Allowed

Manoj Kumar v. Narcotics Control Bureau

Himachal Pradesh HC11 Aug 2023CRMPM/1215/2023

Case brief

AI extract

What is this about?

The High Court granted bail to a drug trafficking accused held in custody for over two years. The court held that strict Section 37 NDPS Act restrictions do not preclude bail when delay is significant and no independent incriminating material exists beyond a co-accused's inadmissible Section 67 statement.

What did the court decide?

Petitioner ordered to be released on bail on a personal bond of Rs. 1,00,000 with two local sureties of like amount subject to seven conditions including cooperation in investigation and abstaining fr

Manoj Kumar Vs Narcotics Control Bureau — Narcotics (NDPS) | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. M.P. (M) No. 1215 of 2023

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Date of decision :11.08.2023 -------------------------------------------------------------------------------- Manoj Kumar ..Petitioner

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Versus

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Narcotics Control Bureau Chandigarh ..Respondents

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-------------------------------------------------------------------------------Coram :-

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Ms. Justice Jyotsna Rewal Dua

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Whether approved for reporting?¹

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____________________________________________________ For the Petitioner : Mr. N.S. Chandel, Senior Advocate, with Mr. Vinod Gupta, Advocate For the Respondent : Mr. Ashwani Pathak, Senior Advocate, with Mr. Dev Raj, Advocate -------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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This petition filed under Section 439 of the Code of Criminal Procedure seeks bail for the petitioner in Crime No.75/2020, dated 29.12.2020, registered under Sections 8, 20, 25, 27, 28, 29, 60 and 62 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (in short NDPS Act) with Police Station NCB, Chandigarh. The petitioner is behind the bars in the instant case w.e.f. 04.07.2021.

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2. The prosecution case against the petitioner is that on 29.12.2020, the officials of NCB, Chandigarh

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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received a secret information that two persons namely Satram Lal and Devinder Singh were travelling with huge quantity of cannabis in Vehicle bearing No.HP35-4856. The information was reliable, therefore, the codal provisions of the NDPS Act were complied with. A naka was put on Shimla road at Yashwant Parmar Chowk, Nahan, District Sirmour. The vehicle in question was stopped. Its search was carried out, which led to recovery of 24 packets of cannabis weighing 11.7 Kg. The recovery led to registration of the case. Satram Lal and Devinder Singh were arrested on 29.12.2020.

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During investigation, Satram Lal got recorded his statement under Section 67 of the NDPS Act and named the bail petitioner as one of the prospective purchaser of the contraband recovered from the vehicle. The call detail record of mobile numbers of main accused persons was analysed and the NCB officials came to the conclusion that the information supplied by the co-accused person (Satram Lal) about involvement of petitioner was correct. The NCB officials issued notice to the petitioner on 03.02.2021, & 17.03.2021 under Section 67 of the Act, but he did not join the investigation. He was apprehended by NCB officials in another case registered against him at NCB Chandigarh.

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He was in jail at Bilaspur for Crime No.43/2021. He was taken in custody on 04.07.2021.

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3. Learned Senior counsel for the petitioner argued that the petitioner has been involved in the case only on the strength of statement of Satram Lal recorded under Section 67 of the NDPS Act and the call detail record of the petitioner with the said Satram Lal. That there is no substantial material available with the respondent except the aforesaid statement of Satram Lal recorded under Section 67 of the NDPS Act and the call detail record. Learned counsel further contended that in view of the judgment passed by the Hon’ble Apex Court in Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1 , the confessional statement recorded under Section 67 of the NDPS Act is inadmissible in the trial and the call detail record is yet to be proved by the respondent against the petitioner. Learned counsel further argued that the petitioner has been booked in the case with the aid of Section 29 of the NDPS Act and no recovery of the contraband was effected from him. He is not at all involved in the commission of offences alleged against him, therefore, prayer was made for enlargement of the petitioner on bail. It was also submitted that the petitioner will not misuse the liberty of bail and will

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abide by all the terms & conditions, which may be imposed upon him in case of grant of bail.

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Vehemently opposing the bail petition, learned

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Senior Counsel for the respondent-NCB submitted that the commercial quantity of the contraband recovered on 29.12.2020 from the vehicle occupied by Satram Lal and Devinder Singh was to be supplied to the accused at Haridwar. That Satram Lal in his statement got recorded under Section 67 of the NDPS Act, had named the petitioner to whom the contraband was to be supplied. The call detail record obtained by the investigating agency proved that 2 calls were exchanged between Satram Lal and the petitioner on the day of recovery. The tower location of petitioner also showed that he was at Haridwar. The material available on record sufficiently points towards guilt of the accused. It being a case of recovery of commercial quantity of the contraband, provisions of Section 37 of the NDPS Act get attracted and therefore, the petitioner does not deserve to be enlarged on bail.

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4. I have heard learned counsel for the parties, perused the status report filed by the respondent and gone through the record made available during hearing of the case by the learned counsel.

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4(i). Instant is a case where 11.7 Kg of cannabis was

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recovered by the respondent from a vehicle occupied by Satram Lal and Devinder Singh-main accused persons in the case on 29.12.2020. The vehicle was stopped on the basis of a secret information received by the respondent. Being a case of recovery of commercial quantity of the contraband, rigors of Section 37 of the NDPS Act get attracted, which reads as under:

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“37. Offences to be cognizable and non-bailable.-

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(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

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(a) every offence punishable under this Act shall be cognizable;

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(b) no person accused of an offence punishable for [offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

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(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

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(ii) where the Public Prosecutor opposes the application, 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.

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(2) The limitations on granting of bail specified in clause (b) of subsection (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.”

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In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the aforesaid section:-

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(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and

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(ii) Petitioner is not likely to commit any offence while on bail.

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4(ii) (a) With regard to Section 37 of the NDPS Act,

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Hon’ble Apex Court in AIR 2020 SC 721, State of Kerala Etc. Versus Rajesh Etc., inter-alia held that exercise of power to grant bail under Section 37 of the Act is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prohibiting the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. In reference to meaning of the words ‘reasonable grounds’, following was observed in para 21 of the judgment :-

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“21. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing

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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 in addition to the limitations provided under the Cr.PC, 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 indeed uncalled for.”

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4(ii)(b) SLP (Crl.) No. 915 of 2023 (Mohd Muslim @

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Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial. Hon’ble Court inte-ralia reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 ( Vijay Madan Lal Chaudhary Vs Union

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of India) were also observed wherein it was concluded that statutory restrictions like “section 43-D(5) of UAPA cannot fetter a constitutional Court’s ability to grant bail on ground of violation of fundamental right” ….. “If the parliament provides for stringent provision of no bail unless the

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stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd Muslim’s case (supra), it was held as under with reference to expression “not guilty of such offence.”

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“18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is “not guilty of such offence” and that he is not likely to commit any offence while on bail. What is meant by “not guilty” when all the evidence is not before the court? It can only be a 18 As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court’s discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the

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ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws – be balanced against the public interest.

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A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

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The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused’s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a

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reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.”

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4(iii). During hearing of the case, learned counsel for the respondent placed on record the statement of main accused Satram Lal recorded under Section 67 of the NDPS Act. I have considered the statement only for purpose of adjudication of this bail petition. At page 3 of his statement, Satram Lal stated having purchased the recovered cannabis from Om Prakash and Sanjay Kumar. He further states that he was to supply this recovered contraband to Manoj Kumar (bail Petitioner), who is resident of Rohtak at Haridwar.

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Law is well settled that confessional statement of coaccused recorded under Section 67 of the Act cannot be relied upon.... [Re: (2021) 4 SCC 1 (Tofan Singh Versus State of Tamil Nadu]. But for confessional statements of accused persons, prima facie, there is no other incriminating evidence against the petitioner. It appears at

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this stage that two calls made by Satram Lal on the mobile number of petitioner, were after he was apprehended by the NCB.

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Petitioner is behind the bars for over two years now. The case was stated to be fixed for consideration of charge on 19.08.2023. Trial will take a long time to conclude. Some of the co-accused persons in the instant FIR have already been granted regular bail. Keeping in view the above pronouncements of Hon’ble Apex Court and the facts of the case, petitioner’s further incarceration is not warranted. He has already been granted bail in the other case registered against him. Considering the totality of the facts and circumstances as have come on record, the statements of Satram Lal, Devinder Singh, the petitioner, the status report and the complaint produced by the respondent during hearing of the case, there are reasonable grounds to believe at this stage that the petitioner is not guilty of the offences alleged against him. He is aged about 35 years. At this stage, it can be reasonably believed that he is not likely to commit any offence during bail. To ensure this, stringent conditions can also be imposed upon him.

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Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid

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crime on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) with two local sureties each in the like amount to the satisfaction of the learned Special Judge, Sirmour, subject to the following conditions:-

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(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

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(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

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(iii). The petitioner will not leave India without prior permission of the Court.

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(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

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(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

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(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

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(vii). Petitioner shall not indulge in any criminal activities. It is made clear that in case the

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petitioner is arraigned as an accused in future in any FIR, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.

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It is made clear that observations made above

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are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

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With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.

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The parties are permitted to produce copy of order downloaded from the High Court website before the concerned authorities, who shall not insist for certified copy of the same, however, it may verify the order from the High Court website or otherwise.

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Jyotsna Rewal Dua Judge

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August 11, 2023 (R.Atal)

Manoj Kumar v. Narcotics Control Bureau

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Manoj Kumar v. Narcotics Control Bureau

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