Pankaj 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. 55/2022, dated 07.03.2022, registered at Police Station Baddi, District Solan, H.P., under Sections 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

The prosecution story, in brief, is that on 7. 03.2022 a rukka was received at Police Station Baddi that on 07.03.2022 at about 11:30 a.m., while police party was on routine patrolling duty, they received a secret information that Safi Mohammad alias Sheru and Pankaj Kumar were indulging in the business of selling narcotic drugs and if their vehicle was searched, huge quantity of narcotic drugs could be recovered. Accordingly, police party associated Gurnam Singh, Pradhan and Jagdish Chand as independent witnesses in the proceedings and went in search of the aforesaid persons and near Shri Krishana Cowshed, they found a vehicle bearing registration No. HP93­6733, in which, two persons were sitting. The person who was sitting on the driver seat disclosed his name as Safi Mohammad alias Sheru and the person sitting next to him, disclosed his name as Pankaj Kumar (petitioner herein). In presence of the independent witnesses, the aforesaid vehicle was searched and during search, one carry bag was recovered from the backside of the co­driver seat and on opening of the same, 100 packets of Lomotil tablets (each packet was containing 60 tablets) were found, which was a sample of Diphenoxylate tablets. On weighment, the recovered contraband was found to be 390 grams. Thereafter, the police completed all the codal formalities and consequently, FIR as detailed hereinabove was registered against the accused persons and they were arrested.

Learned counsel for the petitioner has contended that the petitioner is innocent and has been falsely implicated in the case, as no recovery was effected from his conscious possession. He further contended that the petitioner is in judicial custody for the last more than one year and taking into consideration the age of petitioner, i.e. 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 quantity of Lomotil tablets, which is a sample of Diphenoxylate tablets, involved in the present case is 390 grams, which is commercial quantity. Since the quantity of the tablets falls within the definition of commercial quantity, therefore, the grant of the bail in the 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 involved in 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 quantity of the contraband involved, is 390 grams of Lomotil tablets, which is a sample of Diphenoxylate tablets, 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 one year 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.