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TMI Blog2020 (7) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... the rigors of S. 37 of NDPS Act. 4. Mr. Nand Lal Thakur learned Additional Advocate General had filed the status report through e-mail, printout of which is available on file. He further submits that he had sent a copy of the 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 case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court in Para 16, holds, The delicate light of the law favours release unless countered by the negative criteria necessitating that course. 15. In Kalyan Chandra Sarkar v. Rajesh 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 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of 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 cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bable 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. 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 ps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 3. Being aggrieved by the order of the Special Court (NDPS), releasing the accused on bail, the appellant moved the Guwahati High Court against the said order on the ground that the order granting bail is contrary to the provisions of law and the appropriate authority never noticed the provisions 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the particular controversy must be considered before the question as to what constitutes reasonable can be determined". It is not meant to be expedient or convenient but certainly something more than that. 10. The word 'reasonable' signifies "in accordance with reason". In the ultimate analysis it is a question 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the NDPS Act contains special provisions with regard to grant of bail in respect of certain offences enumerated under the said Section. They are:-(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) of offences involving commercial quantity. The accusation in the present 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a young man aged about 25 years. He is a B.Tech Graduate. Therefore, under facts and circumstances of this case we feel that this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members. The case of the appellant is different from that of 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of 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 Distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 50,000/-, (INR Fifty thousand only), to the satisfaction of the Trial Court. The petitioner shall also furnish one surety for INR 5000 (INR Five thousand only), to the satisfaction of the Sessions Court/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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the personal bonds shall ascertain the identity of the bail-petitioner, through these documents, and mention details on the reverse page of the personal bonds. 38. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on her/his furnishing bail bonds in the terms described above. 39. This order does not, in any manner, limit or restrict the rights of the Police or the investigating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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