Point of Law: Search and seizure - Grant of Bail - Section 43D (5) of UAPA merely provides possible ground for competent Court to refuse bail, in addition to the well settled considerations like gravity of offence, possibility of tampering with evidence, influencing witnesses or chance of accused evading the trial by absconsion etc.

ORDER :

1. Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in case FIR No. 113 of 2020 dated 13.8.2020 under Sections 21, 22 and 29 of the Narcotics and Psychotropic Substances Act, 1985, (for short the Act), registered at Police Station, Damtal, District Kangra, H.P. Petition is in custody since 13.8.2020.

2. The trial against petitioner is pending before learned Special Judge, Kangra at Dharmshala. The case against petitioner is that on 12.8.2020 at about 7.15 p.m. he was spotted by a police party near Ram Gopal Temple on road leading to “Fauji Pahari” Damtal, District Kangra, H.P. He was identified to be the same person, who was involved in FIR No. 105 of 2020 under Section 21 of NDPS Act, registered at the same police station i.e. Police Station, Damtal, District Kanga, H.P.

3. On noticing police officials, petitioner took out a packet from underneath his T-shirt and after throwing it towards the bushes, started walking briskly. Petitioner was apprehended by the police officials. On inquiry about the thrown packet, petitioner got perplexed. The packet thrown by the petitioner was got picked from him and on its search, 600 capsules were recovered. Further personal search of petitioner was conducted in presence of a gazetted officer and heroin weighing 6.96 grams was recovered. After recovery and seizure proceedings “Ruka” was sent to police station and FIR No. 113 of 2020 was registered.

4. After chemical analysis, the capsules were found to contain “Tramadol Hydrochloride.” Total weight of the capsules was 387.600 grams and the net weight of powder contained therein was found 382.200 grams. The substance found from the person of petitioner was analyzed as heroin. Petitioner was formally arrested.

5. I have heard Mr. Vijender Katoch, learned counsel for the bail petitioner and Mr. Kunal Thakur, learned counsel for the respondent-State and have also gone through the record carefully.

6. The contraband “Tramadol Hydrochloride” recovered in the case is commercial quantity and heroin recovered is intermediate quantify. The rigors of Section 37 of the NDPS Act are applicable in the facts of the case.

7. In State of Kerala and Another vs. Rajesh and Others, 2020 (12) SCC 122 Hon’ble Supreme Court has held as under:

“19. 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 Cr.P.C. 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 Cr.P.C. 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.”

8. Similarly, in Satpal Singh vs. State of Punjab, 2018 (13) SCC 813, the three Judges of Hon’ble Supreme Court has held as under:

“4. Under Section 37 of the NDPS Act, when a person is a