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2022 DIGILAW 168 (DEL)

Pramod v. State Of NCT Delhi

2022-01-19

CHANDRA DHARI SINGH

body2022
ORDER 1. The instant application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') on behalf of the petitioner praying for regular bail in FIR No. 67/2021 registered at Police Station Crime Branch for offences punishable under Section 20/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act'). 2. Mr. R.K. Ojha, learned counsel appearing on behalf of the Petitioner stated that the petitioner is an innocent, law-abiding citizen who has no criminal antecedents and is not a previous convict. It has also been submitted that there is no public witness to substantiate the allegations levelled against the petitioner. Learned counsel further submitted that the petitioner has not indulged in any illegal activity like cultivating, producing, manufacturing, selling, purchasing, possessing, ware housing, transporting, using, consuming etc. of any narcotic drugs or psychotropic substances, hence no offence under the NDPS Act is made out against him. It has also been submitted that there are several precedents of the Hon'ble Supreme Court ruling that bail is a matter of rule and denial is the exception. It has further been submitted that petitioner is ready and willing to abide by all the terms and conditions imposed by this Hon'ble Court and is ready to furnish sufficient bail bond. 3. Per contra, Ms. Kusum Dhalla, learned APP for the State vehemently opposed the bail application and laid out the facts of the case as under: a. Upon receiving a secret information in the afternoon of 21st April 2021 that two suppliers of Ganja (Cannabis) namely - Sajid and Nasir would be delivering the contraband to a person at Jhilmil Industrial Area, Delhi between 2 to 3 pm, which was reduced into writing vide DD No. 06 dated 21st April 2021 at SIU-I, Crime Branch, and in compliance with the provisions of Section 43 of the NDPS Act, ASI Rajbir Singh along with a team conducted a raid by laying trap and apprehended Nasir and Sajid upon being identified by the informer. b. Subsequently, they were served notices under Section 50 of the NDPS Act regarding their personal search and the search of their vehicle. From the truck bearing no. UP 15 CT 9536 that they were driving, a total of seven gunny bags carrying 315 kg of Cannabis, i.e. a commercial quantity, was recovered. b. Subsequently, they were served notices under Section 50 of the NDPS Act regarding their personal search and the search of their vehicle. From the truck bearing no. UP 15 CT 9536 that they were driving, a total of seven gunny bags carrying 315 kg of Cannabis, i.e. a commercial quantity, was recovered. c. Accordingly, a case vide FIR No. 67/2021 dated 21st April 2021 under Section 20/25/29 of the NDPS Act was registered at Crime Branch. d. In the course of investigation, during interrogation the accused had categorically disclosed that they were handed over the aforesaid consignment of Cannabis (Ganja) at Rajahmundry (Andhra Pradesh) by one Parvez with the instructions to deliver the same to one Parmod and some other parties, who would be meeting them at Jhilmil Industrial Area, New Delhi. It was also told to them by Parvez that as & when they reached Delhi, he will connect them to the consignee Parmod and others for safe delivery. e. Further, as per the investigation, Parmod was in regular touch with accused Parvez and had visited Rajahmundry in the month of April to finalize the quality of cannabis and finalize the deal. The charge-sheet in the instant case was filed before the concerned court under Section 20/25/29 of the NDPS Act after completion of the investigation. The said case is pending trial before the Special Judge, NDPS, Karkardooma Court, Delhi. 4. Learned APP for the State further drew attention of the Court to the Status Report filed by the State wherein reiterating the facts of investigation, it has strongly objected to the bail application filed by the petitioner on the grounds summarised as under: a. Source of accused Pravez is still absconding and avoiding his arrest. Non-bailable warrant was issued against the accused Pravez. Since, surveillance is on, the present accused could help the absconding accused. b. Further since the contraband recovered is of commercial quantity, the crime committed is of a very serious nature. c. Additionally, the accused is a habitual offender and he has previously been involved in a similar case registered in Baghpat, Uttar Pradesh vide FIR No. 367/20 dated 29th June 2020 under Section 8/20 of the NDPS Act. If bail is granted, he might get himself involved in the same crime again, and might also jump the bail. 5. c. Additionally, the accused is a habitual offender and he has previously been involved in a similar case registered in Baghpat, Uttar Pradesh vide FIR No. 367/20 dated 29th June 2020 under Section 8/20 of the NDPS Act. If bail is granted, he might get himself involved in the same crime again, and might also jump the bail. 5. Heard learned counsels for the parties and perused the record, specifically the averments made in the petition, the contents of the FIR, and the Status Report filed by the State. 6. In light of the aforesaid, it is pertinent to refer and analyse the provisions and objective of the NDPS Act. Section 37 of the Act reads as under: 37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (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 (i) the Public Prosecutor has been given an opportunity 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 offence and that he is not likely to commit any offence while on bail. (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. 7. In view of the gravity of the consequences of drug trafficking, the offenses under the Act have been made cognizable and non-bailable. The Section does not allow granting bail for offenses punishable under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity unless the two-fold conditions prescribed under the Section have been met. The conditions include: a) hearing the Public Prosecutor; and b) Satisfaction of the court based on reasonable grounds that the accused is not guilty of the offense and that he is likely to not commit an offense of a similar nature. 8. The conditions include: a) hearing the Public Prosecutor; and b) Satisfaction of the court based on reasonable grounds that the accused is not guilty of the offense and that he is likely to not commit an offense of a similar nature. 8. The fetters on the power to grant bail does not end here, they are over and above the consideration of relevant factors that has to be done while considering the question of granting bail. The court also needs to be satisfied before grant of bail about the scheme of Section 439 of the Cr.P.C. Thus, it is evident that the present section limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Cr.P.C. 9. The contours of Section 37 of the Act have been analysed by the Hon'ble Supreme Court in the case of Union of India v. Ram Samujh (1999) 9 SCC 429 . In this case, the Apex Court was required to adjudge the validity of the order on bail granted by the High Court in a case registered under the Act. The Hon'ble Court extracted the Statement of Objects and Reasons for the introduction of amended Section 37 of the Act through Bill No. 125 of 1988. It is relevant to extract those for the present analysis, which reads as: "6. The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus: "Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt. "(emphasis supplied) 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt. "(emphasis supplied) 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 murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to 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. Reason may be 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 v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 :1990 SCC (Cri) 65] as under: (SCCp. 104, para 24) "24. 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 this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. " 10. Thus, what is evident from the above is that the offenses prescribed under the Act are not only a menace to a particular individual but to the entire society especially, the youth of the country. Such offenses have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Such offenses have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years. Thus, in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the Act. The Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters. 11. As far as condition under Section 37(b)(i) is concerned, there is no ambiguity in its interpretation. It gives effect to the doctrine of audi alteram partem. Since the crime is an act against the society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to oppose a bail application under the Act. Additionally, under Section 37(b)(ii) of the NDPS Act, the court is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offense while on bail but the court must have reasonable grounds' for such satisfaction. 12. The term reasonable grounds' under Section 37(b)(ii) has been interpreted by the Hon'ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 . It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The special court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the accused but other family members were also involved. The Supreme Court set aside the order granting bail. In this context, it interpreted reasonable grounds' under Section 37 of the Act, as under: "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds ". The expression means something more than prima facie grounds. The Supreme Court set aside the order granting bail. In this context, it interpreted reasonable grounds' under Section 37 of the Act, as under: "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 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. 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 ". 13. Thus, the term 'reasonable grounds' is not capable of any rigid definition but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus, what may be reasonable in one set of facts may not be reasonable in another set of facts. However, the standard of satisfaction in such cases is more than mere satisfaction on a prima facie opinion. Thus, the court before exercising its discretion for granting the bail must record the reasonable grounds before granting bail to the accused. 14. The Supreme Court recently in the case of Union of India v. Md. Nawaz Khan (2021) 10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon'ble Supreme Court, the court prescribed the following test for granting bail under Section 37 of the Act: "20. 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. " 15. 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. " 15. Thus, the court has to be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the person accused of the offense under the Act is released on bail. The court has to be satisfied on the basis of reasonable grounds discernible from the facts and circumstances that the Petitioner is not guilty of offenses that the accused is charged with. Additionally, the court also needs to be satisfied that the person so released will not commit the offense while being on bail. Both the conditions are interlinked because the legislature intends that in cases where there is a possibility of commission of this grave offence under the Act, the person need not be released. It is so because if the person is released, he is most likely to repeat the offense, thus impacting the society at large. Thus, to not give any leeway to the accused, the court has to be satisfied about the dual conditions on reasonable grounds. 16. In light of the backdrop of the facts of the case, the aforesaid analysis of the provisions of the law, the jurisprudence pertaining thereto and the relevant rulings of the Hon'ble Supreme Court referred above, this Court finds no merit in the instant regular bail application and is not inclined to allow the same. 17. The petition is accordingly dismissed.