Mahesh Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

For jointly possessing 7.190 kg of cannabis, i.e. commercial quantity of contraband, the petitioner, alongwith two others, has been arraigned as an

accused in FIR No.15/2021, dated 19.02.2021, registered at Police Station Gohar, District Mandi, under Sections 20 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). Petitioner is in custody w.e.f. 19.02.2021 and by means of instant petition, prays for

enlargement on regular bail.

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

The prosecution case against the petitioner as per the status report is that:-

3(i). A police party was on routine patrolling duty on 18.02.2021 near a place called ‘Bara’ in District Mandi. At around 3:05 pm, it received a

secret information that three persons, namely Tara Chand, Jai Nand and Mahesh Kumar (bail petitioner) were sitting near a ‘Sarai’ below Mata

Lambodra Temple Devdhar alongwith huge quantity of cannabis kept in two bags, with an eye for potential customers and their search at that very

time could result in recovery of large quantity of cannabis. Since the secret information so received was reliable, therefore, immediately on its receipt,

the procedure as contemplated under Section 42(2) of the NDPS Act was complied with by the respondent and efforts were made for associating

independent witnesses in the raiding team. Finally, the Pradhan as well as Up-Pradhan of Gram Panchayat Kandi were involved as independent

witnesses.

3(ii). On reaching the spot in question, the raiding party noticed three persons sitting there with two of them holding bags. These three persons seemed

to be completely perplexed with the sudden appearance of police personnel. Initially, they tried to conceal the bags, but thereafter attempted to flee

from the spot alongwith the bags. They were given a chase by the police personnel and were eventually nabbed. On being questioned, these three

persons identified themselves and disclosed their details. Search of the bags held by them was carried out in accordance with law. Search of the bag

carried by Jai Nand led to recovery of 3.434 kg of cannabis, whereas search of the bag held by Tara Chand led to recovery of 3.756 kg of cannabis.

Thus, in all, 7.190 kg of cannabis was recovered. On the basis of this recovery, the FIR in question was registered on 19.02.2021. The petitioner was

arrested and is behind the bars w.e.f. 19.02.2021.

Learned counsel for the petitioner contended that no contraband was recovered from the conscious possession of the petitioner, who was a cousin

brother of accused Jai Nand. Learned counsel further contended that the petitioner is innocent and has been falsely implicated with the offences

alleged against him in the FIR in question. He prayed for release of the petitioner on regular bail by relying upon the judgments rendered by a Co-

ordinate Bench of this Court in Cr.MP(M) No.452 of 2021, titled Shammi Sood Versus State of Himachal Pradesh, decided on 22.3.2021, Cr.MP(M)

No.528 of 2021, titled Tinku Kumar Versus State of Himachal Pradesh, decided on 27.04.2021 and Cr.MP(M) No.760 of 2021, titled Davinder Singh

Versus State of Himachal Pradesh, decided on 3.5.2021.

Learned Deputy Advocate General strongly opposed the prayer for enlargement of petitioner on bail. He submitted that the petitioner, alongwith two

others, has been jointly accused of possessing commercial quantity of cannabis. Investigation in the case is still going on. The call detail record (CDR)

of the mobile numbers used by all the three accused in the FIR in question reveals number of calls exchanged by them amongst themselves till

18.02.2021. These CDR are still being examined. He further submitted that even the financial investigation under Section 68 of the NDPS Act is also

in progress in the FIR. Invoking Section 37 of the NDPS Act, learned Deputy Advocate General contended that petitioner is not entitled to bail.

Present is a case where the petitioner alongwith two other accused persons were found sitting alongwith two carry bags containing 7.190 kg of

cannabis. The weight of the contraband allegedly recovered from the accused persons falls in the ‘commercial quantity’ notified under the

NDPS Act, therefore, provisions of Section 37 of the NDPS Act are attracted. This section 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. 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.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€​

Each case for grant of bail has to be decided on the basis of individual facts of that case. 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.

As per the status report, investigation in the matter is still going on. The call detail record of the mobile numbers used by the three accused persons

including the petitioner reflects exchange of calls amongst them till 18.02.2021. This record is still being investigated for further links. In view of huge

recovery of contraband, financial investigation as per Section 68 of the NDPS Act is also underway. The petitioner was found present on the spot

alongwith the other two accused persons holding the bags containing commercial quantity of the contraband. As per the status report, a large quantity

of cannabis measuring 7.190 kg was recovered from joint possession of the accused persons including the petitioner. Therefore, it is for the petitioner

to prove his lack of knowledge or possession of this contraband. At this stage, it cannot be said that the petitioner was not guilty of jointly possessing

the recovered contraband. There is no material, on the basis of which, it can be said that there are reasonable grounds to believe that the petitioner

was not guilty of the offences alleged against him. Petitioner has failed to make out a case for grant of bail.

In view of the above, there is no merit in the instant petition, which is accordingly dismissed. Liberty is reserved to the petitioner to file a fresh petition

at an appropriate stage in accordance with law, if so advised. Pending miscellaneous application(s), if any, shall also stand disposed of.