Saddam vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking the regular bail. It has been asserted that the petitioner was arrested by the police for the commission of offences punishable under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), registered vide F.I.R. No. 124/23, dated 07.09.2023 in Police Station Nahan, District Sirmour, H.P.

It has been asserted that as per the prosecution case, 576 capsules of PARVION SPAS+ were recovered from the possession of the petitioner, whose weight was 221.76 grams except for the weight of the shell. The petitioner has been in custody since 07.09.2023. He is a permanent resident of the District Yamunanagar (Haryana) and there is no chance of his absconding. The petitioner applied for grant of regular bail before the learned Special Judge-II, Sirmour District at Nahan, H.P. but his application was dismissed. The petitioner has been falsely implicated and his pre-trial incarceration will not serve any fruitful purpose. The petitioner will abide by all the terms and conditions, which may be imposed by the Court while releasing him on bail. Therefore, it was prayed that the petition be allowed and the petitioner be released on bail.

The petition was opposed by filing a status report, asserting that a police party was checking the vehicles on 07.09.2023. The police signalled a motorcyclist to stop it, but he tried to speed away from the spot. He was apprehended by the police. He revealed his name Saddam (present petitioner). The police party searched the carry bag being carried on the handle of the motorcycle in the presence of witnesses and found 576 Capsules of PARVION SPAS+ containing TRAMADOL. The petitioner could not produce any licence or permit to possess the aforesaid Capsules. The Capsules were seized and the petitioner was arrested. One person Navez was also found to be involved in the commission of the offence. The police searched for him but could not find him. The result of the FSL has been received, which shows that the capsules of PARVION SPAS+TARMADOL contained 269.568 grams. The petitioner can indulge in the commission of a similar offence in case he is released on bail. Therefore, it was prayed that the present petition be dismissed.

I have heard Mr. Dheeraj K. Vashist, learned counsel for the petitioner and Mr. R.P.Singh, learned Deputy Advocate General for the respondent State.

Mr. Dheeraj K. Vashist, learned counsel for the petitioner submitted that the petitioner has been falsely implicated. As per the order passed by the learned Special Judge-II, Sirmour, District at Nahan, H.P., the quantity of capsules of PARVION SPAS+TARMADOL was found to be 221.76 Grams except the weight of shell, which is an intermediate quantity. The prosecution has now asserted that the total weight of PARVION SPAS+TARMADOL capsules was 269.568 grams, which is not permissible because the quantity could not have increased after its seizure by the Police. This prima, facie casts, doubt upon the prosecution version. The petitioner is innocent and he was falsely implicated. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. R.P.Singh, learned Deputy Advocate General submitted that the learned Special Judge-II, Sirmour, District Nahan, H.P. had calculated the quantity as 221.76 grams. It was submitted before the learned Special Judge-II, that the exact quantity would be ascertained after its analysis at FSL. Therefore, there is no discrepancy in the weight. The number of capsules of PARVION SPAS+TARMADOL found in the possession of the petitioner is more than the commercial quantity. The rigour of Section 37 of the NDPS Act applies in the present case. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

The weight of the capsules recovered from the possession of the petitioner was not mentioned in the police file. Learned Special Judge-II, Sirmaur District Nahan H.P. himself calculated the weight of the capsules as 221.76 grams except for the weight of the shell. It was submitted before the learned Special Judge-II, that the report of FSL is awaited and it cannot be said that the quantity was not commercial. This shows that the prosecution never projected the weight of the capsules as 221.76 grams. Therefore, the petitioner cannot take advantage of calculations made by the learned Special Judge-II, on his own without waiting for the report from the FSL or without even referring to the proceedings under Section 52-A held before the learned Magistrate. The weight of the capsules in the aforesaid PARVION SPAS+TARMADOL was 269.568 grams as per the report of the FSL, Junga, which is more than the commercial quantity. Therefore, the rigours of Section 37 of the NDPS Act apply to the present case.

Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail. Section 37 of the NDPS Act 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, 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.”

This Section was interpreted by the Hon'ble Supreme Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC 738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail. It was observed:

“7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are :

(1) In the case of a person accused of an offence punishable under Section 19,

(2) Under Section 24,

(3) Under Section 27A and

(4) Of offences involving commercial quantity.

The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment.

(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence;

(2) that person is not likely to commit any offence while on bail.”

This position was reiterated in State of Kerala Versus Rajesh AIR 2020 SC 721 wherein it was held:

“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 the 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 the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow 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. The reason may be the 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 vs. 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 the non-obstante 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 an 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 the 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 10 that 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 is indeed uncalled for.”

A similar view was taken in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 wherein it was observed at page 110

“21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are:

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist “reasonable grounds to believe” that : (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.

The standard prescribed for the grant of bail is “reasonable ground to believe” that the person is not guilty of the offence. Interpreting the standard of “reasonable grounds to believe”, a two-judge Bench of this Court in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10 -11)

“7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts andcircumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged.

The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

‘7. … Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable”. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.’

[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532] ]

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The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis, it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd., (2003) 6 SCC 315] )

11 . The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”

(emphasis supplied)

Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.

In the present case, there is no material to show that the petitioner has not committed any offence punishable under Section 22 of the NDPS Act. He was found in possession of 576 capsules of PARVION SPAS+TARMADOL. Thus, there is no reasonable ground for believing, at this stage, that he has not committed the offence. Further, there is no reason to believe that the petitioner is not likely to commit an offence while on bail. Therefore, the petitioner has failed to cross the hurdle created by Section 37 of the NDPS Act and is not entitled to a concession of bail.

In view of the above, the present petition fails and the same is dismissed.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case.