Newal Kishore vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Through this petition, regular bail has been prayed by the petitioner in FIR No. 20/2020, dated 25.1.2020, registered under Section 20 and 29 of Narcotic Drugs & Psychotropic Substance Act (in short 'NDPS Act') at Police Station, Patlikuhal, District Kullu, H.P.

Heard learned Counsel for the parties and gone through the status report and the record appended thereto.

The prosecution case against the petitioner in nut shell is that on 25.1.2020 at around 6:40 a.m. a police party was on patrolling duty at Balu Padhar. It noticed a person carrying a white colored bag at a distance of about 15-20 meters. This person on seeing the police party, retraced his foot steps and also threw the carry bag held by him towards the bushes. This action raised suspicion of the police party. Person was nabbed and interrogated. He disclosed his name as Ajeet Singh and perplexedly stated that he had thrown garbage in the carry bag. The carry bag thrown by him was collected. Its search carried out in accordance with law yielded recovery of 1 kg 78 grams of cannabis. This led to registration of FIR in question.

Ajeet Singh was arrested on 25.1.2020. During investigation, Ajeet Singh disclosed having purchased the cannabis in question from Newal Kishore (bail petitioner). He was found to be in constant touch through his mobile Number 97360-69679 with bail petitioner on latter's mobile Number 98057-62722. The Call Detail Reports (CDR) obtained by investigating agency revealed that on 24.1.2020 itself, both of them had exchanged calls with each other not less than fifteen times.

Status report also records the fact that the challan in the instant case was presented before the competent Court on 18.5.2020. A previous bail petition preferred by the petitioner before the learned Special Judge-II, Kullu was rejected on 22.7.2020.

Learned Counsel for the petitioner contended that nothing was recovered from petitioner's possession. He has been implicated only on account of disclosure statement given by main accused Ajeet Singh. He, therefore, prayed for enlargement of the petitioner on bail relying upon judgments dated 4.6.2020 passed in Cr.MP(M) No. 705 of 2020, dated 20.2.2020 rendered in Cr.MP(M) No. 52 of 2020 and dated 6.7.2020 rendered in Cr.MP(M) No. 924 of 2020.

Learned Additional Advocate General opposed the grant of bail on the ground that commercial quantity of cannabis was recovered from main accused Ajeet Singh who during investigation stated to have purchased the same from the bail petitioner and both of them were found to be in constant touch with each other through their mobile numbers on 24.1.2020 i.e. day of alleged transaction. Main accused was arrested in the wee hours of 25.1.2020.

Each case has to be examined on the basis of its own facts. Quantity of cannabis recovered from main accused Ajeet Singh was 1 kg. 78 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 offience; and

(ii) Petitioner is not likely to commit any offence while on bail.

In the instant case besides the disclosure statement of main accused Ajeet Singh, the investigating agency has also obtained the CDRs of mobile numbers of Ajeet Singh as well as of bail petitioner, which indicate that both of them had been in constant touch with each other through their mobile phones on 24.1.2020 i.e. the day when main accused Ajeet Singh had statedly purchased the contraband from the petitioner. Therefore, in view of the facts as have come out, at this stage, it cannot be said that there are no reasonable grounds to believe about petitioner's involvement in the recovery of 1 kg. 78 grams of cannabis. Therefore, the bail petition at this stage is dismissed.

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.