Dismissed

Gurdev Singh v. State of Hp

Himachal Pradesh HC5 Jul 2024CRMPM/1195/2024

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh dismissed bail application in NDPS case involving commercial quantity of poppy husk. Court held Section 37 NDPS Act mandates bail denial when Public Prosecutor opposes. Directed trial court to conclude proceedings by December 31, 2024.

What did the court decide?

Bail application dismissed; trial court directed to conclude trial on or before 31 December 2024.

Gurdev Singh Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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1 ( 2024:HHC:4613 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 1195 of 2024 Reserved: 28.06.2024 Decided on: 05.07.2024

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___________________________________________________________ Gurdev Singh ....Petitioner

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Versus

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State of Himachal Pradesh …Respondent

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Coram

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The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?¹

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For the petitioner : Mr. N.S. Chandel, Senior Advocate with Mr. Ashok Kumar, Advocate. For the respondent : Mr. Puneet Rajta, Additional Advocate General with Ms. Niyati Thakur and Mr. Raj Negi, Deputy Advocates General.

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Sushil Kukreja, Judge

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By way of instant petition, filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case FIR No. 256/2022, dated 28.09.2022, registered at Police Station Nalagarh, District Solan, H.P., under Section 15-61-85

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1Whether reporters of Local Papers may be allowed to see the judgment?

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2 ( 2024:HHC:4613 )

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of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

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The prosecution story, in brief, is that on 28.09.2022, while the police party was on routine patrolling duty and reached near Navgram crusher, a secret information was received that a car, bearing registration No. DL-8CZ-0735 was coming towards Punjab via Link Road Androla and if the same was checked, huge quantity of poppy husk could be recovered. Accordingly, the police party went towards village Kotla Kalan and when they reached near the house of one Tarsem Singh, they saw the aforesaid vehicle coming towards them, which was signaled to stop. The police associated Balbir Singh and Gurmeet Singh as independent witnesses in the proceedings, in whose presence the driver of the vehicle disclosed his name as Gurdev Singh (petitioner herein). During search of the vehicle, when its boot space (dikki) was opened, three plastic sacks, containing grey coloured

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substance were recovered, which on the basis of experience was found to be poppy husk. The police also recovered a receipt issued in the name of Fuman Singh from the dashboard of the car. On weighment, the recovered contraband was found to be 88.010 Kgs. Thereafter, the police completed all the codal formalities and consequently, FIR as detailed hereinabove was registered against the petitioner and he was arrested.

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The bail application has been filed on the ground that the petitioner is innocent and has been falsely implicated. Learned counsel for the petitioner contended that the petitioner is in judicial custody for the last about two years and taking into consideration the age of petitioner, i.e. 34 years, coupled with the fact that he is the only bread earner of family and his wife and two minor children are dependent upon him, if he is not enlarged on bail, their entire life will be ruined. He further contended that there is inordinate delay in

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4 ( 2024:HHC:4613 )

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conclusion of trial, which infringes upon the right of speedy trial of the petitioner, as such, he is entitled to be released on bail on the ground that his right of speedy trial has been violated.

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Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner and quantity of the recovered contraband, i.e. commercial quantity, he is not entitled to be enlarged on bail.

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I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case and I am of the firm opinion that the petitioner has not made out a case for grant of bail, as a perusal of the record indicates that the petitioner was arrested for possessing 88.010 Kgs of poppy husk. Since the quantity of the poppy husk falls within the definition of commercial quantity, therefore, the grant of the bail in

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this case is governed by the provisions of Section 37 of

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the NDPS Act, which reads as under:-

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" 37. Offences to be cognizable and nonbailable. - (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 or 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, 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 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.”

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The Hon’ble Apex Court in the matter of The

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State (NCT of Delhi) Narcotics Control Bureau Vs.

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Lokesh Chadha, (2021) 5 Supreme Court Cases 724,

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has held that no person accused for offences involving

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a commercial quantity shall be released on bail, where

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the public prosecutor opposes 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. The relevant portion of the said judgment is reproduced

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hereunder:-

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“9. …….Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes 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……………..”.

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Thus, in view of the aforesaid decision of

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Hon’ble Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found in possession of the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 of the NDPS

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Act are in addition to the limitations under the Code of

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Criminal Procedure.

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In the instant case, the recovered

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contraband is 88.010 Kgs of poppy husk, which is a commercial quantity. However, the petitioner has failed to satisfy the conditions for grant of bail as provided under Section 37 of the NDPS Act, as such, no ground has been made out to override the mandatory provision of Section 37 of the NDPS Act.

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Learned counsel for the petitioner lastly contended that the petitioner is in custody since 28.09.2022 and the trial in the case is not likely to be concluded in near future, as till date no prosecution witness has been examined. Although, Article 21 of the Constitution of India guarantees speedy trial and an under trial prisoner cannot be detained in jail/custody for an indefinite period, but, merely because of the fact that the petitioner is in custody for the last about two years is no ground to grant him bail. However, taking

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into consideration the fact that no prosecution witness

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has been examined till date, the learned trial Court can always be directed to conclude the trial expeditiously. 10. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed. As the petitioner is behind the bars since 28.09.2022 and no prosecution witness has been examined till date, the learned trial Court is directed to conclude the trial on or before 31^st December, 2024 .

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Be it stated that any expression of opinion

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given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein. The Registry is directed to send a copy of this order to the learned trial Court forthwith.

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(Sushil Kukreja) July 05, 2024 Judge (raman)

Gurdev Singh v. State of Hp

Case brief

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Gurdev Singh v. State of Hp

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