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2015 (12) TMI 1190 - HC - Indian LawsBail matters arising out of FIRs registered under NDPS Act - enlargement on bail - How to determine that the accused is not likely to commit any offence while on bail? - The Scope of Liberty - Held that - The legislative intent to make an exception to the principle of bail the rule and jail the exception is further fortified by sub-section (2) of Section 37 which says that the limitation on granting of bail as specified in clause (b) of sub-section (1) are in addition to the limitations prescribed under CrPC or any other law on granting of bail. A person accused of committing offence falling under clause (b) of sub-section (1) of Section 37 of the NDPS Act is obviously on the wrong side of law and he cannot complain that notwithstanding the deterrent legislative policy of such Act, he is entitled to enjoy liberty under Article 21 of the Constitution. One learned Single Judge has granted bail in wholesome without noticing the allegations of organized operations of drug racketeers or the legislative scheme of the NDPS Act including the stringent conditions on bail imposed under its Section 37. The other learned Judge has declined bail applying Section 37 even in those cases where it was admittedly not attracted. With utmost humility and respect at our command, both the views are erroneous in law and cannot withstand the settled legal proposition. None of these orders can be treated as persuasive or binding precedents. In the light of the above discussion and on consideration of the facts and circumstances of the case in hand, it emerges that (i) though no recovery was effected from the petitioner in the case FIR No.56 dated 15.05.2013 but the said case pertains to an offence involving commercial quantity hence Section 37 would be attracted; (ii) it is difficult and premature to believe that the petitioner is not guilty of the offence, for he is alleged to be an active member of drug-mafia; (iii) Owing to his past conduct, namely, involvement in NDPS cases in the States of Maharashtra and Rajasthan, it is not possible for this Court to be satisfied that he is not likely to commit any offence while on bail; (iv) the chargesheet has since been filed and the case is ripe for prosecution evidence; (v) this Court is inclined to issue comprehensive directions for speedier disposal of all drug trafficking cases which are inter-connected, in a time-bound manner
Issues Involved:
1. Petitioner's request for bail. 2. Applicability of Section 37 of the NDPS Act. 3. Scope of 'Liberty' under Article 21 of the Constitution. 4. Determination of reasonable grounds for believing the accused is not guilty. 5. Likelihood of the accused committing an offence while on bail. Detailed Analysis: 1. Petitioner's Request for Bail: The petitioner sought enlargement on bail in connection with FIR No.56 dated 15.05.2013, registered under various sections of the IPC, NDPS Act, and Arms Act. The petitioner was not named in the FIR but was implicated based on the charge-sheet and alleged disclosure statements by co-accused, indicating his involvement in drug trafficking as an associate of a drug mafia kingpin. 2. Applicability of Section 37 of the NDPS Act: The court addressed the contention that Section 37 of the NDPS Act would not apply unless the accused was found in actual 'physical' possession of the illicit drug in 'commercial quantity'. The court clarified that Section 37 opens with a non-obstante clause and mandates that bail can only be granted if the court is satisfied that there are reasonable grounds to believe the accused is not guilty and is not likely to commit any offence while on bail. The court emphasized that the term "involve" is of wide amplitude and includes those accused of abetment, conspiracy, or attempts related to offences involving 'commercial quantity'. 3. Scope of 'Liberty' under Article 21 of the Constitution: The court acknowledged that liberty is a fundamental right under Article 21 of the Constitution, essential for a dignified life. However, it is not absolute and comes with conditions. Liberty is conditional upon being a law-abiding citizen, and those who violate laws, especially in serious offences like drug trafficking, cannot claim this right unconditionally. 4. Determination of Reasonable Grounds for Believing the Accused is Not Guilty: The court noted that while considering bail under the NDPS Act, it is not required to return a finding on the guilt or innocence of the accused. Instead, the court should consider factors such as allegations in the FIR, witness profiles, statements recorded under Sections 161 or 164 CrPC, forensic reports, and official documents. The court referred to the Supreme Court's guidelines, stating that reasonable grounds mean something more than prima facie grounds, and there should be substantial probable causes to believe the accused may not be guilty. 5. Likelihood of the Accused Committing an Offence While on Bail: The court highlighted that the past track record of the accused is crucial in determining the likelihood of re-offending. If the accused has a history of involvement in drug cases, it is presumed they may resume illegal activities if released on bail. The court noted the petitioner's past involvement in NDPS cases in Maharashtra and Rajasthan, indicating a high probability of re-entering the narcotics world if granted bail. Conclusion: The court concluded that the petitioner does not deserve the concession of bail at this stage. The petitioner's past record and involvement in organized drug trafficking, coupled with the stringent conditions under Section 37 of the NDPS Act, led the court to believe that granting bail would not be appropriate. The bail application was dismissed, and the court emphasized the need for a speedy trial in interconnected drug trafficking cases.
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