Ramesh vs State Of Himachal Pradesh

Sushil Kukreja, J

By way of instant petition, filed under Section 439 of the Code of Criminal Procedure the petitioner is seeking bail in case FIR No. 65/2022, dated 07.08.2022, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “the Act”) registered at Police Station Shillai, District Sirmaur, H.P.

The prosecution story, in brief, is that on 07.08.2022, at about 6:05 A.M., while the police party was on routine patrolling duty and present near Bus Stand Shillai, they received a secret information that Ramesh (petitioner herein) used to come to sell milk at Shillai market on his motorcycle bearing registration No. HP-52B-0389 and under the garb of selling milk, he used to sell intoxicated cough syrup to people by giving its home delivery and if his bag is checked, huge quantity of cough syrup could be recovered. Accordingly, the police party had laid a nakka at place Balikoti and associated Madan Singh and Dinesh Chauhan as independent witnesses in the proceedings. At about 8:15 A.M., the aforesaid motorcycle came there and was signaled to stop. During search of the bag of the petitioner, besides six bottles of milk, 16 bottles of Codeine Phosphate & Chlorpheniramine Maleate Syrup, 100 ml each, were recovered. After completion of necessary codal formalities, FIR detailed hereinabove was registered against the petitioner and he was arrested.

The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned counsel for the petitioner has contended that the petitioner is in judicial custody since 07.08.2022. He further submitted that the trial is not going to be completed in near future, as out of total 23 witnesses cited by the prosecution, no witness has been examined till date, as such, no fruitful purpose would 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 the Codeine Phosphate recovered from the possession of the petitioner is 1600 Ml, which is a commercial quantity. Since the quantity of the contraband 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 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.”

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 27-A 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 Codeine Phosphate, is 1600 Ml i.e. 1.6 litre, however, the petitioner has failed to satisfy the conditions for grant of bail, as provided under Section 37 of the NDPS Act.

The learned counsel for the petitioner contended that the petitioner is in judicial custody since 07.08.2022 and no prosecution witness has been examined till date, as such, he deserves to be released on bail on the ground of delay in trial. Although, Article 21 of the Constitution of India guarantees speedy trial and an under trial prisoner cannot be detained in jail/custody for an indefinite period, however, merely because of the fact that the petitioner is in custody for the last more than one year is no ground to grant him bail. The learned trial Court can always be directed to conclude the trial expeditiously. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed. However, taking into consideration the fact that the petitioner is behind the bars since 07.08.2022 and no prosecution witness has been examined till date, the learned trial Court is directed to conclude the trial on or before 31st March, 2024.

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.