Nazir Khan vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is an accused of offence under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’), in case FIR No. 62 of 2021 dated 31.5.2021, registered at Police Station Puruwala, Tehsil Paonta Sahib, District Sirmour, H.P. Petitioner is in custody since 6.6.2021.

Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in above noted case on the grounds that petitioner is in custody since long. His wife is pregnant and is under observation and medical check-up at Civil Hospital, Paonta Sahib, District Sirmour, H.P. The trial in the case is likely to consume long period of time. The delay in trial will adversely affect his future prospects. It has further been contended on behalf of the petitioner that he is not involved in the alleged offence. He has been falsely implicated with the aid of Section 29 of the Act only on the basis of statement of co-accused recorded under Section 67 of the Act. As per petitioner, the statement so recorded cannot be used as a legal piece of evidence against him. The allegations against the petitioner are false. Petitioner has no past criminal history. The investigation of the case is already completed. He is ready to abide by all conditions as may be imposed against him. He shall not abscond from the course of justice and shall ensure regular presence for the purpose of trial.

In reply, the respondent has placed on record status report. It is stated that on 31.5.2021, at about 3.25 A.M. a Truck bearing No. HP-17E-8213 enrouted from Paonta Sahib to Shirpur was apprehended by the police party near place Bangaran on the basis of a secret information after complying with the requirement of Section 42 of the Act. The truck was being driven by one Usuf Ali and was occupied by two other persons named Kadar Ali and Tauhid Ali. On search of the vehicle, total 303.056 k.g. of Ganja was recovered and seized. The occupants of the vehicle were arrested. During investigation one of the accused Tauhid Ali disclosed to the police on 6.6.2021 that a few days earlier, he had handed over 8 packets of Ganja to the present bail petitioner and on such information, the bail petitioner was arrested on 6.6.2021. While in police custody, petitioner made a disclosure statement under Section 27 of the Indian Evidence Act and consequently got recovered 8 packets of Ganja, total weighing 81.635 k.g. The police also stated to have discovered during investigation that the contraband was smuggled by co-accused Usuf Ali and Kedar Ali from Jarabad (Gauhati). Total contraband seized by the police in present case is 425.635 k.g. of Ganja.

I have heard learned counsel for the parties and have also gone through the records carefully.

The case in hand involves commercial quantity of contraband and thus, the rigors of Section 37 of the Act shall become applicable. Though, the petitioner was apprehended on the lead provided by one of the co-accused but the non-admissibility of the statement of co-accused made under Section 67 of the Act will not be of any help to the petitioner as Ganja weighing 81.635 k.g. was recovered as a fact in pursuance to disclosure made by the petitioner under Section 27 of the Indian Evidence Act.

In order to succeed in present petition, the petitioner has to convince the Court as to his non-involvement in the alleged offence. Section 37 of the Act specifically interdicts the Courts from granting bails to accused of offence under NDPS Act, involving commercial quantity of contraband unless the Court comes to the conclusion that no case under the Act is made out against the bail petitioner and further that the bail petitioner if released on bail is not likely to commit any offence during the period of such liberty. In the given facts of the case, this Court finds that no such findings can be recorded in favour of the petitioner.

In State of Kerala and others Vs. Rajesh and others, (2020) 12 Supreme Court Cases 122, it has been held as under: -

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.

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.”

Similarly, in Satpal Singh Vs. State of Punjab (2018) 13 Supreme Court Cases 813, the three Judges Bench of Hon’ble Supreme Court has held as under:-

“3. Under Section 37 of the NDPS Act, when a person is accused of an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and in case a Public Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have consciously put such stringent restrictions on the discretion available to the court while considering application for release of a person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court.”

Thus, in the teeth of section 37 of NDPS Act, accused can be released on bail in the cases involving commercial quantity of contraband, if all these conditions are satisfied viz opportunity of opposing the bail is granted to the prosecutor, the Court records satisfaction to the effect that there are reasonable grounds for believing the accused not guilty of such offence and that he/she with certainty can be believed not to commit the same offence during the period of bail.

The implication of the petitioner in the instant case prima-facie cannot be said to be without justification. That being so, this Court is unable to return findings that there are reasonable grounds to believe that petitioner is not guilty of charged offence. In addition, the possibility of petitioner indulging in similar or any other offence during bail cannot be ruled out. In such circumstances, the right of the petitioner, if any, to be released on bail gets clogged by the mandate of Section 37 of the Act. The conditions of Section 37 of the Act are to be read conjunctively and absence of any single condition thereof, dis - entitled a person from relief of bail.

Learned counsel for the petitioner has placed reliance on judgment passed by the Hon’ble Supreme Court in Petition for Special Leave to Appeal (Crl.) No. 242 of 2022, titled as State By (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & another, wherein the legal position regarding inadmissibility of statement of a accused under Section 67 of the NDPS Act has been reiterated. As noticed earlier, it is not only the statement of co-accused, which is being used as incriminating evidence against the petitioner. Recovery of huge quantity of contraband has been made from the petitioner in pursuance to his disclosure statement. In the given circumstances of the case, the connivance of petitioner with other co-accused in the entire episode cannot be ruled out.

Learned counsel for the petitioner has also placed reliance on judgment passed by the Madhya Pradesh High Court in Mobin @ Patan vs. The State of Madhya Pradesh, dated 15.3.2018. The facts of said case were different to the facts of the present case, inasmuch as, there was no fact discovered in the said case in pursuance to the statement recorded under Section 27 of the Indian Evidence Act, whereas in the present case, the petitioner is alleged to have got recovered huge quantity of contraband by making a disclosure under Section 27 of the Indian Evidence Act.

In view of the above discussions, there is no merit in the petition and the same is accordingly dismissed.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.