Reeta vs State Of H.P.

Jyotsna Rewal Dua, J

The petitioner is accused of possessing commercial quantity of Tramadol Hydrochloride, hence FIR No. 148/2019, under Section 22 of the Narcotic

Drugs & Psychotropic Substance Act (in short NDPS Act) was registered against her on 18.11.2019 at Police Station, Damtal, District Kangra.

Through the instant petition, the petitioner, who is behind the bar w.e.f 10.2.2020, is praying for her release on regular bail.

The case against the petitioner is that a police party while on patrolling duty on 18.11.2019 received a secret information about the petitioner’s

involvement in drug trafficking.

The information was to the effect that an immediate raid at petitioner’s place could lead to recovery of huge quantity of intoxicating capsules.

Upon receipt of this information, Section 42(2) and other provisions of NDPS Act were complied with and search of the tea stall run by the petitioner

was carried out in presence of independent witnesses in accordance with law. During the course of the search, inside the khokha (tea stall) of the

petitioner, a black coloured polythene was recovered, which was eventually found to be containing 501 ‘Ridley’ capsules. The State Forensic

Science Laboratory, Junga in its report has confirmed the Ridley capsules to be sample of psychotropic substance Tramadol Hydrochloride. According

to the prosecution, the weight of the total capsules, so recovered during search, was 316.9 grams inclusive of polythene packet and minus the packet,

the weight of the powder of the recovered capsules was 267.033 grams. Further according to the report, weight of tramadol in one capsule was

100.34 milligram.

An earlier bail application moved by the petitioner was dismissed by the learned trial Court on 9.3.2020.

Learned Counsel for the petitioner submitted that petitioner is a lady, aged about 40 years. She has been falsely implicated with the offence alleged

against her. She is in incarceration w.e.f. 10.2.2020. Entire investigation in the matter is complete. The challan was presented as far back as on

7.4.2020, hence, in these circumstances, he prayed for releasing the petitioner on bail.

Opposing this prayer, learned Additional Advocate General submitted that petitioner is accused of possessing commercial quantity of psychotropic

substance, therefore, provisions of Section 37 of NDPS Act will be attracted. In the light of Section 37 of NDPS Act, the petitioner has not made out

a case for release on bail.

Petitioner is accused of illegally possessing 501 capsules containing Tramadol Hydrochloride, which is a psychotropic substance. The total weight of

the capsules so recovered from the petitioner was 267.033 grams, which is above 250 grams notified as ‘commercial quantity’ under the NDPS

Act. Even though the weight of Tramadol in 501 capsules recovered from the petitioner comes out as 50.27 grams but it is the total weight of capsules

which is to be considered as per the judgment passed by Hon’ble Apex Court in Criminal Appeal No. 722 of 2017, titled as Hira Singh Vs. Union

of India, decided on 22nd April, 2020, wherein it has been held that in the mixture of narcotic drugs or psychotropic substance with one or more

neutral substance(s), the quantity of the neutral substance(s) is not to be excluded, rather it is to be taken into consideration alongwith actual content

by weight of the offending drug while determining the ‘small quantity’ or ‘commercial quantity’ of a narcotic drug or psychotropic

substance. The relevant para from the judgment is reproduced thus:-

“10. In view of the above and for the reasons stated above, Reference is answered as under:-

(I) The decision of this Court in the case of E.Micheal Raj (supra) taking the view that in the mixture of narcotic drugs and psychotropic

substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not required to be taken into consideration

while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by

weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or

commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of

neutral substance(s) is not to be excluded and to be taken into consideration alongwith actual content by weight of the offending drug,

while determining the “small or commercial quantityâ€​ of the Narcotic Drugs or Psychotropic Substances;

(III) Section 21 of the NDPS Act is not stand-alone provision and must be construed alongwith other provisions in the statute including

provisions in the NDPS act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E) dated 19.10.2001.

(IV) Challenge to Notification dated 18.11.2009 adding “Note 4†to the Notification dated 19.10.2001, fails and it is observed and held

that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No.

5218/2017 challenging the aforesaid notification stand dismissed.â€​

In the instant case total weight of powder of recovered capsules was 267.033 grams. This weight exceeds 250 grams notified as commercial quantity

of Tramadol under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act get attracted. Section 37 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 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.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 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.â€​

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.

The petitioner has failed to satisfied the twin conditions laid down under Section 37 of the NDPS Act, hence, there is no merit in the instant petition.

Same is accordingly dismissed. However, liberty is reserved to the petitioner to file fresh petition at an appropriate stage in accordance with law, if so

advised.

It is clarified that observations made above are confined only to the adjudication of 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.