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2015 (12) TMI 1190 - PUNJAB AND HARYANA HIGH COURT

2015 (12) TMI 1190 - PUNJAB AND HARYANA HIGH COURT - TMI - Bail matters arising out of FIRs registered under NDPS Act - enlargement on bail - How to determine that the accused is not likely to commit any offence while on bail? - The Scope of ‘Liberty’ - Held that:- The legislative intent to make an exception to the principle of ‘bail the rule and jail the exception’ is further fortified by sub-section (2) of Section 37 which says that the limitation on granting of bail as specified in clause (b) .....

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t noticing the allegations of organized operations of drug racketeers or the legislative scheme of the NDPS Act including the stringent conditions on bail imposed under its Section 37. The other learned Judge has declined bail applying Section 37 even in those cases where it was admittedly not attracted. With utmost humility and respect at our command, both the views are erroneous in law and cannot withstand the settled legal proposition. None of these orders can be treated as persuasive or bind .....

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ug-mafia; (iii) Owing to his past conduct, namely, involvement in NDPS cases in the States of Maharashtra and Rajasthan, it is not possible for this Court to be satisfied that he is not likely to commit any offence while on bail; (iv) the chargesheet has since been filed and the case is ripe for prosecution evidence; (v) this Court is inclined to issue comprehensive directions for speedier disposal of all drug trafficking cases which are inter-connected, in a time-bound manner - CRM-M-11031 of 2 .....

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FIR version, the SHO Police Station Banur, District Patiala along with other police officials was on patrol duty and when they were at Banno Bhai Chowk, Banur, a secret information was received that Satinder Dhama s/o Ram Roshan Dhama r/o #1669, Sector 15, Panchkula, Baljinder Singh @ Sonu resident of Amritsar, who along with other members of the gang were involved in stealing vehicles which are used for supplying ICE, Pseudoephedrine and other intoxicating material with forged number plates , .....

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ing in a plastic envelope was allegedly recovered. Satinder Dhama was arrested and during interrogation he is said to have named Baljinder Singh @ Sonu as his partner in supplying ICE (Methamphetamine) and Pseudoephedrine in different cities of Punjab. Baljinder Singh @ Sonu was also joined in the investigation and arrested. (4) The petitioner though is not named in the abovementioned FIR but as per the charge-sheet filed under Section 173 CrPC (P2), it is alleged that an organized gang was acti .....

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FIR No.241 dated 07.12.2013 under Section 21/22/25-A/61/85 NDPS Act read with various provisions of IPC registered at Police Station, Patiala. As per the allegations in that FIR, 10kg Pseudoephedrine and 750gm intoxicating powder was recovered from the petitioner. (6) Meanwhile, his name surfaced in this case also hence production warrants were obtained and after interrogation, the petitioner was arrested in this case as well. (7) The petitioner was meanwhile granted bail by this Court in FIR No .....

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eet; (v) The alleged disclosure statement made by the petitioner is fake and fabricated; (vi) The petitioner is in custody from last more than one year and eight months; (vii) The trial is yet to commence and will take time; (viii) In the absence of any recovery, the rigors of Section 37 of NDPS Act are not attracted. (9) Learned Addl. AG Punjab strongly opposed the petitioner s prayer. She branded the petitioner a habitual offender under the NDPS Act and an active member of the organized gang. .....

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s in India, Nepal and beyond that. The Directorate of Revenue Intelligence, Mumbai revealed that the petitioner along with his co-accused Rajesh Shyam Behari Saraf and Aniruddha Harishchandra Chavan have been manufacturing methaqualone powder/Mandrax in the premises of M/s Bilara Cement Factory at Bilara, Jodhpur. (10) According to State counsel the petitioner and Jagdish Singh @ Bhola are closely associated and Bhola was seen in the petitioner s company in Goa. (11) Having heard learned counsel .....

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; (b) the supremacy of liberty guaranteed under Article 21 of the Constitution; and (c) false implication etc. have been pressed into aid by all the petitioners in these connected bail matters, we treat this petition as the lead case. When and where Section 37 of NDPS Act would apply? (13) The contention that Section 37 of NDPS Act would not apply unless the accused has been found in actual physical conscious possession of the illicit drug of commercial quantity , is wholly misdirected and misco .....

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andatory conditions prescribed in sub-clause (ii) are applicable equally in a case where the person is accused of an offence involving commercial quantity . The expression and also… bring such person at par with a violator of Sections 19, 24 or 27-A to attract these conditions. (15) The expression involve is of wide amplitude and it means to connect with something as a natural or logical consequence or effect. Its applicability cannot be narrowed down only to those cases where the commerc .....

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n of India v. Rattan Mallik @ Habul (2009) 2 SCC 624, the Supreme Court has held that while considering an application for bail with reference to Section 37 of the NDPS Act, it is not desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence but his plea that nothing has been found from his possession cannot constitute the satisfaction of the Court to believe that he was not guilty of the offences. In Mohan Lal vs. State o .....

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e chattel and to act as the owner to the exclusion of others . (17) The legislative intent to make an exception to the principle of bail the rule and jail the exception is further fortified by sub-section (2) of Section 37 which says that the limitation on granting of bail as specified in clause (b) of sub-section (1) are in addition to the limitations prescribed under CrPC or any other law on granting of bail. The Scope of Liberty : (18) Having held that, we may also briefly explain the nature .....

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tion: Liberty is antagonist to suppression. It is also complimentary to the rule of law: Liberty vociferously promotes numerous other fundamental and human rights like freedom of speech and expression. (20) So much invaluable is liberty, yet it is not absolute. It comes at a price and is conditional. It embraces a person if he is a law abiding citizen. Liberty in that sense is a mutually agreed and reciprocable right. The one who goes straight is entitled to this priceless gift but the one who g .....

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g offence falling under clause (b) of sub-section (1) of Section 37 of the NDPS Act is obviously on the wrong side of law and he cannot complain that notwithstanding the deterrent legislative policy of such Act, he is entitled to enjoy liberty under Article 21 of the Constitution. When can the Court be satisfied that there are reasonable grounds to believe that the person seeking bail is not guilty of such offence? (23) While considering an application for bail under the Act, the Court is not ex .....

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at stage thus can be:- (i) the allegations made in the FIR; (ii) the profile of the witnesses cited at the first instance; (iii) the statements of witnesses, if any, recorded under Section 161 or 164 CrPC; (iv) the report of the Forensic Science Laboratory; (v) the report under Section 174 CrPC, if submitted; (vi) Official records or documents, if any. (24) In a case where the prosecution has led its evidence in part, the Court has to tread very carefully and ensure no aspersions on the merits o .....

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uilty of offence he is charged with; (iii) there are facts and circumstances sufficient in themselves to justify the satisfaction of the Court that the accused is not guilty of the alleged offence; and (iv) that the satisfaction of the Court is only for the limited purpose of releasing the accused on bail. How to determine that the accused is not likely to commit any offence while on bail? (26) As regards the second condition that a person accused of the offences mentioned in sub-clause (b) is n .....

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d his activities are not beyond the reach of surveillance, coupled with several other attending circumstances on case-to-case basis, the Court can form its satisfaction that the suspect is not likely to commit any such offence while on bail. Similarly, the nature of allegations leveled against the accused and the manner he has been connected with the case can also assist the Court in view-formation. If a person is found in conscious possession of the contraband of commercial quantity and the all .....

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ons contained in sub-clause (ii) of clause (b) are neither empty formalities nor ceremonial. Further, if two views are possible, the one leaning towards the enforcement of liberty must be followed. (27) We may hasten to add at this stage that some of the learned Single Judges have expressed nearly conflicting views in the bail matters arising out of the bunch of FIRs registered under NDPS Act, known as the drug scam cases, which have been now clubbed together and placed before this Division Benc .....

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