report and the record, it cannot be said at this stage that there are no reasonable grounds to believe that petitioner is not guilty of the offence of selling 3 kg 382 grams of cannabis. Status report also indicate a previous case No. 94/2019 registered against the petitioner under Section 20 of the NDPS Act.

Therefore, there is no merit in the bail petition, which is dismissed at this stage reserving liberty to the petitioner to file fresh petition at an appropriate stage in accordance with law, if so advised.

It is clarified that observations made above are confined only to the adjudication of instant petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations.