The provisions of Section 37 of the NDPS Act set limitations on granting bail for offences punishable for a term of imprisonment of five years or more under the Act, and the previous record of the accused can be considered in bail decisions.

ORDER :

Heard Mr. T. Tapak, learned counsel for the petitioner. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent.

2. This is an application under Section 439 of the Code of Criminal Procedure, 1973, praying for grant of bail to the accused, who has been languishing in jail hazot in connection with Longding P.S. Case No. 49/2022, under Section 21(c) of the NDPS Act, 1985.

3. Scanned copy of the LCR has already been received and I have perused the same.

4. It is submitted by Mr. Tapak, learned counsel for the petitioner, that the accused is innocent and no way connected with the alleged offence and she was arrested merely on suspicion. More so, the investigating authority has already filed the Charge-Sheet and the FSL report is also filed along with additional Charge-Sheet. Further, as the case has already been Charge-Sheeted, there is no probability of influencing the witnesses or hampering or tampering the evidences. However, the learned Special Judge, Khonsa, rejected the earlier bail petition on the ground of non-receipt of FSL report and subsequently rejected the prayer for bail stating that as FSL report has been received, the accused cannot be granted bail. The accused is in custody since last 237 days from the date of his arrest, i.e. 15.11.2022, and considering her length of detention, she may be released on bail. Further it is submitted that the accused is a widow having minor children and in her absence, there is none to look after her family and hence, her bail petition may be granted on humanitarian ground also.

5. In this context, the learned Additional Public Prosecutor, Mr. Ete, has submitted that the case is registered under Section 21(c) of the NDPS Act, which is of commercial quantity and hence rigor of Section 37 of NDPS Act will be applicable here in this case and only considering the Charge-Sheet, the present accused cannot be granted with bail without any satisfaction of this Court that the accused is not guilty or not likely to commit any such offence while on bail. But, here in the instant case, it is seen that the accused is arrested under Section 21(c) of the NDPS Act and Charge-Sheet has already been filed finding a prima facie case against the accused under Section 21(c) of the NDPS Act. More so, the accused was also earlier arrested in connection with other NDPS matters, which is reflected from the order passed by the learned Special Judge. Thus, the accused also has the previous record of committing similar kind of offence and hence, it cannot be held that there no likelihood of committing such kind of offence if the accused is remain on bail.

6. The learned Additional Public Prosecutor further relied on a decision of Hon’ble Apex Court reported in (2007) 7 SCC 798 (Union of India Vs. Shiv Shanker Kesari), wherein, in paragraph 6 thereof, it has been held as under:

“6. As the provision itself provides no person shall be granted bail unless the two conditions are satisfied. They are; the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Both the conditions have to be satisfied. If either of these two conditions is not satisfied, the bar operates and the accused cannot be released on bail.”

7. After hearing the submissions made by the learned counsels of both sides, I have perused the case record and the order passed by the learned Special Judge, NDPS, Khonsa.

8. It is seen that the earlier bail applications of the present accused were rejected prior to the receipt of the FSL and even after receipt of the FSL report.

It is also observed by the learned Special Judge that the accused was also earlier arrested in connection with 2 (two) other NDPS matters and accordingly, his bail prayer was rejected by the learned Special Judge.

9. As it is a case under the commercial quantity, the rigor of Section 37 of the NDPS Act will be applicable in the present case, whic