2020 (7) TMI 838 - HC - Indian Laws

Seeking grant of bail - possession of 94 capsules of WE WECARE and 115 capsules of SPM PRX WOCKHARDY and in all 209 capsules, which weighed 125.72 grams - HELD THAT - Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. In GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT , a Constitutional bench of Supreme Court held that 'It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.' Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. After considering the fact that the main accused from whom the police had recovered the capsules for which the present petitioner stands arraigned as co-accused, has already been released on bail, coupled with the situation that the only admissible evidence between the main accused and the bail petitioner being a couple of phone calls on the day when the main accused was arrested, and the fact that at the time of arrest the I.O. did not seek search warrant of his house or associate the police official of the concerned jurisdiction to search his house to trace similar kind of capsules and other contraband from his house, cumulatively would not be sufficient to deny him bail. Another factor is the lock-down due to Covid-19 disease did not prohibit the police to arrest the accused as such the reasons to explain the delay in arrest is not supported by any guidelines of the State or Central Government, which prohibits the police to conduct the investigation. Therefore, in the cumulative effect of all these factors, the petitioner is entitled to bail. The Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 50,000/-, (INR Fifty thousand only), to the satisfaction of the Trial Court - Petition allowed.

Summary

Issues Involved:
1. Bail application under Section 439 CrPC.
2. Applicability of Section 37 of the NDPS Act.
3. Previous criminal history of the petitioner.
4. Evidence against the petitioner.
5. Judicial precedents on Section 37 of the NDPS Act.
6. Conditions for granting bail.

Issue-wise Detailed Analysis:

1. Bail Application under Section 439 CrPC:
The petitioner, arrested on 22nd May 2020 for selling 209 capsules to the main accused, sought bail from the High Court after his initial application was dismissed by the Special Judge-II, Kangra. The Court considered the petition under Section 439 CrPC.

2. Applicability of Section 37 of the NDPS Act:
The petitioner's case involved commercial quantities of drugs, invoking the stringent conditions of Section 37 of the NDPS Act. Section 37 mandates that no person accused of an offense involving commercial quantity shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application, and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail.

3. Previous Criminal History of the Petitioner:
The petitioner had prior involvement in three cases:
1. FIR No. 150/16 under Section 20-61-85 of NDPS Act.
2. FIR No. 60/17 under Section 21-61-85 of NDPS Act and 18 C of the Drugs and Cosmetic Act.
3. FIR No. 158/16 under Sections 341, 323, 506 read with Section 34 IPC.
The counsel for the petitioner argued that these offenses were not serious enough to deny bail and suggested that conditions could be imposed to cancel bail if the petitioner reoffends.

4. Evidence Against the Petitioner:
The evidence included a phone call between the main accused and the petitioner and the confession of the main accused. The Court noted that the confession of a co-accused is inadmissible under Section 25 of the Indian Evidence Act. The solitary evidence of phone calls was deemed insufficient to deny bail under Section 37 of the NDPS Act.

5. Judicial Precedents on Section 37 of the NDPS Act:
The judgment referenced several precedents, including:
- Gurbaksh Singh Sibbia v. State of Punjab: Bail depends on a variety of circumstances.
- Gudikanti Narasimhulu v. Public Prosecutor: Law favors release unless countered by negative criteria.
- Kalyan Chandra Sarkar v. Rajesh Ranjan: Personal liberty cannot be taken away except by law.
- Union of India v. Merajuddin: High Court must follow Section 37 NDPS Act while granting bail.
- Customs, New Delhi v. Ahmadalieva Nodira: Conditions for bail under Section 37 are cumulative.
- Satpal Singh v. State of Punjab: High Court must reference Section 37 NDPS Act.
- Narcotics Control Bureau v. Kishan Lal: Section 37 prevails over Section 439 CrPC.
- Babua v. State of Orissa: Reasonable grounds for believing the accused is not guilty are required.
- Union of India v. Rattan Mallik: Court must be satisfied about the twin conditions of Section 37.
- Union of India v. Niyazuddin & Anr.: Two conditions must be satisfied for granting bail.
- Sujit Tiwari v. State of Gujarat: Bail may be granted with stringent conditions.

6. Conditions for Granting Bail:
The Court imposed stringent conditions for granting bail, including:
- Furnishing a personal bond of INR 50,000 and one surety for INR 5,000.
- Providing AADHAR number, phone number, WhatsApp number, email, and bank account details.
- Joining the investigation when called.
- Not influencing or threatening witnesses.
- Not tampering with evidence.
- Attending trial on each date unless exempted.
- Abstaining from criminal activities.
- Informing about any change in residential address or phone numbers.
- Procuring a smartphone and keeping its location service always on.
- Surrendering firearms and ammunition.

The Court concluded that the petitioner had crossed the riders of Section 37 of the NDPS Act and was entitled to bail, subject to the stringent conditions imposed. The petition was allowed, and all pending applications were closed.