9911796707
TMI Blog2020 (7) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e status report to learned counsel for the petitioner on WhatsApp number. 5. I have read the status report(s) and heard Mr. Sanjay Dutt Vasudeva, Advocate for the petitioner, Mr. Nand Lal Thakur, Ld. Additional Advocate General for the State of H.P. FACTS: 6. The gist of the facts apposite to decide this petition would suffice that the Police had arrested the main accused Rakesh Rana for possessing 94 capsules of WE WECARE and 115 capsules of SPM PRX WOCKHARDY and in all 209 capsules, which weighed 125.72 grams. After arrest of the main accused on 17.3.2020, in his interrogation, he revealed to the police that he is a drug dependent and he has purchased the capsules from one Dinesh Kumar, the petitioner herein. Due to the spread of Covid-19 disease, the police did not arrest the accused Dinesh Kumar and arrested him only on 22nd May, 2020. PREVIOUS CRIMINAL HISTORY 7. As per the police report the accused Satish Singh involved himself in the following cases: 1). FIR No. 150/16, dated 20.11.2016 under section 20-61-85 of NDPS Act, in Police Station, Shahpur; 2) FIR No. 60/17, dated 2.4.2017, under section 21-61-85 of NDPS Act and 18 C of the Drugs and Cosmetic Act, Police Station, Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three-member bench of Supreme Court holds, 18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. 18. Reading of Section 37(1)(b)(ii) mandates that two conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail. 19. The first condition is to provide an opportunity to the Public Prosecutor and clear her stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates. 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. Be that it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions, the reasonable grounds for believing that during the period of bail, the accused is not guilty of such an offence, the Court still cannot give a finding or assurance that the accused is not likel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence. c) In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, a bench of three judges of Supreme Court directed that since the quantity involved was commercial, as such High Court could not have and should not have passed the order under sections 438 or 439 CrPC, without reference to Section 37 of the NDPS Act. d) In Narcotics Control Bureau v. Kishan Lal, 1991 (1) SCC 705, Supreme Court holds, 6. Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The Narcotic Drugs and Psychotropic Substances Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of Narcotic Drugs and Psychotropic Substances Act are in negative terms limiting the scope of the applicability of the provisions of Criminal Procedure Code regarding bail, in our view, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. The High Court, however, being of the opinion that if the attendance of the accused is secured by means of bail bonds, then he is entitled to be released on bail. The High Court, thus, in our opinion, did not consider the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. g) In N.C.B. Trivandrum v. Jalaluddin, 2004 Law Suit (SC) 1598, Supreme Court observed, 3. Be that as it may another mandatory requirement of Section 37 of the Act is that where Public Prosecutor opposes the bail application, the court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. In the impugned order we do not find any such satisfaction recorded by the High Court while granting bail nor there is any material available to show that the High Court applied its mind to these mandatory requirements of the Act. h) In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Supreme Court holds, 6. As the provision itself provides no person shall be granted bail unless the two conditions are satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd., 2003(4) RCR(Civil) 265 : (2003) 6 SCC 315). 11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. 12. Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion. i) In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court holds, 9. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail. 8. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail. 9. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court. l) In Sujit Tiwari v. State of Gujarat, in the given facts, Supreme Court granted bail, by observing, 10. The prosecution story is that the appellant was aware of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the other accused, whether it be the Master of the ship, the crew members or the persons who introduced the Master to the prospective buyers and the prospective buyers. 12. We, however, feel that some stringent conditions will have to be imposed upon the appellant. SUM UP: 22. From the summary of the law relating to rigors of S. 37 of NDPS Act, while granting bail involving commercial quantities in the NDPS Act, the following fundamental principles emerge: a) The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549]. b) In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin Anr., (2018) 13 SCC 738]. c) Apart from the grant opportunity to the Public Prosecutor, the other twin conditions which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721]. d) The satisfaction c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f co-accused. 25. Given the factual matrix, it is for the Investigating Officer to look into the aspect of non-searching of his house and conduct further investigation per law, if she so desires and thinks appropriate. 26. The report under Section 173(2) CrPC does not restrict the police's powers to investigate further, by following the law. Needless to say, that the Prosecution has all the rights of further investigation under S. 173(8) CrPC, following the law. However, the discussions mentioned above, take the case out of the rigors of S. 37 of the NDPS Act and makes out a case for bail. 27. The recovery did not take place directly from the petitioner. Suffice to say that the petitioner has crossed the riders of Section 37 of the NDPS Act. 28. The petitioner is a permanent resident of District Kangra, therefore, his presence can always be secured. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/Special Court/Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court, which is exercising jurisdiction over the concerned Police Station where FIR is registered. Trial Court. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order: a) The petitioner to give security to the concerned Court(s), for attendance on every date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC. b) The petitioner shall give details of AADHAR number, phone number(s) (if available), WhatsApp number (if available), e-mail (if available), personal bank account(s) (if available), on the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents. c) The Attesting officer shall on the reverse page of personal bonds, mention the permanent address of the petitioner along with the above-mentioned information, whatever is available. d) The petitioner shall join the investigation as and when called by the Investigating Officer or any superior officer. e) The petitioner shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. m) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so. n) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within 10 days from such modification, to the police station of this FIR, and also to the concerned Court. o) The petitioner shall, within ten days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the ON mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the SHO, I.O., or any officer of the concerned Police Station, ask him to share his location, then he shall immediately do so. The petitioner shall neither clear the location hist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating agency, from further investigation in accordance with law. 40. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner. 41. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 42. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same. 43. In return for the freedom curtailed for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior. 44. While deciding the propositions of law involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
