Laxman Singh vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

For selling 52 grams of cannabis recovered from one Munshi Ram and possessing 1.416 kg of cannabis, the petitioner has been made an accused in FIR No.359/2016, dated 12.11.2016, registered at Police Station Nurpur, District Kangra, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').

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

The prosecution case against the petitioner in nutshell is that on 12.11.2016 at around 6:45 pm, 52 grams of cannabis was recovered by a police patrolling party from one Munshi Ram at Ladori, District Kangra. While effecting this recovery, the procedure prescribed in law was followed. During investigations, Munshi Ram statedly disclosed about having purchased the contraband in question from Laxman (petitioner), resident of Baghaigarh, Tehsil Churah, District Chamba. Whereafter, a police party was constituted and sent to Baghaigarh, District Chamba. The police party reached Baghaigarh in the wee hours of 13.11.2016 and after identification, search of the petitioner was carried out in accordance with law. During petitioner's search, 1.416 kg of cannabis was recovered from a bag held by him. Procedure in accordance with law was complied with. It is under such circumstances that the FIR in question has been registered against the petitioner as well as aforementioned Munshi Ram. Petitioner was arrested on 13.11.2016.

As per the prosecution case, from the conscious possession of the petitioner, 1.416 kg of cannabis was recovered. The quantity so recovered falls in the 'commercial quantity' notified under the NDPS Act, therefore, provisions 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."

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 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."

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."

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.

Learned counsel for the petitioner, in order to show that there are reasonable grounds to believe that the petitioner was not guilty of the offence alleged against him, has submitted that the trial of the case has progressed and during trial, PW3, PW4 and PW10 have not supported the case of prosecution. This, according to him, is sufficient for release of the petitioner on bail. The statements of these witnesses have also been placed on record. It is seen from the statements that the witnesses have admitted their signatures on various documents prepared during search and seizure. Therefore, solely relying upon selective parts of the statements of three witnesses, it cannot be said at this stage that there are reasonable grounds to believe that the petitioner was not guilty of the offence alleged against him, more so when the independent witness namely Guru alongwith various other prosecution witnesses are still to be examined. Therefore, at this stage, it cannot be said that the petitioner, who was found in possession of commercial quantity of 1.416 kg of cannabis, has satisfied the rigors of Section 37 of the NDPS Act.

Even otherwise, according to the status report and as has been submitted by learned Additional Advocate General, out of eighteen prosecution witnesses, ten have already been examined. Trial is still proceeding and is now fixed for today (04.09.2020) for evidence of remaining prosecution witnesses. In the facts and circumstances of the case, it will not be prudent to consider the case of petitioner for bail solely relying upon the selective parts of statements of some witnesses, when the trial is nearing its completion.

In view of the above, there is no merit in the instant petition, which is accordingly dismissed with liberty to the petitioner to file afresh at an appropriate stage in accordance with law, if so advised. Pending miscellaneous application(s), if any, shall also stand disposed of.