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TMI Blog2022 (11) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... reaching to the conclusion that there are reasonable grounds to believe that the petitioner is not guilty of the offence. These may be good grounds to be argued at the stage of final arguments, but at the present stage, this Court cannot reach to a reasoned conclusion that petitioner has not committed the offence - Similarly, there is nothing on record to satisfy that if the petitioner is released on bail, she will not again indulge in the same crime, during the bail period. The twin conditions set out in Section 37 of the NDPS Act for granting bail are not satisfied. No grounds are made out for grant of bail to the petitioner at this stage - bail application is accordingly dismissed. - BAIL APPLN. 1656/2022 - - - Dated:- 7-10-2022 - HON'BLE MR. JUSTICE TALWANT SINGH Petitioner Through: Mr. Adarsh Priyadarshi and Mr. Sachin Tomar, Advocates. Respondent Through: Ms. Anushree Narain, Advocate. Talwant Singh, J.: 1. This is an application for regular bail in case SC No.441453/2016. The applicant was arrested on 04.05.2016 and since then, she is stated to be in custody. 1.1 The case of the prosecution is that on receipt of information that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olitan Magistrate and the same was duly verified after comparing it with the case property. All the proceedings were duly photographed and the said photos were attested by the learned Metropolitan Magistrate on 27.05.2016. 3.4 It has been submitted that the judgements cited by the petitioner are not applicable to the facts of the present case. The respondent has also relied upon certain judgements passed by the Hon ble Supreme Court and the High Courts. It has been submitted that the mandatory provision of Section 37 of the NDPS Act cannot be ignored. 3.5 In the present case, there is recovery of narcotic drug from the accused in commercial quantity and the same is corroborated by statement of the witnesses and circumstances of the case and there are high chances that the accused would be convicted in the case. 3.6 It has been also submitted that the accused is not entitled for bail as the provisions of Section 37 of the NDPS Act are not satisfied. Moreover, the drug paddlers have to be dealt with strictly as held by the Hon ble Apex Court. There is, however, likelihood of the present petitioner absconding and frustrating the trial, if she is released on bail as she is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. It was also observed as under: 6. In the present case also Ex.PW.13/B indicates that Chemical Examiner has found meconic acid and morphine positive and in these facts and circumstances, has opined that contraband good so recovered is opium. Whereas, in view of the observations made in Ashwani Kumar (supra), the Chemical Examiner has not mentioned that contraband good contained the coagulated juice of the opium and has also not mentioned the percentage of morphine . More so, the Chemical Examiner has also not mentioned that the contraband good is within the definition of Section 2(xv) of the NDPS Act. 7. In view of the above observations, the prosecution has failed to bring home the guilt to the accused. We find no scope of interference in the impugned judgement of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 6.3 Reliance has been also placed by the petitioner on the judgement of Allahabad High Court in Ibrahim Adenda v. Union of India through Sr. Superintendent This appeal was also against the final judgement and order passed by the learned Special Judge. The relevant portion of the judgement is reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above discussion, the conviction and sentence of the appellant cannot be sustained and the appeal is liable to succeed. The appeal is allowed. The order of conviction and sentence of the appellant is set aside. He is in jail. He shall be set at liberty forthwith, if not required in any other criminal case. 12. Appeal allowed. 6.4 Further reliance has been placed on the judgement of the Rajasthan High Court in the matter of State of Rajasthan v. Naresh Kumar . In this judgement, reference has been made to earlier judgements of the said Hon ble High Court and the leave to appeal against acquittal was dismissed with the following words: It is to be noted that the amendments inserted in Section 21 of the Act, dividing punishment into three parts i.e for small quantity , lesser than commercial quantity and commercial quantity . These amendments were made to rationalise the punishment on the basis of the quantity of the recovered contraband because looking to the deterrent punishment it was thought fit that the persons who only carries should be dealt with leniently according to the recovered contraband from their possession and those who deal with drug traf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he overall issues involved in the case. 20. The Court is not much impressed from the argument raised with regard to non-putting a question relating to conscious possession of the contraband to the appellant in his statement recorded under Section 313, Cr.P.C., and, as such, that argument is not accepted in favour of the appellant. However, it has been put to the appellant that he was seen sitting on the gunny bags. 21. It is settled proposition that if sentence to be awarded is severe like minimum rigorous imprisonment for ten years in addition to a minimum fine of rupees one lac, then the Court has to look for qualitative prosecution evidence. 22. This Court on the overall scanning of the case of the prosecution and the evidence led in defence, has arrived at the conclusion that there are severe latches in the prosecution case and the benefit of the same has to be extended to the appellant. 23. As the sequel to the above discussion, while accepting the appeal the impugned judgement of conviction and the order of sentence passed by learned Judge, Special Court, Sangrur, is hereby set aside. The appellant/accused is hereby acquitted of the charge levelled against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for like amount. (ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the terms set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount. (iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount. (iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions: (i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge on the Special Court concerned and if he does not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, wherein a question was raised that whether restrictions imposed via Section 37 of the NDPS Act are overridden by the directions given by the Hon ble Apex Court in Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731 in the matter of grant of bail to under trials wherein learned Division Bench reached to the following conclusion: In the light of the aforesaid discussion, we are of the view that the directives in Supreme Court Legal Aid Committee (supra) applies with full force to the facts of this case and the petitioner ought to be released on bail on the score of inordinate delay in trial infracting his fundamental rights under Articles 14 and 21 of the Constitution. 6.9 Reliance is also placed on Bail Application No.2477/2021 in Atul Aggarwal v. Directorate of Revenue Intelligence decided on 21.12.2021 by a coordinate bench of this Court. In the said case, the petitioner was in custody for 9 years and keeping in view the fact that the applicant was charged under Section 9A/21/23/25A of the NDPS Act and the minimum imprisonment was specified as 10 years and the petitioner had been in custody for more than 9 years, he was ordered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble Supreme Court in SLP (CRL.) 5769/2022 in the matter of Nitin Adhikary @ Baban v. The State of West Bengal decided on 01.08.2022 . In the said case, the petitioner had undergone custody for a period of 1 year and 7 months as on 09.06.2022, trial was at preliminary stage as only one witness was examined and the petitioner did not have any criminal antecedents, so the petitioner was granted bail in a case under Section 21(c) and 37 of the NDPS Act. 7. In a recent decision of Full Bench of Supreme Court of India, in the matter of N.C.B. v. Mohit Aggarwal 2022 Live Law (SC) 613 , the following has been observed: 10. The provisions of Section 37 of the NDPS Act read as follows: [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 opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot guilty has to be based on reasonable grounds. 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. [emphasis added] 13. The expression reasonable ground came up for discussion in State of Kerala and others Vs. Rajesh and others and this Court has observed as below: 20 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 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 that in addition to the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all coaccused including the respondent herein showed that they were in touch with each other. 17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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