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Madhya Pradesh High Court · body

2010 DIGILAW 447 (MP)

Chen Singh v. Union of India

2010-04-20

N.K.MODY

body2010
ORDER 1. This is a second bail application filed under section 439 CrPC for grant of bail for the offence a1leged to have been committed under sections 8/18 and 29 of NDPS Act in connection with Crime No. 1/2007 registered at PSCBN, Garoth, Dist. Mandsour. 2. Learned counsel for the petitioner submits that petitioner is under arrest w.e.f 21.2.2007. The first application was dismissed as not pressed with liberty to file fresh application after framing of charge vide order dated 30.7.2008 passed in MCr.C No. 3817/2008. Learned counsel for the petitioner submits that the case of the prosecution is that co-accused Narsingh was travelling in a passenger bus and was carrying 6Kg. of opium and powder wieghing 100 gms. It is submitted that the petitioner was travelling in the said bus and was sitting on a seat behind co-accused Narsingh. Nothing has been recovered from the petitioner. It is submitted that petitioner has been imp-leaded as accused on doubt. The petitioner is not related with the alleged offence. It is submitted that co-accused Shiv Singh has already been bailed out by this Court vide order dated 20.11.2009 passed in MCrC No. 7412/2009. It is submitted that case of the petitioner is identical to the case of the co-accused Shiv Singh. It is submitted that petitioner be allowed and the petitioner be released on bail. 3. The application is opposed by the respondent. It is submitted that petition be dismissed. 4. Section 37 (1) (b) (ii) of NDPS Act deals with grant of bail in the matter of offences alleged to have been committed under the Act, which reads as under:- "37. Offences to be congnizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27 A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (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." 5. In the matter of State of U.P. v. Kajad, reported in 2002 (1) JLJ 273=200 1 SCC (Cri) 1520, the Hon'ble apex Court has observed that appeal can be granted only under exceptional circumstances and the Court's satisfaction under Clause (ii) about accused being not guilty must be arrived at on the basis of records produced before it. In the matter of Union of India v. Shiv Shankar Kesari, reported in (2007) 3 SCC (Cri.) 505. the Hon'ble apex Court held that for granting bail, both the conditions prescribed under section 37 (1) (b) (ii) i.e. satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail, must be satisfied. It was further observed that if either of those two conditions is not satisfied, the bar operates and the accused cannot be released on bail while explaining the meaning of expression "reasonable grounds". The Hon'ble apex Court further held that there must be existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. However, the Court is not required to record a finding of "not guilty" as it does while pronouncing a judgment of acquittal. Existence of some material is also necessary for coming to conclusion as to second condition that the accused is not likely to commit any offence while on bail. ' 6. In sub-clause (vii) (a) and (xxiii) (a) of section 2 of NDPS Act commercial quantity and small quantity have been defined, which reads as under. Sub-clause (vii) (a)-"commercial quantity", in relation to narcotic drugs and psychotropic substance, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. Sub-clause (xxiii) (a) -- 'small quantity", in relation to narcotic drugs and psychotropic substance, means and quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. 7. In exercise of powers' conferred by above sub-clause of the Act and in super session of Ministry of Finance, Department of Revenue Notification S.O.527 (E) dated 16th July, 1996, the Central Government has specified the quantity in the table. Opium is at Serial No. 92 according to which upto 25 grams it is small quantity and more than 2.5 Kg. In exercise of powers' conferred by above sub-clause of the Act and in super session of Ministry of Finance, Department of Revenue Notification S.O.527 (E) dated 16th July, 1996, the Central Government has specified the quantity in the table. Opium is at Serial No. 92 according to which upto 25 grams it is small quantity and more than 2.5 Kg. is commercial quantity. 8. In the present case the quantity of Opium which has been seized from the co-accused Narsingh is 6Kg. and as per FSL report morphine found to be 2.77 %, thus the actual quantity of contraband article comes 120 grams which is more than small but less than commercial quantity. Petitioner is in jail w.e.f. 21.2.07. Co-accused Narsingh has already been bailed out. As per case of prosecution also nothing has been recovered from the petitioner. Since the contraband article which was seized is less than commercial quantity, therefore, bar of section 37 of the Act does not come in playas it applies only in those cases where the quantity of contraband article is in commercial quantity. Apart from this, there is nothing on record on the basis of which it can be said that the petitioner is likely to repeat the offence while on bail. 9. In view of this, considering the nature of the allegation and the evidence collected in the case-diary and also keeping in view the fact that co-accused has already been released on bail and petitioner is in jail w.e.f. 21.2.2007, the application filed by the petitioner is allowed. The petitioner is directed to be released on bail upon his furnishing Personal Bond in the sum of s. 25,000/-(Rupees Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the learned Court below for his further appearance on the dates as may be directed. With the aforesaid observations, MCrC stands disposed of.