Saina Devi vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The bail petitioner is a coÂaccused in FIR No. 14 of 2021, dated 27.03.2021, registered under Sections 20, 25 & 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Sainj, District Kullu, H.P.. Through instant petition, she seeks

anticipatory bail in this FIR.

According to the status report:Â​

2(i) A police party while on patrol duty on 27.03.2021, near Larji at 4:30 am, signalled a TATA TIGOR vehicle to stop. Immediately, thereafter a

PickÂ​Up came, which was also signalled to stop.

2(ii) TATA TIGOR vehicle had two occupants. Both the occupants immediately after stopping the vehicle fled from the spot. Despite being given a

chase by the police personnel, they could not be nabbed at that time.

2(iii) The sole occupant of the PickÂUp vehicleÂits driver, on being questioned, disclosed his name as Vinod Kumar and that he was driving the

vehicle at the instance of its owner, namely, Ram Krishan, who was sitting in TATA TIGOR vehicle alongwith one Deep Raj. Both of them had come

to Sainj for purchasing cannabis. The cannabis, so purchased was kept in the PickÂ​Up vehicle while they themselves sat in TATA TIGOR.

2(iv) The patrol party carried out search of the vehicle after complying with procedural requirements. On search, from the Pick Up Vehicle, 1.555

Kgs of Cannabis was recovered. The FIR was, therefore, registered and Vinod KumarÂ​the driver of PickÂ​Up vehicle, was arrested on 27.03.2021.

2(v) Ram Krishan and Deep Raj, who had escaped from the spot, were apprehended on 30.03.2021. During investigation, they disclosed having

purchased the recovered contraband on 27.03.2021 from one Dabey Ram against cash payment of Rs. One lac.

2(vi) Dabey Ram was arrested on 30.03.2021. As per status report, he disclosed that on 27.03.2021, he had sold 1.555 Kgs cannabis against cash

payment of Rs. One lac to the aforesaid accused persons. He also disclosed that the bail petitioner had brought the contraband in question to him on

27.03.2021 for sale. Whereabouts of the petitioner were tried to be located, however, she could not be traced.

According to the status report, the call detail record was obtained by the investigating agency, which disclosed that the petitioner had talked on

phone with Dabey Ram five times on 26.03.2021 and once on 27.03.2021. The petitioner has been alleged to have handed over 1.555 Kgs of cannabis

to Dabey Ram on 27.03.2021 for sale. The contraband was later on sold on 27.03.2021 by Dabey Ram for Rs. One lac. As per prosecution case, call

detail record reflects exchange of calls between the two. Since the quantity of the contraband involved in the instant case is commercial, therefore,

Section 37 of the NDPS Act, comes into play. Rigors of Section 37 of NDPS Act can not be ignored merely because petitioner is a lady. The

contraband recovered in the FIR in question falls in the commercial quantity notified under the Act. The adjudication of the bail is, therefore, governed

by the provisions of Section 37 of the NDPS Act.

Reference in this regard can be made to following para of (2018) 13 SCC 813, titled Satpal Singh versus State of Punjab:Â​

“14. Be that as it may, the order dated 21.09.2017 passed by the High Court does not show that there is any reference to Section 37 of

the NDPS Act. The quantity is reportedly commercial. In the facts and circumstances of the case, the High Court could not have and should

not have passed the order under Sections 438 or 439 Cr.P.C. without reference to Section 37 of the NDPS Act and without entering a

finding on the required level of satisfaction in case the Court was otherwise inclined to grant the bail. Such a satisfaction having not being

entered, the order dated 21.09.2017 is only to be set aside and we do so.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:Â​

“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 maybe 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 size able 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 respondentÂaccused on bail. Instead of attempting to take a holistic view of the harmful socioÂ‐

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

Cr.PC, but is also subject to the limitation placed by Section 37 which commences with 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 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 Cr.PC, 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 Acts indeed uncalled for.â€​

No case whatsoever has either been pleaded or made out for recording the satisfaction that there are reasonable grounds to believe that petitioner

is not guilty of the offence alleged against her. The requirements of Section 37 of the NDPS Act are not met with. Also as per status report, the

petitioner has not been cooperating with the investigating agency.

For all these reasons, I find no merit in the present petition and the same is accordingly dismissed.

Pending miscellaneous application(s), if any, shall also stand disposed of.