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2024 DIGILAW 84 (UTT)

Jagjeet Singh @ Jaggu v. State of Uttarakhand

2024-02-16

RAKESH THAPLIYAL

body2024
JUDGMENT : Rakesh Thapliyal, J. 1. The present applicant is seeking bail in relation to FIR No.114 of 2023, for the offences punishable under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), Police Station Rudrapur, District Udham Singh Nagar. 2. The brief facts of the case are that on 20.02.2023, the complainant Sub-Inspector Mahesh Kandpal lodged the first information report that when he was on patrolling duty with police party near grocery shop at Bindukhera, owned by the present applicant, after seeing the patrolling party, the people standing near the shop started running. When the complainant Sub-Inspector inquired about this, the applicant accepts the guilt and told that he is carrying contraband (medicine). The alleged contraband (medicine) was admittedly is a commercial quantity. 3. It is submitted by the learned counsel for the applicant that the recovery was planted and the present applicant has been falsely implicated and the only evidence against the present applicant is the confessional statement of the present applicant which is hit by Section 25 of the Evidence Act, as the same cannot be read as against the applicant. 4. It is submitted that there is no public witness and furthermore, there is no compliance of Sections 42 and 50 of the NDPS Act. He has further submitted that the present applicant is languishing in jail since 20.02.2023 and he is not a previous convict. 5. Learned Senior Counsel Mr. D.K. Sharma has placed reliance on the judgement of the Hon’ble Apex Court in the case of Boota Singh and others Vs. State of Haryana reported in 2021 SCC Online SC 324. By placing reliance on the said judgment, he submits that there is no compliance of Section 42 of the NDPS Act, and this itself vitiates the entire proceedings against the present applicant. 6. In reference to this, the learned Senior Counsel further submits that the Investigating Officer in short counter affidavit filed on 18.10.2023, admits this fact that there is no compliance of Section 42 of the NDPS Act, which is reflected from the statement as given in para 4 of the affidavit filed by the Sub-inspector. 7. Mr. 6. In reference to this, the learned Senior Counsel further submits that the Investigating Officer in short counter affidavit filed on 18.10.2023, admits this fact that there is no compliance of Section 42 of the NDPS Act, which is reflected from the statement as given in para 4 of the affidavit filed by the Sub-inspector. 7. Mr. Saurabh Pandey, the learned Brief Holder for the State has also not disputed this fact in view of the statement given in para 4 of the short counter affidavit that there is no compliance of Section 42 of the NDPS Act. 8. Though in the affidavit, it is contended that the applicant is not a previous convict but the learned Senior Counsel, Mr. D.K. Sharma, submits to this Court that, in fact, the applicant has no criminal history. It is also submitted that in this case, the chargesheet has already been filed and there are total 14 witnesses but till date only one witness has been examined. No doubt, the alleged contraband (medicine) which is recovered from the present applicant is a commercial quantity, and therefore, at this juncture, the condition as stipulated under Section 47 of the NDPS Act has to be examined. It is admitted by the Investigating Officer in the affidavit that there is no compliance of Section 42 of the NDPS Act, therefore, in view of the judgement relied by the learned Senior Counsel for the applicant, there are reasonable grounds for believing that the applicant is not guilty of such offences. 9. Apart from this, admittedly, as per the statement as given by the learned Senior Counsel for the applicant, the present applicant has no criminal antecedent and till date out of fourteen witnesses, only one witness has been examined, therefore, there is no possibility that the trial will be concluded within a short period and this fact cannot be ignored that the present applicant is in jail since 20.02.2023. Furthermore, in this case, since the investigation has already been concluded and trial is going on, therefore, this Court is of the view that since the applicant is in jail since 20.02.2023, the condition as stipulated under Section 37 of the NDPS Act can be dispensed with, at this stage, particularly, when the applicant has no criminal history. 10. Furthermore, in this case, since the investigation has already been concluded and trial is going on, therefore, this Court is of the view that since the applicant is in jail since 20.02.2023, the condition as stipulated under Section 37 of the NDPS Act can be dispensed with, at this stage, particularly, when the applicant has no criminal history. 10. Learned State Counsel has seriously opposed the bail application by saying that by virtue of Section 37 of the Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail. 11. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same 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. 12. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine 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. 13. 12. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine 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. 13. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied 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. But, denial of bail does not give unfettered liberty to the prosecution to keep a person in custody without conducting a trial. 14. Learned counsel for the applicant further submits that the applicant, who has already spent one year in custody, is entitled for bail, particularly, when he has no criminal antecedents. In respect of the period of incarceration, which the applicant has suffered learned counsel for the applicant has placed reliance on the judgments rendered by the Hon’ble Supreme Court in the case of Mohd Muslim @Hussain v State(NCT of Delhi) 2023 SCC OnLine SC 352 and in the case of Rabi Prakash vs. The State of Odisha 2023 SCC OnLine SC 1109. In paragraph 4 in the case of Rabi Prakash (supra), the Hon’ble Supreme Court observed as follows:- “As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as, the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 15. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 15. Learned counsel for the applicant has also placed reliance upon a judgment rendered by the Hon’ble Supreme Court in the case of Dheeraj Kumar Shukla Versus State of Uttar Pradesh, (2023) SCC OnLine SC 918, wherein, the Hon’ble Supreme Court, while granting bail to the accused from whom 92 kgs Ganja was recovered, observed as under:- “It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.” 16. By placing reliance on the aforesaid judgments, learned counsel for the applicant submits that in the present case, out of total fourteen witnesses, only one witness has been examined; the applicant is in jail since 20.02.2023, therefore, the condition, as stipulated under Section 37 of the Act, can be dispensed with, at this stage. 17. Having considered the submissions of the learned counsel for the applicant as well as Mr. Saurabh Pandey, Brief Holder for the State and in view of the observations made in the judgments, as relied upon by the learned counsel for the applicant, that the prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 32(1(b)(ii) of the NDPS Act, there is no reason to keep the applicant behind the bars for an indefinite period. Further after taking into consideration the fact that the applicant has no criminal history, and he is in jail since for last one year and only one witness out of total fourteen witnesses has been examined, the conditions, as stipulated under Section 37 of the Act, can be dispensed with at this stage. Further after taking into consideration the fact that the applicant has no criminal history, and he is in jail since for last one year and only one witness out of total fourteen witnesses has been examined, the conditions, as stipulated under Section 37 of the Act, can be dispensed with at this stage. Therefore, without expressing any opinion on the merits of the case, this Court is of the view that the applicant deserves for bail. Accordingly, the Bail Application is allowed. 18. Applicant-Jagjeet Singh @ Jaggu is ordered to be released on bail subject to his furnishing a personal bond and two reliable sureties, each in the like amount, to the satisfaction of the Court concerned with the following conditions:- (i) Applicant shall attend the Trial Court regularly and he shall not seek any unnecessary adjournment. (ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case. (iii) Applicant shall not leave the country without previous permission of the Trial Court. (iv) In case the applicant is found to be involved in future in any other similar case, or misuses or violates any of the conditions imposed on him while granting bail, the prosecution is free to move an application for cancellation of bail.