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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 ..... compass, the facts of the case as per prosecution case are that on the information of informer, two vehicles white coloured Swift Dzire car and grey coloured Honda City car were intercepted on 23.06.2020 by the police team using necessary force and persons sitting in the vehicles were pulled out. On questioning, they disclosed about transportation of illegal Ganja in the said vehicles. On interrogation at the spot, the apprehended accused persons, who were sitting in Honda City car, disclosed their names as Praveen Maurya alias Punit Maurya (owner), Rishabh Kumar (Driver) and Dhiraj Maurya, whereas person, who was driving Swift Dzire car disclosed his name as Dheeraj Kumar Shukla (applicant). The accused were enlightened about their legal rights to be searched before a Gazetted Officer, to which they declined and gave their consent saying that informant may take their search. Accordingly, they were searched, but no contraband was recovered from their personal search, except mobile phones and some cash amount etc. as mentioned in the recovery memo. On taking search of aforesaid vehicles, total 92.410 Kgs. of Ganja were recovered from the dicky of Honda City car bearing No. MH 04 AF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Praveen Maurya @ Puneet Maurya have been granted bail by the Coordinate Bench vide orders dated 14.07.2021 and 14.09.2021 respectively without considering the mandatory provisions of Section 37 of the N.D.P.S. Act and material on record available in the case diary as well as without giving any reason, therefore, benefit of parity of such bail orders cannot be given to the present applicant. (iii)- the bail has been obtained by misrepresentation of facts and law. It is submitted that in this case, total 157.570 Kgs 'Ganja' was recovered from the dicky of the vehicles in question, therefore, provisions of Section 50 of N.D.P.S. Act is not attracted at all in view of the recent judgments of the Apex Court in the cases of Varinder Kumar Vs. State of Himachal Pradesh, (2020) 3 SCC 321, Kallu Khan Vs. State of Rajasthan, 2021 SCC OnLine SC 1223 and Dayalu Kashyap Vs. State of Chattisgarh, 2022 SCC OnLine SC 334. (iv)- Mr. Maurya, learned A.G.A. has also placed reliance upon following judgments of the Apex Court as well as of this Court:- (a). In Chandigarh Administration and another Vs. Jagjit Singh and another, AIR 1995 SC 705, the Apex Court in paragraph-8 has held as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parity of bail orders dated 14.07.2021 and 14.09.2021 of co-accused Sonoo Shukla and Praveen Maurya @ Puneet Maurya, which have been passed by the Coordinate Bench without considering the mandatory provisions of Section 37 of the N.D.P.S. Act and without giving reasons." 8- Relevant part of the aforesaid bail order dated 14.07.2021 of co-accused Sonoo Shukla passed by the Coordinate Bench is being reproduced herein below:- "Heard learned counsel for the applicant, learned A.G.A for the State and perused the record. It has been argued by learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. It is alleged that 157.570 of Ganja was alleged to be recovered from the vehicle Swift Desire Car No. UP-70-EW-0246, which is registered in the name of accused-applicant. It is further contended that the alleged recovery was not made from the accused applicant and he was implicated in this case on the ground that he is registered owner of the aforesaid Swift Desire Car. It is further contended that the recovery was made from Dheeraj Kumar Shukla, who is the brother of present accused-applicant from aforesaid Swift Desire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of accused persons. Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail." 10- Before delving into the matter, it is apposite to quote the Section 37 of N.D.P.S. Act, which are as follows:- "37. Offences to be cognizable and nonbailable. - (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 opportunity to oppose the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. 14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDPS Act, the Court is not called upon to record a finding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail. 7. The expression used in Section 37 (1)(b) (ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged." (iv). In State of Kerala Etc. Vs. Rajesh Etc. AIR 2020 Supreme Court 721, Apex Court again considered the scope of Section 37 of N.D.P.S. Act and relying upon earlier decision in Ram Samujh (Supra) held as under: "20. The scheme of Section 37 reveals 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 which commences with nonobstante clause. The operative part of the said section is in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fraction by the High Court of its duty to apply the law........" NOTE:- Here it is also relevant to mention that in the case of Prateek Shukla (supra), Review Petition (Crl.) No.323 of 2021 was filed but the same was rejected by the Apex Court vide order dated 17.08.2021. (vi). The Apex Court in the matter of The State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha, (2021) 5 SCC 724 has held that : "......Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for the offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail, where the Public Prosecutor oppose the application, unless 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." (vii). Narcotics Control Bureau Vs. Laxman Prasad Soni, Etc. (Criminal Appeal Nos. 438-440 of 2021 decided by the Apex Court on 19.04.2021). In the said case, there was recovery of 229 Kgs. of Ganja from the possession of accused persons. Out of which 25 Kgs. of Ganja was recovered from one vehicle occup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 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. The relevant paragraph nos. 11 and 12 of the said judgments are reproduced herein under:- "11. In the earlier part of this judgment, we have extracted the lone sentence in the order of the High Court which is intended to display some semblance of reasoning for justifying the grant of bail. The sentence which we have extracted earlier contains an omnibus amalgam of (i) "the entire facts and circumstances of the case"; (ii) "submissions of learned Counsel for the parties"; (iii) "the nature of offence"; (iv) "evidence"; and (v) "complicity of accused". This is followed by an observation that the "applicant has made out a case for bail", "without expressing any opinion on the merits of the case". This does not constitute the kind of reasoning which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing such orders granting or refusing to grant bail, where the Courts make a general observation that "the facts and the circumstances" have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court. 23. Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (supra) this Court observed as follows: "25. Merely recording "having perused the record" and "on the facts and circumstances of the case" does not subserve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground of parity even where the order granting bail to an identically placed coaccused contains no cogent reasons or if the same has been passed in flagrant violation of well established principle of law. If any illegality is brought to the knowledge of the Court, the same should not be permitted to perpetuate. It is also well settled that no judge is obliged to pass orders against his conscience merely to maintain consistency. Hence, the benefit of parity of bail orders dated 14.07.2021 and 14.09.2021 of co-accused Sonoo Shukla and Praveen Maurya @ Puneet Maurya cannot be extended to present applicant. Accordingly, the submission of learned counsel for the applicant for granting bail to the applicant on the ground of parity is hereby rejected. The issue of parity is decided against the applicant. 16- So far as next argument of learned counsel for the applicant that the applicant is in incarceration for a long time since 24.06.2020, therefore, he is liable to be released on bail is concerned, it is argued by learned A.G.A. that in the case of Union of India v. Rattan Mallik (supra), the accused was in jail for last three years, but the Apex Court has made an observation that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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