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2025 DIGILAW 442 (HP)

Yog Raj v. State of Himachal Pradesh

2025-03-22

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Yog Raj, has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the 'BNSS'), seeking the relief of bail, during the pendency of the trial, in a case, arising out of FIR No.14/2023, dated 6 th February, 2023, registered with Police Station Sadar, Patlikuhal, District Kullu, H.P., under Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’). 2. According to the applicant, he has falsely been implicated, in this case, and wrongly arrested by the police, for allegedly possessing contraband (charas), weighing 2 kilogram and 49 grams. 3. As per the case of the applicant, the said contraband was recovered, on the basis of some prior information and the provisions of Sections 41 and 42 of the NDPS Act, have not been complied with. 4. It is the further case of the applicant that there is huge difference in the quantity allegedly recovered and the quantity received in SFSL, as such, the entire case of the prosecution comes under the cloud of suspicion. 5. As per the applicant, there is no legally admissible evidence, connecting the applicant with the alleged offence. 6. Apart from this, the learned counsel appearing on behalf of the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial. 7. Earlier, the applicant has filed similar applications, before this Court, bearing Cr.MP(M) No.1738 of 2024 and Cr.MP(M) No.67 of 2025, which were dismissed as withdrawn on 4.11.2024 and 10.01.2025, respectively. 8. On the basis of the above facts, Mr. Bhuender Singh Ahuja, Advocate, appearing for the applicant has prayed that the applicant, in the present case, has duly fulfilled the twin conditions of Section 37 of the NDPS Act. 9. In order to buttress his contentions, Shri Bhupender Singh Ahuja, Advocate, has relied upon the decisions of Hon’ble Supreme Court in Petition for Special Leave to Appeal (Crl.) No. 4648 of 2024 , titled as Ankur Chaudhary versus State of Madhya Pradesh, Criminal Appeal No.475 of 2025, titled as Narcotic Control Bureau versus Lakhwinder Singh, and Muhd. 9. In order to buttress his contentions, Shri Bhupender Singh Ahuja, Advocate, has relied upon the decisions of Hon’ble Supreme Court in Petition for Special Leave to Appeal (Crl.) No. 4648 of 2024 , titled as Ankur Chaudhary versus State of Madhya Pradesh, Criminal Appeal No.475 of 2025, titled as Narcotic Control Bureau versus Lakhwinder Singh, and Muhd. Muslim @ Hussain versus State (NCT of Delhi), (2023) 3 SCR 697, as well as, the decision of a coordinate Bench of this Court, in Cr.MP(M) No.1373 of 2024, titled as Bheeme Ram versus State of H.P. 10. When put to notice, police has filed the status report, disclosing therein that on 06.02.2023, HC Sandeep Kumar No.23, along with other police official, was on patrolling duty to detect the crime relating to narcotics. 10.1. At about 11.30 a.m., when, the police party was present near Patlikuhal bridge, then, the I.O., received a secret information that one Yog Raj, who is coming in white coloured van, bearing registration No.HP34B-1895, from Sekri and will reach between 1.00-2.00 p.m. at Patlikuhal. As per the information, in case, he is nabbed in between, large quantity of Charas can be recovered. 10.2. According to the I.O., in case, he obtains the search warrants, the said vehicle can not be nabbed and possibility of removal of the contraband is also there. 10.3. The information was found to be authentic and reliable, as such, the I.O. has complied with the provisions of Section 42(2) of the NDPS Act and submitted the same to his superior officer. 10.4. Thereafter, the police had made efforts to search the independent witnesses, but, due to heavy snow fall, no independent witness was found. Thereafter, at about 12.55 p.m., they had put the picketing at zero point Segali and from there, the I.O, had called the Pradhan of Gram Panchayat and requested him to come to the spot, along with other person. 10.5. Due to heavy snow fall, no vehicle was found to be passing from the spot. However, at about 1.30 p.m., the I.O. noticed a white colour van, coming from Sekari side. The I.O. had made a plan to stop the said vehicle by parking another vehicle bearing No.HP49-1607, in the middle of the road. Thereafter, the vehicle was got stopped, and the driver, at once, had tried to flee away, however, with the help of other police officials, he was nabbed. The I.O. had made a plan to stop the said vehicle by parking another vehicle bearing No.HP49-1607, in the middle of the road. Thereafter, the vehicle was got stopped, and the driver, at once, had tried to flee away, however, with the help of other police officials, he was nabbed. 10.6. At about 1.40 p.m., Pradhan Gram Panchayat, Vijay Prakash, along with other person Om Prakash reached there. The person, who was nabbed, has disclosed his name as Yog Raj (applicant). 10.7. Thereafter, the car was searched and during search, a black coloured rucksack was found, which, on opening was found containing a black coloured substance. On smelling, the contraband was found to be cannabis and on weighment, the same was found to be 2 kilograms 49 grams. 10.8. Thereafter ruqua was submitted to the Police Station for registration of FIR. 10.9. After completing other codal formalities, the contraband so recovered was taken into possession and the accused (applicant) was arrested. 11. After completion of investigation, the final report was filed in the competent Court of law, in which the learned Special Judge, Kullu has taken the cognizance. 12. As per the status report, out of 17 witnesses, 7 have been examined and the case is now fixed for recording the statements of six prosecution witnesses i.e. at Sl. No.6, 9, 11, 13, 16 and 17, on 7.4.2025. 13. On the basis of the above facts, a prayer has been made to dismiss the application. 14. The applicant, in the present case, has been arrested, under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there, in the NDPS Act, in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 483 of the BNSS. Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested for the offence, involving commercial quantity of contraband. 15. Once, it has been held that the contraband allegedly recovered from the possession of the accused (applicant) falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then, the rigors of Section 37 of the NDPS Act come into play. 16. 15. Once, it has been held that the contraband allegedly recovered from the possession of the accused (applicant) falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then, the rigors of Section 37 of the NDPS Act come into play. 16. The contraband allegedly recovered from the applicant, admittedly, falls within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of NDPS Act are applicable, in this case. 17. 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. 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. 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. 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 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. 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.” 18. The Hon’ble Supreme Court in a case, Criminal Appeal No. 5544 of 2024 , titled as ‘Narcotics Control Bureau versus Kashif’ , Neutral Citation No. 2024 INSC 1045 , has again reiterated the law, as enumerated by it, in Mohit Aggarwal ’s case (supra). The Hon’ble Supreme Court, in this case, has held that the provisions of Section 37 of NDPS Act are mandatory in nature. 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 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. 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. 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. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (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. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” (self-emphasis supplied) 19. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” (self-emphasis supplied) 19. So far as the law laid down by the Hon’ble Supreme Court in Lakhwinder Singh ’s case supra, relied upon by the learned counsel for the applicant, is concerned, the Hon’ble Supreme Court has released the appellant in appeal, whereas, in this case, the applicant is not entitled to get any help from the above noted case, as in the said case, the substantive sentence, which was imposed upon the respondent was 10 years rigorous imprisonment, whereas, in the commercial quantity, the legislature, in its wisdom has prescribed the minimum sentence of ten years, which may extend upto 20 years and fine. As such, no benefit can be derived from the said decision. 20. So far as the decision of the Hon’ble Supreme Court in Ankur Chaudhary’ s case supra, relied upon by the learned counsel for the applicant, is concerned, in that case, the Hon’ble Supreme Court has granted the relief of bail, on the ground that the trial could not be concluded within the reasonable period, whereas, keeping in view the pace of trial, this Court is of the view that there is no undue delay, in the trial, in the present case, as, out of 17 witnesses, 7 witnesses have been examined and the case is fixed for 7.4.2025, for recording the statements of 6 witnesses. 21. So far as the case law, relied upon by the learned counsel for the applicant in Muhd. Muslim @ Hussain ’s case supra, is concerned, the facts and circumstances of the said case are entirely different, as, in the said case, 34 more witnesses were yet to be examined, whereas, in this case, the case is now listed for recording the statements of six witnesses on 7.4.2024 and thereafter only 4 witnesses will remain to be examined. 22. So far as the case law relied upon by the learned counsel for the applicant in Bheeme Ram ’s case supra, is concerned, the same, in no way, helps the case of the applicant, as, keeping in view the pace of trial, it cannot be said that there is no undue delay in the trial. 23. 22. So far as the case law relied upon by the learned counsel for the applicant in Bheeme Ram ’s case supra, is concerned, the same, in no way, helps the case of the applicant, as, keeping in view the pace of trial, it cannot be said that there is no undue delay in the trial. 23. In view of the above, there is nothing on the record to give an occasion for this Court to hold that the twin conditions, as enumerated in Section 37 of the NDPS Act, are in favour of the applicant, in the present case. 24. Considering all these facts, this Court is of the view that the applicant is not able to make out a case, on the basis of which, it can be said that the applicant has not committed the offence and in case, he is ordered to be released, on bail, he is not likely to commit any offence. As such, in the absence of the satisfaction of the twin conditions, the applicant is not held entitled for any relief, under Section 483 of the BNSS. Consequently, the bail application is dismissed. 25. Any of the observations, made herein above, 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.