Manoj Kumar vs State Of Himachal Pradesh

Sushil Kukreja, J

By way of instant petition, filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case FIR No. 103/2022, dated 04.05.2022,

1 Whether reporters of Local Papers may be allowed to see the registered at Police Station Sadar, District Mandi, H.P., under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

The prosecution story, in brief, is that on 4. 05.2022, police party had laid a nakka at place Mandi Kamand road near Cow Sadan for checking the vehicles. Around 4:05 p.m., a white coloured Scooty came from the Kamand side, which was signaled to stop. The rider of the Scooty stopped the Scooty at a distance of about 20 meters before the nakka laid by the police and ran backwards. There was also a pillion rider on the Scooty, who on seeing the police party got off the Scooty and starting running backwards, however, at a distance of 10 meters, he was nabbed by the police, whereas, the rider of the Scooty managed to escape. On asking, he disclosed his name as Brikam Chand. He also disclosed that the Scooty was of his friend Manoj Kumar (petitioner herein). The pillion rider was time and again looking towards Scooty and there was a bag in the Scooty, as such, the police got suspicious that there were some illegal and stolen articles in the bag. Police thereafter associated independent witnesses, namely Anshu Thakur and Naveen Kumar, in whose presence, the bag was checked, in which, black polythene packet was found. When knot of the said polythene packet was opened, a black coloured substance in the shape of sticks was found, which was charas/cannabis. On weighment, the same was found to be 1 kg 206 gms. Thereafter, the police completed all the codal formalities and consequently, FIR as detailed hereinabove was registered against the accused persons. The co­accused (Brikam Chand) was arrested on 05.05.2022, whereas the petitioner was arrested after four months.

Learned counsel for the petitioner has contended that the petitioner is innocent and has been falsely implicated in this case, as no recovery was effected from him. He further contended that the petitioner is in judicial custody for the last more than six months and taking into consideration the age of petitioner, who is 23 years, if he is not enlarged on bail, his entire career will be ruined. He has further contended that investigation is complete and custody of the petitioner is not at all required and, as such, no fruitful purpose will be served by keeping him behind the bars for an unlimited period.

Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner and quantity of the recovered contraband, i.e. commercial quantity, he is not entitled to be enlarged on bail.

I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case and I am of the firm opinion that the petitioner has not made out a case for grant of bail, as a perusal of the record indicates that the petitioner was arrested for possessing 1 kg 206 grams of charas/cannabis recovered from the bag found in the Scooty. Since the quantity of the charas/cannabis falls within the definition of commercial quantity, therefore, the grant of the bail in this case is governed by the provision of Section 37 of the NDPS Act, 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 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, 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 sub­section (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.”

The Hon’ble Apex Court in the matter of The State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha, (2021) 5 Supreme Court Cases 724, has held that no person accused for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. The relevant portion of the said judgment is reproduced hereunder:­

“9. …….Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27­A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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……………..”.

Thus, in view of the aforesaid decision of Hon’ble Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found in possession of the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of sub­ section (1) of Section 37 of the NDPS Act are in addition to the limitations under the Code of Criminal Procedure. In the instant case, the recovered contraband is 1 kg 206 grams of charas, however, the petitioner has failed to satisfy the conditions for grant of bail, as provided under Section 37 of the NDPS Act. Merely because of the fact that he is in custody for the last more than six months is not a ground to override the mandatory provisions of Section 37 of the NDPS Act. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.