Held that Section 37 of NDPS Act does not bar bail. Bail granted to petitioner for NDPS offences after three years custody citing Supreme Court rulings that liberty overrides statutory impediments and trial must be completed reasonably.
Petitioner enlarged on bail on personal bond of Rs.50,000/- with two sureties of Rs.25,000/- each.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2024:RJ-JD:29557]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 3691/2024
Harvinder Singh S/o Sher Singh, Aged About 37 Years, R/o Salana Tehsil Amlo Police Station Amlo District Fatehgarh Sahib (Punjab) (Presently Lodged In District Jail Chittorgarh )
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
| For Petitioner(s) | : Mr. Ashok Khillery |
|---|---|
| For Respondent(s) | : Mr. Abhishek Purohit,AGA |
HON'BLE MR. JUSTICE FARJAND ALI
Order
19/07/2024
| S.No. | Particulars of | the Case |
|---|---|---|
| 1. | FIR Number | 91/2021 |
| 2. | Concerned Police Station | Shambhupura |
| 3. | District | Chittorgarh |
| 4. | Offences alleged in the FIR | Sections 8/15 & 8/15 of the NDPS Act |
| 5. | Offences added, if any | Section 8/29 of the NDPS Act |
| 6. | Date of passing of impugned order |
30.01.2024 |
(2 of 7)
[2024:RJ-JD:29557]
[CRLMB-3691/2024]
(3 of 7)
[2024:RJ-JD:29557]
[CRLMB-3691/2024]
complainant oppose the bail application and submits that the present case is not fit for enlargement of accused on bail.
[2024:RJ-JD:29557]
[CRLMB-3691/2024]
(4 of 7)
ruling passed by Hon'ble the Supreme Court in Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) passed by Hon’ble the Supreme Court in Special Leave Petition (Crl.) No.915 of 2023 vide order dated 28.03.2023 , wherein while discussing the parameters of Section 37 of the NDPS Act, it was held that the provision cannot be construed in a manner that would render the grant of bail impossible. The accused-appellant in the aforementioned case was directed to be enlarged on bail looking to the long period of incarceration. The paragraphs of Mohd. Muslim @ Hussain (supra ) relevant to the present matter are reproduced below:
“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 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, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023, decided on 28.03.2023. 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 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
[2024:RJ-JD:29557]
[CRLMB-3691/2024]
(5 of 7)
co-operating 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.
19. 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.”
(Emphasis Supplied)
[2024:RJ-JD:29557]
[CRLMB-3691/2024]
(6 of 7)
appearing in the case of prosecution as the same may put a serious dent on the State’s case yet at the same time, this Court can not shut its eye towards the non-compliance of the mandatory provision, more than three years of incarceration pending trial, failure of compliance with the procedure of sampling and seizure and the serious issue of competence of seizure officer. In the case of Mohd. Muslim @ Hussain (Supra) it has been propounded that at the stage of hearing a bail application under Section 439 Cr.P.C., although it is not possible to make a definite opinion that they are not guilty of the alleged crime but for the limited purpose for the justifiable disposal of the bail applications, a tentative opinion can be formed that the material brought on record is not sufficient enough to attract the embargo contained under Section 37 of the NDPS Act. Though specific arguments have not been conveyed but looking to the fact that the accused is in custody, this court feels that the accused are not supposed to establish a case in support of his innocence rather his detention is required to be justified at the instance of the prosecution, therefore, this court went deep into the facts of the case and the manner in which the entire proceedings have been undertaken. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. In view of the above, it is deemed suitable to grant the benefit of bail to the petitioner.
(7 of 7) [CRLMB-3691/2024]
[2024:RJ-JD:29557]
(FARJAND ALI),J
34-Mamta/-
3 issues framed by the court
Whether bail should be granted to an accused under Sections 8/15 and 8/29 of the NDPS Act pending trial.
Whether non-compliance with Section 37 and Section 53 of the NDPS Act warrants remand custody.
Whether long period of incarceration without trial justifies grant of bail under Article 21.
Colour shows how this judgement treated each authority
Mohd Muslim @ Hussain V. State (NCT OF DELHI)Relied on¶29
Mohd Muslim @ Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi) SLP (Crl.) No.915 of 2023
Rabi Prakash Vs. State of OdishaRelied on¶41
Rabi Prakash Vs. State of Odisha SLP (Crl.) No.(s) 4169/2023
5 provisions across 2 enactments
Harvinder Singh
State Of Rajasthan
FARJAND ALI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
