Veena Devi And Others vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

In both these petitions, prayer for regular bail has been made in FIR No. 52 of 2020 registered on 15.2.2020, under Section 20 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Bhuntar, District Kullu. Therefore, these petitions are

taken up together for disposal.

Heard learned counsel for the parties and gone through the status report.

The gist of the case against the petitioners is:-

3(i) During routine patrolling at Bhains nallah, a Volvo Bus bearing No. DL-1-PC-5087 coming from Bhuntar side and going towards Mandi was

stopped by police personnel. While the luggage of the passengers in the bus was being checked, two lady passengers sitting on Seat Nos. 37 and 38

appeared very scared and perplexed. On inquiry, they could not give any satisfactory reason for being baffled. Both of them disclosed themselves to

be real sisters. Search of their luggage was carried out. A Maroon coloured trolley bag was held by these two women between their feet. On being

questioned, both of them said that there is nothing incriminating inside the trolley bag. However, search of the bag was carried out in accordance with

law, which yielded recovery of black coloured substance kept in transparent polythene bags kept underneath their clothes. The black coloured

substance on the basis of experience of the patrolling party was determined as ‘Cannabis’, which on weighing on electronic scale measured

1.807 Kg. The procedure prescribed in law was complied with. This led to the registration of FIR in question against both the ladies (Veena Devi

petitioner in Cr.MP(M) No. 1357 of 2020 and Vidya Devi petitioner in Cr.MP(M) No. 1358 of 2020) and both of them were arrested on 15.2.2020.

3(ii). According to status report during investigation, the petitioners disclosed that the contraband in question was handed over to them by one Hira

Singh, son-in-law of Vidya Devi, for being delivered in New Delhi. In lieu of transportation of the contraband, both of them were statedly promised

Rs. 15,000/-each.

Learned Counsel for the petitioner submitted that contraband was not recovered from the conscious possession of the petitioners. He further

submitted that quantity of 1.807 Kg. of cannabis allegedly recovered in the instant FIR from two petitioners has to be reflected as recovered half each

against each of the petitioners since they were promised to pay Rs. 15,000/-each for transporting the contraband.

Learned Additional Advocate General has opposed the grant of the bail on the ground that commercial quantity of cannabis was recovered from the

conscious possession of the petitioner and rigors of Section 37 of NDPS Act will be attracted in the instant case, which the petitioners have failed to

satisfy.

5(a) Status report reveals that 1.807 Kg. of cannabis was being transported by the petitioners, which was recovered from them during search of their

luggage inside the bus. Since the contraband so recovered was of commercial quantity, therefore, rigors of Section 37 of NDPS Act will be attracted,

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 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. InU nion of India Vs. Ram Samujh and Ors. 1999(9) SCC 42,9 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-

economicconsequences 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 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 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 Act indeed uncalled for.â€​

In order to make out a case for release on bail, petitioners have 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 petitioners are not guilty of such offence; and

(ii) Petitioners are not likely to commit any offence while on bail.

In the instant case, 1.807 Kg. of Cannabis was recovered from the petitioners. The quantity of recovered contraband was much more than

commercial quantity notified under the Act. In the facts of the case, as have come out during investigation there is no reasonable ground to believe at

this stage that the petitioners were not guilty of jointly possessing the contraband.

5(b) The plea taken by learned Counsel for the petitioners that the quantity of recovered contraband has to be equally divided between two petitioners

itself cuts out petitioners’ case of not possessing the contraband. The contraband was allegedly recovered from one bag held by two petitioners

between their feet. Petitioners occupying seat Nos. 37 and 38 in the bus are real sisters. There was no separate recovery of contraband in question

from the individual petitioners.

A full Bench of Hon’ble High Court of Punjab and Haryana inB hupinder Singh Alias Bhinda vs. State of Punjab, reported in 2005(1) RCR (Cri)

168 discussed the question whether, where recovery of narcotic substance is effected from more than one person, it would be open to them to assert

while seeking bail that the quantity recovered be divided equally between them for determining whether the quantity recovered can be termed a small,

less than commercial or commercial quantity and after discussing the whole law concluded in para-8 as follows:-

“Looked from any angle, we find it difficult to support the view that at the stage of bail, it would be permissible for the Court to accept the request

of the applicant that the recovery of a narcotic substance jointly effected from him and his co-accused should be divided equally amongst them for

determining whether the quantity recovered was small, less than commercial or commercial and the question of bail should be considered in the light of

such a division unless such a plea is taken by him at the time of the framing of the charge, which would necessarily involve an admission on the part of

the applicant and his co-accused of the factum of recovery.â€​

According to prosecution, instant was a case of joint possession of contraband by the petitioners/real sisters. The contention of learned Counsel for the

petitioners for dividing the recovered contraband between the two petitioners is not tenable at this stage and is rejected.

Therefore, there is no merit in the bail petitions, which are rejected, reserving liberty to the petitioners to file fresh petition(s) at an appropriate stage in

accordance with law, if so advised. It is clarified that the observations made above are only for the purpose of adjudication of instant bail petitions and

shall not be construed as an opinion on the merits of the matter.