Dismissed

Arun Bhardwaj v. State of H.P.

Himachal Pradesh HC1 Oct 2024CRMPM/1350/2024

Case brief

AI extract

What is this about?

The petitioner was in custody while facing trial for commercial possession of the drug Tramadol under the NDPS Act. The petition for regular bail was opposed. The High Court rejected the plea, holding that Section 37's stringent provisions apply and the court was not satisfied under the statutory requirement that the accused is not guilty.

What did the court decide?

The petition for regular bail was dismissed consequent to the findings that the statutory conditions under Section 37 of the NDPS Act were not satisfied.

Arun Bhardwaj Vs State of H.P. — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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2024:HHC:9420

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 1350 of 2024 Reserved on: 09.09.2024 Date of Decision: 1.10.2024.

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Arun Bhardwaj ...Petitioner Versus State of Himachal Pradesh ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the Petitioner : Mr. Virender Thakur, Advocate. : For the Respondent Mr. Ajit Sarma, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular of bail. It has been asserted that the petitioner was falsely implicated for the commission of offences punishable under Sections 21 and 22 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ND&PS) vide FIR No. 84 of 2023, dated 06.09.2023, in Police Station Bangana, District Una, H.P. The petitioner belongs to a respectable family and he is

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running a shop of Chemist. The petitioner has been in judicial

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

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custody for more than 9 months. The charge sheet has been filed before the Court but the prosecution witnesses have not been examined by the Court. The police picked up the petitioner from his shop and took him in custody. The police searched the house of the petitioner where some contraband was found. The allegations of the police that contraband was found from the house of the petitioner is totally incorrect. Police had shown some contraband in the house of the petitioner. The petitioner has two minor school going children and a wife. They are suffering undue hardship and inconvenience due to the continuous detention of the petitioner. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police party was on a patrolling duty on 06.09.2023. They received a secret information at 2:40 pm that petitioner Arun Kumar was dealing with the prohibited drugs in his home. The police completed the formalities and associated two independent witnesses. The police searched the house of the petitioner in the presence of the witnesses and the petitioner. The police found a bag containing various drugs. These were

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counted and 340 packets of Tramadol Tablets were recovered. The petitioner could not produce any bill, license or the permit for keeping the drugs. The police also found 3.96 grams of Heroin. The police seized the drugs and the Heroin. The police also arrested the petitioner. As per the result of the analysis, the substance stated to be Heroin was found to be Diacetylmorphine (Heroin). The total weight of the Tramadol tablets was found to be 833.800 grams. This quantity is commercial. The challan was filed before the Court and the matter was listed on 09.08.2024 for consideration on charge.

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I have heard Mr. Virender Thakur, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State.

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Mr. Virender Thakur, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated in this case. No recovery was effected from the possession of the petitioner and the police have falsely implicated the petitioner. He has been in judicial custody for more than 9 months. His right to a speedy trial is being violated. He relied upon the judgment of the Hon'ble Supreme Court in

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Manish Sisodia versus Directorate of Enforcement 2024 INSC 595 in support of his submission.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State submitted that there is no delay in the trial. The matter was adjourned twice at the instance of the learned counsel for the petitioner. The petitioner was found in possession of a commercial quantity of Tramadol and the rigours of Section 37 of ND&PS Act apply to the present case. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the record carefully.

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The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a

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conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider

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among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The status report shows that the search of the house of the petitioner was conducted during which the police found Tablets containing Tramadol hydrochloride. These were sent to the SFSL and as per the report of the SFSL, the tablets contained Tramadole weighing 833.800 grams, which is a commercial quantity. The status report, prima facie, shows that the petitioner was found in possession of the commercial quantity of Tramadol and the rigours of Section 37 of the ND&PS Act apply to the present case.

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Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail. It reads as under:

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“37. Offences are to be cognizable and non-bailable. – (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 section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or his bond unless–

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(i) the Public Prosecutor has been allowed to oppose the application for such release, and (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 an 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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This Section was interpreted by the Hon'ble Supreme Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC

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738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail. It was observed:

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“7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain

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offences enumerated under the said Section. They are :

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(1) In the case of a person accused of an offence punishable under Section 19,

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(2) Under Section 24,

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(3) Under Section 27A and

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(4) Of offences involving commercial quantity.

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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.

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(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence;

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(2) that person is not likely to commit any offence while on bail.”

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This position was reiterated in State of Kerala Versus Rajesh AIR 2020 SC 721 wherein it was held:

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“19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429 , it has been elaborated as under: -

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"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those

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persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow on a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95) as under:

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With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

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To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

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(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

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(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

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The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing 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 an offence. If either of these two

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conditions is not satisfied, the ban for granting bail operates.

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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. The reasonable belief contemplated in the provision requires the 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 that in addition to the limitations provided under the CrPC, 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 is indeed uncalled for.”

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A similar view was taken in Union of India v. Mohd.

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Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 wherein it was observed at page 110:

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“21. Under Section 37(1)( b )( ii ), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are:

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( i ) The Prosecutor must be given an opportunity to oppose the application for bail; and

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(ii) There must exist “reasonable grounds to believe” that : ( a ) the person is not guilty of such an offence; and ( b ) he is not likely to commit any offence while on bail.

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22. The standard prescribed for the grant of bail is “reasonable ground to believe” that the person is not guilty of the offence. Interpreting the standard

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of “reasonable grounds to believe”, a two-judge Bench of this Court in Shiv Shanker Kesari [ Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505 ], held that : (SCC pp. 801-02, paras 7- 8 & 10-11)

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“ 7 . The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged.

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8 . The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

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‘ 7 . … Stroud's Judicial Dictionary , 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable”. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.’

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[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532 ]]

2024:HHC:9420

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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 Corpn. of Greater Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315 ]

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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.”

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(emphasis supplied)

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23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

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14. This position was reiterated in Narcotics Control

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Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891 wherein it was observed:

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“11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Criminal Procedure Code, 1973 to be kept in mind, but the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in subsection (1) of Section 37 are that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

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12. The expression “ reasonable grounds ” has come up for discussion in several rulings of this Court. In “ Collector of Customs, New Delhi v. Ahmadalieva Nodira” (2004) 3 SCC 549 , a decision rendered by a Three Judges Bench of this Court, it has been held thus:—

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“7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are

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cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.”

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[emphasis added]

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13. The expression “reasonable ground” came up for discussion in “ State of Kerala v. Rajesh” (2020) 12 SCC 122 and this Court has observed as below:

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“20. 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. The reasonable belief contemplated in the provision requires the 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 that in addition to the limitations provided under the CrPC, 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 is indeed uncalled for.”[emphasis added]

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14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have

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committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

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We may clarify that at the stage of examining an application for bail in the context of Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail.”

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In the present case status report clearly shows that the petitioner was found in possession of a commercial quantity of Tramadol, hence the rigours of Section 37 of the ND&PS Act are not satisfied in the present case.

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It was submitted that there is a delay in the trial and the right of speedy trial is being violated. Reliance was placed upon the judgment of Manish Sisodia (Supra). This submission cannot be accepted. A perusal of the order sheets maintained by the learned Trial Court shows that the copies were supplied to the accused on 26.02.2024 and the matter was listed for checking of copies of challan on 19.03.2024. The learned counsel stated that the copies of certain documents had not been supplied by the

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prosecution. Hence, the learned counsel was directed to furnish the details of the desired documents within a week and the prosecution was directed to supply them to the accused. It was recorded on 18.04.2024 that the desired documents could not be produced for want of details. Hence, the matter was adjourned for 09.05.2024 and direction was issued to the accused to supply the details of the documents. The documents were supplied on 09.05.2024 and the matter was listed for opening the prosecution case on 21.06.2024. The time was sought for the consideration on charge on 21.06.2024 and the matter was adjourned for 09.08.2024. The arguments on the charge were heard on 09.08.2024.

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These order sheets show that the matter was adjourned twice due to the lapse of the accused: once on 18.04.2024 when the documents could not be supplied as the accused had failed to supply the details of the documents ordered to be supplied on the previous date of hearing and secondly on 21.06.2024 when the time was prayed for the consideration on charge. There is nothing on record to show that the matter could

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not proceed further due to the lapse of the prosecution or the Court. It was held by the Hon'ble Supreme Court in Manish

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Sisodia (supra) that where the trial was not proceeding due to the lapse of the prosecution and the right of the accused to a speedy trial was being violated, the accused is entitled to bail. Since, in the present case it has not been shown that the matter was adjourned due to the lapse on the part of the prosecution or the Court, the petitioner cannot be held entitled to bail on the ground that his right of speedy trial was being violated.

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Consequently, the present petition fails and the same is dismissed.

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The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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1^st October, 2024 (Nikita)

Arun Bhardwaj v. State of H.P.

Case brief

What is this about?

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Arun Bhardwaj v. State of H.P.

Case brief

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