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2025 DIGILAW 404 (HP)

Sahil Kumar v. State of H. P.

2025-03-19

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant Sahil Kumar has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS ’) for releasing him, on bail, during the pendency of the trial, in case FIR No. 133 of 2024, dated 10.11.2024, registered under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the ND & PS Act), with Police Station, Damtal. 2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated in the present case, as he has no concern whatsoever with the offence, for which, he has been arrested, by the police. 3. According to the applicant, story of the prosecution is highly improbable and rigors of Section 37 of the NDPS Act are not applicable in this case. 4. The applicant, through his counsel, has undertaken to abide by the terms and conditions, to be imposed by this court, in case, he is ordered to be released on bail. 5. On these submissions, a prayer has been made to allow the bail application. 6. When put to notice, the police has filed the status report, disclosing therein, that on 10.11.2024, ASI Satinder Singh, I.O., CIA Staff, Nurpur has submitted a ruqua to Police Station, Damtal, disclosing therein that he alongwith other police officials was on patrolling duty, as well as, duty to detect the crime relating to excise and narcotics. When, the police party was conducting patrolling in Nurpur, Kandwal, Laudhwan, Bhadroya, Damtal and Milwan, and was present near Ranchi Mod, then, he received a secret information at about 6:00 p.m. that a vehicle No. JK-08L-1571 (White coloured Alto) was coming from Milwan side towards Pathankot, in which, Karanpreet Singh, S/o Ajeet Singh and Vishal Kumar, S/o Kamall Kishore were the occupants. As per the information, the aforesaid persons were indulged in the business of selling the charas/cannabis. 6.1 As per the informer, both the persons, namely, Karanpreet Singh and Vishal are very clever and they have sent Sahil Kumar (applicant), S/o Mehar Chand to conduct recce on his motorcycle, bearing No. JK-08N- 5726. As per the information, the aforesaid persons were indulged in the business of selling the charas/cannabis. 6.1 As per the informer, both the persons, namely, Karanpreet Singh and Vishal are very clever and they have sent Sahil Kumar (applicant), S/o Mehar Chand to conduct recce on his motorcycle, bearing No. JK-08N- 5726. The said information was found to be authentic and reliable and according to the I.O., in case of delay, the said contraband could have been removed, as such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the ruqua to SDPO, Indora, through Const.Arun. 6.2 Thereafter, the picketing was put near grain market towards Gilwan with the help of other police officials. At that time, Incharge HHC Santosh Raj was apprised about the aforesaid fact and associated in the raiding party. In the meanwhile, I.O. noticed two persons coming from Damtal chowk side, who, on inquiry, disclosed their name as Mohan Singh, S/o Rasal Singh and Dharamvir, S/o late Sh. Subhash Chand. Both of them were apprised about the information and requested to associate the police party as independent witnesses. On the request of the I.O., they were ready to be independent witnesses. The I.O. started waiting for the aforesaid motor-cycle. At about 6:50 p.m., aforesaid motorcycle (blue and black coloured pulser) reached there. The I.O. signaled to stop the vehicle. After the motor-cycle, aforesaid Alto car was also coming, On seeing the motorcycle stopped by the Police, driver of the car had stopped the car at a distance of about 10 meters. HC Ranjit Singh was directed to be present near the motorcycle and rest of the police officials had overpowered the persons, traveling in the Alto car. 6.3 On inquiry, driver of the Alto car disclosed his name as Karanpreet Singh, whereas, the person sitting by his side disclosed his name as Vishal. The driver of the motor-cycle disclosed his name as Sahil Kumar (applicant). 6.4 All the three persons were apprised about the secret information. In the presence of the independent witnesses, the vehicle was searched. In the vehicle, a black coloured rucksack was found, which, on opening was found to be containing 6 packets, having stick shaped black coloured substance, which, on smelling was founded to be charas. The said fact was also confirmed by the aforesaid three persons, who were nabbed by the Police. In the vehicle, a black coloured rucksack was found, which, on opening was found to be containing 6 packets, having stick shaped black coloured substance, which, on smelling was founded to be charas. The said fact was also confirmed by the aforesaid three persons, who were nabbed by the Police. On weighment, the said Charas was found to be 3.20 kg. Other codal formalities were completed and all the three accused persons were arrested. 6.5 After receiving positive report from the SFSL, Junga, the Police prepared the charge-sheet. 6.6 In the status report, no other criminal history of the applicant has been pleaded. 6.7 On the basis of above facts, it has been apprehended in the status report that in case, the applicant is released on bail, he may not be available for trial and he may again indulge in the same activities and may also coerce the witnesses. Hence, a prayer has been made to dismiss the application. 7. Admittedly, the contraband, which has allegedly been recovered, in the present case, falls within the definition of ‘commercial quantity’. Once, this fact has been stated by the police in the status report, then, admittedly, rigors of Section 37 of the NDPS Act are applicable in the present case. 8. When, rigors of Section 37 of the NDPS Act are applicable, in that eventuality, before releasing the applicant, on bail, it is incumbent upon this Court to give findings, with regard to fulfilment of twin conditions, as enumerated, under Section 37(b) of the NDPS Act. These conditions are (i) that the applicant has not committed the offence, for which he has been arrested, and (ii) that while on bail, he will not commit any offence. 9. The provisions of Section 37 of the NDPS Act, have been discussed and explained by a three-Judge Bench of the Hon’ble Supreme Court, way back in the year 2004, in cases, titled as Collector of Customs, New Delhi versus Ahmadalieva Nodira, reported in (2004) 3 Supreme Court Cases 549, and Narcotics Control Bureau versus Dilip Pralhad Namade, reported in (2004) 3 Supreme Court Cases 619. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under: “9. As observed by this Court in Union of India v. Thamisharasi & Ors. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under: “9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court 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. 10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based for reasonable grounds. 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 existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. 11. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. 11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.” 10. The term ‘reasonable’ has elaborately been discussed by the Hon’ble Supreme Court, in case, titled as Union of India versus Shiv Shanker Kesari, reported in (2007) 7 Supreme Court Cases 798. The relevant paras 8 to 11 of the judgment are reproduced, as under: “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 difficult to give an exact definition of the word “reasonable”. “7. … In Strouds Judicial Dictionary, Fourth Edition, page 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. (See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497 . and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [ (1989) 1 SCC 532 ]. 9. “9. ...It is often said that "an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space". The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ‘the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined’. The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ‘the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined’. It is not meant to be expedient or convenient but certainly something more than that.” 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 Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315 ). 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 judgment of acquittal and recording a finding of not guilty.” 11. This view has again been reiterated by the Hon’ble Supreme Court in a latest decision, in case, titled as State of Kerala and others versus Rajesh and others, reported in (2020) 12 Supreme Court Cases 122. The relevant paras 18 to 21 of the judgment are reproduced, as under: “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429 , it has been elaborated as under: “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429 , it has been elaborated as under: “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 deathblow 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 )] as under: ‘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. 8. 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, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (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. 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 accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. 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 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 offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 20. 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 existence of such facts and circumstances as are sufficient 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. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.” 12. 21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.” 12. In a recent decision, in case, titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444 , the Hon’ble Supreme Court has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under: “10. The provisions of Section 37 of the NDPS Act read as follows: “[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. 11. It is evident from a plain reading of the non obstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub- section (1) of Section 37 are also to be factored in. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub- section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In “Collector of Customs, New Delhi v. Ahmadalieva Nodira”, (2004) 3 SCC 549 , a decision rendered by a Three Judges Bench of this Court, it has been held thus: “7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. 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 existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” [emphasis added] 13. The expression “reasonable ground” came up for discussion in “ State of Kerala and others vs. Rajesh and others ” (2020) 12 SCC 122 and this Court has observed as below: “20. 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 expression “reasonable ground” came up for discussion in “ State of Kerala and others vs. Rajesh and others ” (2020) 12 SCC 122 and this Court has observed as below: “20. 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 existence of such facts and circumstances as are sufficient 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.” [emphasis added] 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 13. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 13. Moreover, the view of this Court is being guided by the decision of the Hon’ble Supreme Court in Criminal Appeal No.5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Citation No. 2024 INSC 1045 , wherein, it has been held that in case of commercial quantity of the contraband, the accused shall generally be not released on bail, until or unless, the conditions, as per Section 37 of the NDPS Act, are held to be existed in favour of the applicant. Relevant paragraphs 8 and 39 of the said judgment are reproduced, as under:- “8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions. Xxx xxx xxx xxx 39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.” (self-emphasis supplied) 14. In the absence of the twin conditions, as enumerated, under Section 37(1)(b) of the NDPS Act, this Court cannot accept the arguments of learned counsel, appearing for the applicant, who has sought the release of the applicant, on bail, during the pen-dency of the trial. 15. Considering the observations and discussions, made above, this Court is of the view that the applicant is not entitled to relief of bail, at this stage. As such, the present application is dismissed. 16. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.