Khem Raj vs Union Of India

Virender Singh, J

Applicant-Khem Raj has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing him on bail, during the pendency of trial, in case FIR No. 31 of 2022, dated 22nd April, 2022, registered under Sections 8, 20, 29 and 61 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’), at NCB Sub Zone Mandi, Himachal Pradesh.

According to the applicant, he has falsely been implicated, in this case, and has nothing to do with the offence, for which, he has been arrested by the police. The investigation, in the present case, is also stated to be complete and the challan has been filed in the Competent Court of law.

Since, the applicant is in judicial custody, as, it has been asserted in the application that no useful purpose would be served by keeping him in judicial custody. He has termed his custody as violation of his right under Article 21 of the Constitution of India.

To substantiate his stand, the applicant has relied upon the decision of the Hon’ble Supreme Court, in Special Leave to Appeal (Criminal) No. 1569 of 2021, titled as State By (NCB) Bengaluru versus Pallulabid Ahmad Arimutta & Anr., decided on 10th January, 2022.

The applicant has also tried his luck before this Court earlier, by moving CrMP (M) No. 2796 of 2022, which has been dismissed by this Court on 27th January, 2023.

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

When put to notice, the respondent has filed the status report, disclosing therein that the contraband was recovered on 22nd April, 2022, from the conscious possession of co-accused Sukhchain @ Kaka, s/o Sh. Sadi, r/o Samudhgarh, P.O. Kanargadh, P.S. Dhuri, Distt. Sangroor, Punjab; and Virender Mahendroo @ Sunny, s/o Prem Kumar, r/o H.No. 127, Gyani Zail, Singh Colony, Vill. Amargadh, Tehsil Malerkotla, Distt. Sangroor, Punjab, as such, the case vide NCB Crime No. 31/2022, has been registered against them.

7.1. It is the case of the respondent that accused-Sukhchain and Virender Mahendroo had disclosed the name of applicant-Khem Raj @ Hem Raj, as supplier of the contraband, as they had disclosed that they were instructed by one person, namely Laskar Singh, uncle of accused-Sukhchain Singh, who is stated to be absconding, to procure charas from Khem Raj @ Hem Raj (applicant). Accused- Sukhchain Singh and Virender Mahendroo had also disclosed the mobile number of the applicant as ‘80912 18693’ and that of receiver Laskar Singh as ‘62394 12587’. During the analysis of the CDRs of the accused persons, namely Khem Raj (applicant), Sukhchain Singh and Laskar Singh, it was found that they were in touch with each other. The CDR analysis report has been extracted, in the status report, as under:

Khem Raj (applicant) contacted Laskar Singh 14 times on the date of seizure of contraband, i.e. 22 nd April, 2022, and Laskar Singh contacted Khem Raj (applicant) 16 times.

Khem Raj (applicant) contacted Laskar Singh on his mobile phone once, on 28th January, 2022.

Khem Raj (applicant)contacted Sukhchain once, and Sukhchain contacted Khem Raj (applicant) once, on the date of seizure of the contraband.

The roaming status of his mobile phone shows his presence in the State of Himachal Pradesh during seizure of the contraband.

7.2. It is the further case of the respondent that during investigation, it has also been found that on the instructions of applicant, on 22nd April, 2022, an amount of ₹ 50,000/- was transferred from the account of Laskar Singh to the SBI Bank Account of Hira Lal, s/o Nok Singh, who is brother-in-law of the applicant. At the further instructions of the applicant, his brother-in-law has transferred this amount to Karam Singh, father of the applicant, on 27th April, 2022, by way of two transactions of ₹ 25,000/- each. This fact has been disclosed by Hira Singh (brother-in-law of the applicant), in his voluntary statement, recorded under Section 67 of the NDPS Act.

Mentioning the criminal history of the applicant, it has been contended on behalf of the respondent, that the applicant is a habitual offender, as a case, vide FIR No. 283 of 2017, under Sections 20 and 29 of the NDPS Act, has already been registered against the applicant in Police Station Sadar, District Mandi.

It is the further case of the respondent that earlier also, the bail application, filed by the applicant, has already been dismissed and there are no fresh grounds, enabling this Court to consider the present application. The case is now stated to be fixed for prosecution evidence on 23rd August, 2023.

Heavily relying upon the above facts, it has been prayed that the rigors of Section 37 of the NDPS Act are applicable, in this case, and, as such, the bail application is liable to be dismissed.

To obtain the relief, under Section 439 CrPC, the learned counsel appearing for the applicant has relied upon the decision of the Hon’ble Supreme Court in Criminal Appeal No. 1570 of 2021 {SLP (Crl.) No. 7085 of 2021}, titled as Mahmood Kurdeya versus Narcotics Control Bureau.

With due respect to the decision of the Hon’ble Supreme Court, the same, in no way, helps the case of the applicant, as, in the case before the Hon’ble Supreme Court, despite filing the charge sheet on 23rd September, 2018, charges had not been framed, whereas, in the present case, not only the charges have been framed, but, the case has been fixed for recording the prosecution evidence.

So far as the decision of the Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No. 11608 of 2022, titled as Junaid versus The State of Gujarat, is concerned, the FIR, in the said case, was registered in the year 2019, and, out of 41 witnesses, only three witnesses were examined, whereas, in the present case, this Court is satisfied with the pace of the trial.

The learned counsel for the applicant has also relied upon the decision of the Hon’ble Supreme Court in Special Leave Petition (Crl.) No. 915 of 2023, titled as Mohd Muslim @ Hussain versus State (NCT of Delhi).

With due respect to the decision of the Hon’ble Supreme Court in the said case, this Court is of the view that the same nowhere helps the case of the applicant, as, the accused before the Hon’ble Supreme Court, was in custody with effect from 3rd October, 2015. The relevant paragraphs 11 and 12 of the said judgment, are reproduced, as under:

“11. In this case, as it stands, the appellant has been in custody since 03.10.2015, barring grant of interim bail from time to time, for wedding ceremonies and to take care of his ailing mother. It was observed by this court, in State of Madhya Pradesh v. Kajad, (2001) 7 SCC 673, while commenting on Section 37 of the NDPS Act, that a “liberal” approach should not be adopted:

“Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail.”

This court has to, therefore, consider the appellant’s claim for bail, within the framework of the NDPS Act, especially Section 37. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, this court made certain crucial observations, which have a bearing on the present case while dealing with denial of bail to those accused of offences under the NDPS Act:

“On account of strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act an be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters.”

Even, if the facts of the present case are seen, in the light of the decision of the Hon’ble Supreme Court, as referred to above, the applicant could not succeed to bring his case within the purview of violation of Article 21 of the Constitution of India.

Even otherwise, in the case before the Hon’ble Supreme Court, only 30 witnesses were examined and 34 more witnesses were yet to be examined, whereas, in this case, FIR was registered on 22nd April, 2022 and the case is now fixed for 23 rd August, 2023, for prosecution evidence.

The accused (applicant), in the present case, has been arrested under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there in the NDPS Act in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 439 Cr.P.C. Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested for the offence, involving commercial quantity of contraband.

Once, it has been held that the contraband allegedly recovered from the possession of the accused falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then the rigors of Section 37 of the NDPS Act come into play.

The question, regarding the applicability of Section 37 of the NDPS Act, has been discussed by a three Judges’ Bench of the Hon’ble Supreme Court, way back in the year 2004, in cases, titled as Collector of Customs, New Delhi versus Ahmadalieva Nodira, reported in (2004) 3 Supreme Court Cases 549, and Narcotics Control Bureau versus Dilip Pralhad Namade, reported in (2004) 3 Supreme Court Cases 619. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under:

“9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

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 the present accused-respondent is concerned, are (1) 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 for 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 and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.

A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.”

The term ‘reasonable’ has elaborately been discussed by the Hon’ble Supreme Court, in case titled as Union of India versus Shiv Shanker Kesari, reported in (2007) 7 Supreme Court Cases 798. The relevant paras 8 to 11 of the judgment are reproduced, as under:

“8. 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 give an exact definition of the word “reasonable”.

“7. … In Strouds Judicial Dictionary, Fourth Edition, page 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 thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy.

(See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC 532].

“9. ...It is often said that "an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space". The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ‘the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined’.

It is not meant to be expedient or convenient but certainly something more than that.”

The word “reasonable” signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315).

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.”

This view has again been reiterated by the Hon’ble Supreme Court in a latest decision, in case titled as State of Kerala and others versus Rajesh and others, reported in (2020) 12 Supreme Court Cases 122. The relevant paras 18 to 21 of the judgment are reproduced, as under:

“18. 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:

‘24. 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 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.

We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.”

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 non-obstante 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.”

In view of the above, there is nothing, on the record, to give an occasion for this Court to hold, at this stage, that the twin conditions, as enumerated in Section 37 of the NDPS Act, are in favour of the applicant. In other words, at this stage, it cannot be said that the applicant has not committed the offence, nor, it can be said that if released on bail, he may not indulge in such type of activities.

So far as the judgment of this Court, in Pallulabid Ahmad Arimutta’s case (supra), relied upon by the applicant, in support of his case, is concerned, with due respect, the same, in no way, helps the case of the applicant, as, the factual position of the said case is different from the present case.

Even otherwise, while deciding the question of bail, it is the duty of the Court to maintain a delicate balance between individual liberty and larger interest of the society. Releasing a person involved in such a crime, will give a wrong signal to the society that the person, after being arrested, in such a crime, is still moving freely in the society.

Considering all these facts, there is no ground to pass any order in favour of the applicant, under Section 439 CrPC. Consequently, the bail application of the applicant is 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 application.