Sanju Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the ND&PS Act’), vide FIR No. 15 of 2023, dated 3.3.2023, registered at Police Station Sainj, District Kullu, H.P. As per the prosecution case, the

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petitioner was found in possession of charas weighing 2.603 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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kilograms. The police have cited 26 witnesses, however, the statements of only four witnesses have been recorded. One independent witness, Tajender, has turned hostile. The petitioner has been behind the bars since 3.3.2023. The petitioner is innocent and he was falsely implicated. He would abide by 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 had set up a Naka near Dhaman bridge on 2.3.2023 at 9.45 PM. They stopped the vehicle bearing registration No. HP-01K-7535 at 10.15 PM. The driver identified himself as Sanju (the present petitioner). He tried to move a bag with his feet. The police became suspicious and searched the vehicle in the presence of two independent witnesses. The police recovered 2.603 kilograms of charas during the search. As per the report of analysis, the exhibit was found to be charas having 30.14% w/w resin in it. Out of 26 prosecution witnesses, the statements of six witnesses have been recorded. The matter is listed for prosecution evidence on

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

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Mr Ajay Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The prosecution has examined six witnesses as per the status report in two years. One witness has turned hostile. The right to speedy trial of the petitioner is being violated. Hence he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that he is involved in the commission of a serious offence. There is sufÏcient material to connect the petitioner with the commission of a crime. The rigours of Section 37 apply to the present case and the petitioner has not satisfied the twin conditions laid down in Section 37 of the NDPS Act. Therefore, 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 records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: -

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“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

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“14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the

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witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)

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13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: —

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“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied)

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14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed:

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“ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the

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presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The charge was framed in the present case on 7.12.2023. The prosecution has examined six witnesses out of 26 witnesses cited by it, which shows that the trial is progressing normally. The petitioner has not filed the certified copies of the order sheets but on the photocopies which do not show that any adjournment has been sought by the prosecution to produce the witnesses. Hence the plea that there is a delay in the progress of the trial is not acceptable.

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It was submitted that one eyewitness has turned hostile and the prosecution case has become doubtful. This submission will not help the petitioner. As per the status report, the petitioner was found in possession of a commercial quantity of charas which is a heinous offence. It was laid down

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by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, the Trial Court or the High Court should not entertain the bail application of the accused in serious cases after the commencement of trial. Bail cannot be granted because there are some discrepancies in the deposition, which affects the credibility of the victim. It was observed: -

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“14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused.

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Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

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We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its final conclusion, which may either result in the conviction of the Accused or acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event that the trial gets unduly delayed and that, too for no fault on the part of the Accused, the Court may be

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justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed.”

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The status report shows that the petitioner was found alone in the vehicle from which 2.603 kilograms of charas was recovered. It is a commercial quantity and the rigours of Section 37 of the ND&PS Act apply to the present case.

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Section 37 of the ND&PS 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. Section 37 of the NDPS Act reads as follows:

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“37. Offences are to be cognisable 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 cognisable;

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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

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(ii) where the Public Prosecutor opposes the application, the court is satisfied that

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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

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Supreme Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC 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. It was observed:

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“7. Section 37 of the NDPS Act contains special provisions about the grant of bail in respect of certain 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) offences involving commercial quantity.

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The accusation in the present case is about 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

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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

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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 bail application 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 murders one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death 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 trafÏcking 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 trafÏcking 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

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accompany trafÏcking 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 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 sufÏcient 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. 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 27-A 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 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 sufÏcient 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 difÏcult

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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 ]]

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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

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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 trafÏcking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

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It was held in Union of India v. Ajay Kumar Singh,

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2023 SCC OnLine SC 346 that the bail cannot be granted without complying with the requirements of Section 37 of the NDPS Act. It was observed:

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4. This apart, it is noticed that the High Court, in passing the impugned order of bail, had lost sight of Section 37 of the NDPS Act, which, inter alia , provides that no person accused of an offence involving commercial quantity shall be released on bail unless the twin conditions laid down therein are satisfied, namely, (i) the public prosecutor has been given an opportunity to oppose the bail application; and (ii) 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 such offence while on bail.

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15. For the sake of convenience Section 37(1) is reproduced hereinbelow:—

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“37. Offences to be cognisable and nonbailable.-

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

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

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(b) no person accused of an offence punishable for 2[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, 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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16. In view of the above provisions, it is implicit that no person accused of an offence involving trade in a commercial quantity of narcotics is liable to be released on bail unless 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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It was held in State of Meghalaya v. Lalrintluanga

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Sailo, 2024 SCC OnLine SC 1751 that the grant of bail without considering Section 37 of the NDPS Act is impermissible. It was observed:

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“5. There cannot be any doubt with respect to the position that in cases involving the commercial quantity of narcotic drugs or psychotropic substances while considering the application of bail; the Court is bound to ensure the satisfaction of conditions under Section 37(1) (b)(ii) of the NDPS Act. The said provision reads thus:—

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“37(1)(b)(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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6. While considering the cases under the NDPS Act, one cannot be oblivious of the objects and reasons for bringing the said enactment after repealing the then existing laws relating to Narcotic drugs. The object and reasons given in the acts itself reads thus:—

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“An act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit trafÏc in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.”

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In the decision in Collector of Customs, New Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549 , the threejudge bench of this Court considered the provisions under Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with regard to the expression “reasonable grounds” used therein. This Court held that it means something more than the prima facie grounds and that it contemplates substantial and probable causes for believing that the accused is not guilty of the alleged offence. Furthermore, it was held that the reasonable belief contemplated in the provision would require the existence of such facts and circumstances as are sufÏcient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

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As relates to the twin conditions under Section 37(1)(b) (ii) of the NDPS Act, viz., that, firstly, there are reasonable grounds for believing that the accused is not guilty of such offence and, secondly, he is not likely to

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commit any offence while on bail it was held therein that they are cumulative and not alternative. Satisfaction of the existence of those twin conditions had to be based on the ‘reasonable grounds’, as referred to above.

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7. In the decision in State of Kerala v. Rajesh (2020) 12 SCC 122 , after reiterating the broad parameters laid down by this Court to be followed while considering a bail application moved by an accused involved in offences under the NDPS Act, in paragraph 18 thereof this Court held that the scheme of Section 37 of the NDPS Act would reveal that the exercise of power to grant bail in such cases is not only subject to the limitations contained under Section 439 of the Code of Criminal Procedure but also subject to the limitation placed by Section 37(1)(b)(ii), NDPS Act. Further, it was held that in case one of the two conditions thereunder is not satisfied, the ban for granting bail would operate.

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8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the decisions referred supra reveal the consistent view of this Court that while considering the bail application made by an accused involved in an offence under NDPS Act a liberal approach ignoring the mandate under Section 37 of the NDPS Act is impermissible. Recording a finding mandated under Section 37 of the NDPS Act, which is a sine qua non for granting bail to an accused under the NDPS Act, cannot be avoided while passing orders on such applications.”.

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