Point of Law: Recovery and seizure - Scheme of Section 37reveals that exercise of power to grant bail is not only subject to limitations contained under Section 439 of Cr.PC, but is also subject to limitation placed by Section 37 which commences with non-obstante clause.

ORDER :

Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in case FIR No.267/2021, dated 26.11.2021, under Section 21 of Narcotic Drugs & Psychotropic Substances, Act (for short ‘ND&PS Act’), registered at Police Station Baddi, District Solan, H.P.

2. Petitioner is in custody since 29.04.2022.

3. On the intervening night of 25/26-11-2021, police officials of Police Station Baddi, District Solan, H.P., while on routine patrol duty, intercepted a Tempo bearing registration No. HP-93-3189 near Amit Engineering Company. Petitioner was driving the Tempo. On search of the Tempo 15 bottles filled with syrup and without any label were recovered. The case was registered and bottles were sent for chemical analysis. As per report of laboratory, the contents found in the bottles included Codine Phosphate. The total weight of syrup was found to be 1.837 Kgs., which as per ND&PS Act is commercial quantity.

4. On receipt of the report from the laboratory, petitioner was arrested on 28.04.2022 and remained in police custody till 02.05.2022, whereafter, he was remanded to judicial custody. Petitioner is in judicial custody till date.

5. Challan has been filed after completion of investigation and is pending before learned Special Judge, Nalagarh, District Solan, H.P.

6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report as well as record of the case.

7. The quantity of contraband recovered in the case is commercial quantity, hence, rigors of Section 37 of ND&PS Act, are applicable.

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

"19. The scheme of Section 37reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, 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.

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."

9. 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 37of the NDPS Act, when a person is accused of an offence punishable under Section 19or 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