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2025 DIGILAW 973 (HP)

Khem Raj v. Narcotics Control Bureau

2025-05-09

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Khem Raj has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the ‘ BNSS ’), for releasing him on bail, during the pendency of trial, in NCB Crime No. 31 of 2022, dated 22 nd April, 2022, registered with Police Station NCB Sub Zone, Mandi, District Mandi, H.P., under Sections 8 , 20, 29 and 61 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’), on the ground that the present case is based on totally absurd, baseless and imaginary story, having no truth in it. 2. As per the applicant, he has no role in the commission of the alleged offence, for which, he has been arrested, in this case. According to him, he is a respectful person of the society and the recovery, in question has been planted against the applicant, as, nothing was recovered from him. 3. It has further been pleaded in the application that the applicant has falsely been implicated, in this case, on the basis of the confession statement of the main accused, recorded under Section 67 of the NDPS Act, which is not admissible as evidence and apart from the said statement, there is no legally admissible evidence. 4. According to the applicant, he is an innocent person and has falsely been implicated, in this case, by the police, as, no iota of evidence could be collected by the investigating agency against him, in this case. 5. Apart from this, bail has also been sought on the ground of undue delay in the trial, as, according to the learned counsel for the applicant, despite the fact that applicant is in custody for the last 32 months, the prosecution could only examine 10 witnesses out of total 16 witnesses, in the trial Court. 6. The learned counsel appearing for the applicant has placed on record the statements of eight prosecution witnesses, recorded before the learned trial Court, and highlighted that nothing has been deposed by these witnesses against the applicant, who has allegedly been arrested, in this case. 7. Learned counsel for the applicant has placed on record the print out of the order dated 20.03.2025 and 22.04.2025. 7. Learned counsel for the applicant has placed on record the print out of the order dated 20.03.2025 and 22.04.2025. By way of producing these two orders passed by the learned trial Court, efforts have been made to demonstrate that the chances of conclusion of trial against the applicant are not so bright. 8. Learned counsel for the applicant has contended that keeping the applicant in the judicial custody amounts to violation of his fundamental right, especially under Article 21 of the Constitution of India. Learned counsel has further contended that the rigors of Section 37 of the NDPS Act are not applicable, in this case, as, there is no likelihood of the applicant committing any offence, if he is released on bail. 9. Lastly, the applicant has given certain undertakings, for which, the he is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 10. The applicant has also tried his luck by filing similar bail applications, bearing CrMPs (M) No. 2796 of 2022, 1287 of 2023, 3188 of 2023 and 614 of 2024, which have been dismissed by this Court. 11. On the basis of the above facts, learned counsel appearing for the applicant has given certain undertakings, to which, the applicant is ready to abide by, in case, the applicant is ordered to be released on bail. 12. On the basis of the above facts, a prayer has been made to allow the bail application. 13. When put to notice, the respondent has filed the status report, disclosing therein that the bail application is not maintainable, in view of the bar, under Section 37 of the NDPS Act, as the contraband recovered, in this case, falls in the category of ‘commercial quantity’, i.e. charas, weighing 1.688 kg. The said contraband was recovered on 22 nd April, 2022, from the conscious possession of co- accused Sukhchain @ Kaka, s/o Sh. Sadi, r/o Samudhgarh, P.O. Kanargadh, P.S. Dhuri, Distt. Sangroor, Punjab; and Virender Mahendroo @ Sunny, s/o Prem Kumar, r/o H.No. 127, Gyani Zail, Singh Colony, Vill. Amargadh, Tehsil Malerkotla, Distt. Sangroor, Punjab, as such, the case vide NCB Crime No. 31/2022 under Sections 20 and 29 of the NDPS Act, has been registered against them. 13.1. Sadi, r/o Samudhgarh, P.O. Kanargadh, P.S. Dhuri, Distt. Sangroor, Punjab; and Virender Mahendroo @ Sunny, s/o Prem Kumar, r/o H.No. 127, Gyani Zail, Singh Colony, Vill. Amargadh, Tehsil Malerkotla, Distt. Sangroor, Punjab, as such, the case vide NCB Crime No. 31/2022 under Sections 20 and 29 of the NDPS Act, has been registered against them. 13.1. It is the further case of the NCB that accused- Sukhchain and Virender Mahendroo had disclosed the name of applicant-Khem Raj, as supplier of the contraband, as they had disclosed that they were instructed by one person, namely Laskar Singh, uncle of accused-Sukhchain Singh, who is stated to be absconding, to procure charas from Khem Raj (applicant). Accused- Sukhchain Singh and Virender Mahendroo had also disclosed the mobile number of the applicant as ‘80912 18693’ and that of receiver Laskar Singh as ‘62394 12587’. During the analysis of the CDRs of the accused persons, namely Khem Raj, Sukhchain Singh and Laskar Singh, it was found that they were in touch with each other. They have reproduced the CDR analysis as under: Applicant-Khem Raj contacted Laskar Singh 14 times on the date of seizure of contraband, i.e. 22 nd April, 2022, and Laskar Singh contacted applicant-Khem Raj 16 times. Applicant-Khem Raj contacted Laskar Singh on his mobile phone once, on 28 th January, 2022. Applicant-Khem Raj contacted Sukhchain once, and Sukhchain contacted applicant-Khem Raj once, on the date of seizure of the contraband. The roaming status of his mobile phone shows his presence in the State of Himachal Pradesh during seizure of the contraband. 13.2. It is the further case of the NCB that during investigation, the mobile number of accused-Khem Raj (applicant) was found to be registered in the name of his brother-in-law, Hukum Chand, s/o Dagu Ram. Statement of said Hukum Chand has been recorded under Section 67 of the NDPS Act, wherein he has confessed that he had supplied the sim, issued in his name, to his brother-in-law (applicant). 13.3. During investigation, it has also been found that on the instructions of applicant, on 22 nd April, 2022, an amount of ?50,000/- was transferred from the account of Laskar Singh to the SBI Bank Account of Hira Singh, s/o Nok Singh, who is brother-in-law of the applicant. 13.3. During investigation, it has also been found that on the instructions of applicant, on 22 nd April, 2022, an amount of ?50,000/- was transferred from the account of Laskar Singh to the SBI Bank Account of Hira Singh, s/o Nok Singh, who is brother-in-law of the applicant. At the further instructions of the applicant, his brother-in-law has transferred this amount to Karam Singh, father of the applicant, on 27 th April, 2022, by way of two transactions of Rs.25,000/- each. This fact has been disclosed by Hira Singh (brother-in-law of the applicant), in his voluntary statement, recorded under Section 67 of the NDPS Act. 13.4. Mentioning the criminal history of the applicant, it has been contended on behalf of the respondent, that the applicant is a habitual offender, as a case, vide FIR No. 283 of 2017, under Sections 20 and 29 of the NDPS Act, has already been registered against the applicant in Police Station Sadar, District Mandi. 13.5. In addition to this, it has also been stated that the case has been fixed for recording the statements of prosecution witnesses at Sl. No.9 to 12, before the learned trial Court. 13.6. The bail application has also been opposed by the respondent, on the ground that the present application does not disclose any fresh ground or material change in the circumstances, which warrants release of the applicant on bail. 13.7. Heavily relying upon the above facts, it has been prayed that the rigors of Section 37 of the NDPS Act are applicable, in this case, and, as such, the bail application is liable to be dismissed. 14. The accused (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 439 CrPC. 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. 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 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 question, regarding the applicability of Section 37 of the NDPS Act, has been discussed by the Hon’ble Supreme Court, in a recent decision, in Criminal Appeal No.5544 of 2024 , titled as Narcotics Control Bureau versus Kashif , Neutral Citation No. (2024 INSC 1045) . Relevant paragraphs 8 and 39 of the 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. 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. (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. (emphasis supplied)” 17. In view of the above, now, the question, which arises for determination, before this Court, is whether the custody of the applicant, for about 32 months, is sufficient to conclude that twin conditions, as enumerated under Section 37 of the NDPS Act, are existing in favour of the applicant or not. 18. Learned counsel appearing for the applicant has relied upon the decision of the Hon’ble Supreme Court in Special Leave to Appeal Crl. Nos.16642/2023 , titled as Shince Babu versus The State of Kerala & Another (MANU/SCOR/27340/2024) . 18. Learned counsel appearing for the applicant has relied upon the decision of the Hon’ble Supreme Court in Special Leave to Appeal Crl. Nos.16642/2023 , titled as Shince Babu versus The State of Kerala & Another (MANU/SCOR/27340/2024) . With due respect to the law laid down by the Hon’ble Supreme Court, in the said case, the same, in no way, helps the case of the applicant. 19. So far as the decision of the Hon’ble Supreme Court, relied upon by the learned counsel for the applicant, in Special Leave to Appeal (Crl.) No(s).7470 of 2024 , titled as Ajay Rathore versus The State of Chhatisgarh , (MANU/SCOR/92375/2024) , the Hon’ble Supreme Court has granted the bail to the applicant, in the said case, in view of nature of contraband i.e., cough syrup containing Codeine Phosphate and on the ground of alleged non-compliance of Section 42 of the NDPS Act. 20. So far as the decision of the Hon’ble Supreme Court, relied upon by the learned counsel for the applicant, in Special Leave to Appeal (Crl.) Nos.1830 of 2024 , titled as Sirajul Molla versus The State of West Bengal , (MANU/SCOR/62245/2024), the Hon’ble Supreme Court has granted the bail to the applicant, in the said case, in view of facts and circumstances of that case. 21. In this case, learned counsel for the applicant has also placed on record the print out of the statements of eight prosecution witnesses, recorded by the learned trial Court to demonstrate that no case is made out against the applicant, what to talk about the case, which the prosecution would be obliged to prove beyond the shadow of reasonable doubt. 22. This argument of the learned counsel for the applicant holds no water, as, it is the sole prerogative of the learned trial Court to see the evidentiary value of the statements of the witnesses examined by the prosecution. The prerogative of the learned trial Court to discuss the evidence, cannot be taken away, by this Court, while deciding the question of bail. 23. Considering all these facts, there is no ground to pass any order in favour of the applicant, under Section 483 BNSS . Consequently, the bail application of the applicant is dismissed. 24. The prerogative of the learned trial Court to discuss the evidence, cannot be taken away, by this Court, while deciding the question of bail. 23. Considering all these facts, there is no ground to pass any order in favour of the applicant, under Section 483 BNSS . Consequently, the bail application of the applicant is dismissed. 24. However, in the normal circumstances, this Court would not direct the learned trial Court to expedite the trial, as, this Court cannot interfere in the day-to-day working of the learned trial Court, but, keeping in view the fact that as per the order dated 22.4.2025, the N.C.B., has sought time to file the supplementary challan and the learned trial Court has adjourned the matter, on this ground, which is antitheses to the concept of speedy trial, as such, the learned trial Court is requested to decide the matter within a period of three months from today and in order to achieve the said goal, even to prepone the matter and conduct the trial on day-to-day basis. 25. 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. Registry is directed to communicate this order to the quarter concerned forthwith.