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2025 DIGILAW 562 (HP)

Jishan v. State of H. P.

2025-03-28

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant Jishan has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘the B.N.S.S.’) for releasing him, on bail, during the pendency of the trial, in case FIR No. 122 of 2023, dated 18.8.2023, registered under Sections 22-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS’) and Section 196 of the Motor Vehicles Act, (hereinafter referred to as ‘the M.V. Act’), with Police Station, Puruwala, District Sirmaur, H.P. 2. According to the applicant, he is presently lodged in Model Central Jail, Nahan and is in judicial custody, since 23.8.2023. Investigation, in the present case, is also stated to be complete. 2. According to the applicant, he has falsely been implicated in this case. 3. It is the further case of the applicant that he is an innocent person and has no concern whatsoever with the alleged offence. 4. Apart from this, the applicant has also highlighted the violation of Section 52-A of the NDPS Act, as, according to him, the entire bulk was not sent for the chemical analysis, rather representative samples were forwarded. The process of drawing the samples has also been challenged. 5. Apart from this, the applicant has pointed out that there is undue delay in conclusion of the trial, as only one witness has been examined, out of 18 witnesses. 8. On the basis of above facts, Mr. K.S. Gill, Advocate, appearing for the applicant, has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail. 9. When, put to notice, Police has filed the status report, disclosing therein that on 18.8.2023, HC Rakesh Kumar No. 224/ I.O. has submitted a ruqua was submitted in Police Station, Puruwala, disclosing therein, that HC Rakesh Kumar, alongwith other police officials, was on patrolling duty, and the duty to check the crime, relating to Excise and Narcotics. 9.1 As per the status report, at about 11:50 p.m., on 18.8.2023, when, the I.O. was present near Medical College, Rampur Ghat, then, he received a secret information regarding indulgence of Jishan (applicant), in the transportation/business of prohibited drugs/narcotic drugs. 9.2 As per the I.O., in case of delay, there are chances that the contraband could be removed from its place. 9.2 As per the I.O., in case of delay, there are chances that the contraband could be removed from its place. As such, he has complied with the provisions of Section 42(2) of the ND & PS Act. 9.3 At about 12:40 p.m., picketing was done at a place near Gojar Sadar Mod. Efforts to associate the independent witnesses were made, but being odd hours of night, no one was found there. At about 1:10 p.m. in the midnight, the I.O. noticed one motorcycle, being driven by its driver, bearing No. UK16D-7729. When, he was searched, total 800 capsules of Diclomine-Hydrochloride, Tramadol Hydrochloride & Acetaminophen were found, upon which, Diclomine-Hydrocholoride IP 10 mg, Tramadol Hydrochloride IP 50 mg, Acetaminophen IP 325 mg was found written. Since, Tramadol was found in these capsules, as such, violation of ND & PS Act was found, since the applicant could not produce the license/permit or the prescription slip to carry those capsules. As such, he was arrested. Other codal formalities have been completed. 9.4 Report from the SFSL is stated to have been received, according to which, out of 800 capsules, the weight of Tramadol powder/mixure, is stated to be 345.600 grams. The same is stated to be falling in ‘commercial quantity’. 9.5 Investigation, in the present case, is stated to be completed. 9.6 As per the status report,, the charge sheet has been filed on 8.2.2024 and the Competent Court of law has taken cognizance. Charges are also stated to have been framed, in this case. The case is now stated to be listed for recording statements of PW-5, PW-12 and PW-18, on 24.3.2025. 9.7 On the basis of above facts, a prayer has been made to dismiss the application. 9.8. It has been apprehended that in case the applicant is released on bail, he may again indulge in same activities and may coerce the witnesses. 9.9. Apart from this, it has been apprehended that in case, the applicant is released on bail, he may not be available for trial. 9.10. On the basis of above, a prayer has been made to dismiss the bail application. 10. 9.9. Apart from this, it has been apprehended that in case, the applicant is released on bail, he may not be available for trial. 9.10. On the basis of above, a prayer has been made to dismiss the bail application. 10. The object of ND & PS Act, and non- compliance of Section 52 (A) of the ND & PS Act, as well as, Section 37 of the ND & PS Act, has now been mandated by 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. 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) 11. In view of the judgment of Hon’ble Supreme Court in Kashif’s case (supra), no benefit could be derived by the applicant from the decision of this Court in Cr.M.P.(M) No. 1985 of 2023, titled as, ‘Deep Kumar versus State of H.P.’. (self emphasis supplied) 11. In view of the judgment of Hon’ble Supreme Court in Kashif’s case (supra), no benefit could be derived by the applicant from the decision of this Court in Cr.M.P.(M) No. 1985 of 2023, titled as, ‘Deep Kumar versus State of H.P.’. Even otherwise, facts and circumstances of the present case are entirely different from the aforesaid case, as in this case, specific apprehensions have been expressed by the Police that in case, the applicant is released on bail, he may not be available for trial and he may again coerce the witnesses. 12. The applicant is resident of Uttrakhand, as such, at this stage, apprehensions, which have been expressed by the Police, cannot be said to be unfounded. 13. Considering the factual position, as submitted in the present application, this Court is of the view that in light of the judgment of Hon’ble Supreme Court in Kashif’s case (supra), the applicant is not able to make out a case, for grant of bail, in this case, as, at this stage, there is nothing on record to conclude that applicant has not committed the offence and in case, he is released on bail, he will not commit any offence. Without compliance of Section 37 of the ND & PS Act, no relief can be granted to the applicant. As such, the present application is dismissed. 14. 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.