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TMI Blog2022 (5) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.S. Act and ignoring the settled law laid down by the Apex Court regarding application of Section 37 of the N.D.P.S. Act, whereas recovered quantity is undisputedly is commercial quantity. In the conspectus of the facts of the case, Section 50 of the N.D.P.S. Act is also not applicable as the recovery of Ganja was from the dicky of vehicles. There are no reason on merit of the case has been recorded for granting bail to them - considering the recovery of huge quantity of Ganja as mentioned above, coupled with the fact that the applicant was apprehended at the spot and was having conscious and constructive possession over the recovered Ganja, there are no reasonable ground in terms of Section 37 of the N.D.P.S. Act to hold that the applicant is not guilty of an offence and he is not likely to commit any offence while on bail. There are no good ground for enlarging the applicant on bail - The second bail application of the applicant is accordingly rejected. X X X X Extracts X X X X X X X X Extracts X X X X ..... in white cloths. Specimens of seal were prepared. Accused persons disclosed that they have been engaged in the trafficking of Ganja since last several years. They also disclosed that they purchased the Ganja from one Hari, resident of Kodpad, Odisha and will sell the same on higher price in Prayagraj. Both the aforesaid vehicles were also seized. Contents of recovery memo were explained to the accused persons and after taking their signatures, copy of recovery memo was handed over to them. On the basis of aforesaid recovery, a case was registered against the accused persons at Case Crime No. 0325 of 2020, under section 8/20 of N.D.P.S. Act, police station Jhunsi, district Prayagraj. 5- It is submitted by learned counsel for the applicant that instant second bail application has been moved mainly on the following two new grounds:- (i)- After rejection of first bail application of the applicant on 06.07.2020, co-accused Sonoo Shukla and Praveen Maurya @ Puneet Maurya have been granted bail by the Coordinate Bench of this Court vide orders dated 14.07.2021 and 14.09.2021 in Criminal Misc. Bail Application Nos. 20323 of 2021 and 44698 of 2020 respectively, therefore, the applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw- indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. "..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to 5 public interest. It will be a negation of law and the rule of law." (b). In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:- "The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier." (c). In the case of Satyendra Singh Vs. State of U.P., 1996 A.Cr.R. 867, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further contended that the alleged vehicle was used for transporting of alleged contraband without his knowledge of his brother or without his consent. Learned A.G.A. has opposed the prayer for bail, but he could not dispute the aforesaid facts and submitted that the alleged recovery was not made from the accused-applicant. He has not disputed the above facts that the alleged vehicle was not released in favour of the accused applicant. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed." 9- Relevant part of bail order dated 14.09.2021 of coaccused Praveen Maurya @ Puneet Maurya passed by the Coordinate Bench is being also reproduced herein below:- "Heard learned counsel for the applicant, learned AGA, appearing for the State and perused the material brought on record. It has been contended by the learned counsel for the applicant that 92.410 kilograms contraband article, i.e. Gan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2 of 1974) or any other law for the time being in force, on granting of bail." 11- On several occasions, the Apex Court has considered the issue relating to provisions of Section 37 of the N.D.P.S. Act and after wholesome treatment laid down guidelines in this regard observing inter alia that recording of finding in terms of Section 37 of N.D.P.S. Act is a sine qua non for granting bail under N.D.P.S. Act. Reference of some of the relevant decisions are as follow:- (i). The expression 'reasonable grounds' has not been defined in the N.D.P.S. Act, but the Apex Court in the case of Union of India Vs. Rattan Mallik @ Habul, 2009 (1) SCC (Crl) 831, has settled the expression "reasonable grounds". Relevant paragraphs no. 12, 13 and 14 are quoted herein below: "12. It is plain from a bare reading of the non-obstante clause in the Section and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by sub-clause (b) of subsection (1) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims, who are vulnerable: it causes deleterious effects and 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 NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didien v. Chief Secretary. Union Territory of Goa. [1990] 1 SCC 95 as under: "24. 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 proportion in the recent years. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. 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 that in addition to the limitations provided under the CrPC, 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 is indeed uncalled for." (v). The Apex Court in Union of India vs Prateek Shukla (Crl.A. No. 284/2021), AIR 2021 SC 1509 has held that merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind. The provisions of Section 37 of the N.D.P.S. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 38048 of 2019 without considering provisions of Section 37 of the N.D.P.S. Act. The aforesaid order dated 23.09.2019 has been setaside by the Apex Court on account of the reason that the applications for bail were allowed by the High Court without considering the import and effect of Section 37 of the N.D.P.S. Act. (viii). The Apex Court in Union of India v. Vimla Singh, decided on 19.08.2021 in Criminal Appeal No. 862 of 2021, has set-aside the bail order passed by High Court to four accused on the ground that High Court has not taken into account the effect and rigour of Section 37 of the N.D.P.S. Act. (ix). The Apex Court in the case of Union of India through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, (2021) 10 SCC 100 has held that:- "23.....the test which the High Court and this Court are required to apply while granting bail is also for offences involving commercial quantity shall be released on bail, where there are reasonable grounds for believing that he is not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menance of drug-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dowry; and that a telephone call was received from the accused in close-proximity to the time of death, making a demand. There are specific allegations of harassment against the accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the judge who is deciding an application under Section 439 of the CrPC must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 501 considering several previous judgments on the issue has held that thought detail evaluation of facts on merit is not permissible, but the Court granting bail cannot obviate its duty to apply its judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. 13- In view of the above discussion, it is crystal clear that before granting bail for the offence under N.D.P.S. Act, twin conditions as provided under Section 37(1)(b)(i) and (ii) have to be satisfied, which is in addition to Section 439 of Cr.P.C. and mandatory in nature. 14- Having examined the bail orders of co-accused in its entirety, I find substance in the submission of learned A.G.A. that co-accused Sonoo Shukla and Praveen Maurya @ Puneet Maurya have been granted bail by the Coordinate Bench of this Court without taking into account the effect and rigour of Section 37 of the N.D.P.S. Act and ignoring the settled law laid down by the Apex Court regarding application of Section 37 of the N.D.P.S. Act, whereas recovered quantity is undisputedly is commercial quantity. In the conspectus of the facts of the case, Section 50 of the N.D.P.S. Act is also not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the applicant has no leg to stand on the ground that there is good authority to hold that mere long detention in jail does not entitle an accused to be enlarged on bail pending trial. It has been held to this effect in Vijay Kumar vs. Narendra and others, (2002) 9 SCC 364, Ramesh Kumar Singh vs. Jhabbar Singh and others, 2004 SCC (Cri) 1067 and Girand Singh vs. State of U.P., (2010) 69 ACC 39. Learned A.G.A. has also referred to the judgment of the Apex Court rendered in the case of Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI through its Director reported in (2007) 1 SCC 70 wherein the Apex Court has held as under: "..........None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail". 17- Here it would be relevant to mention that before the Division Bench of this Court in the case of Satya Pal Vs. State of U.P., (1998) 37 ACC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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