Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 408

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIRENDER SINGH, J.
Khem Raj @ Hem Raj - Applicant
Versus
Union of India - Respondent
Cr.MP(M) No. 2796 of 2022
Decided On : 27-01-2023

Advocates Appeared:
For the Applicant : Mr. Vikash Sharma, Mr. Ajit Sharma and Mr. Prashant Sharma.
For the Respondent:Mr. Ashwani Pathak, Senior Advocate, with Mr. Tek Chand.

The court emphasized the stringent conditions imposed by Section 37 of the NDPS Act for granting bail in cases involving commercial quantity of contraband, highlighting the need for reasonable grounds to believe that the accused is not guilty and is not likely to commit any offence while on bail.

Headnote:
NDPS Act - Bail Application - Section 20, 29 - 172(2) CrPC - 37 NDPS Act
Fact of the Case:

The applicant filed a bail application under Section 439 of CrPC, stating that he was falsely implicated in a drug-related case and that there was no evidence connecting him to the alleged crime. The NCB opposed the bail application, citing the recovery of contraband and the applicant's alleged involvement in the drug supply chain.
Finding of the Court:

The court discussed the applicability of Section 37 of the NDPS Act, which imposes additional conditions for granting bail in cases involving commercial quantity of contraband. The court cited previous judgments to emphasize that the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail is a prerequisite for granting bail under Section 37.
Issues: The main issue was whether the applicant met the conditions specified in Section 37 of the NDPS Act for granting bail in a case involving commercial quantity of contraband.
Ratio Decidendi: The court held that the applicant did not meet the conditions specified in Section 37 of the NDPS Act and therefore dismissed the bail application.
Final Decision: The bail application of the applicant was dismissed.

JUDGMENT :

Virender Singh, J.

Applicant-Khem Raj @ Hem Raj has filed the present application under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing him on bail, during the pendency of trial, in NCB Crime No. 31 of 2022, dated 22nd April, 2022, registered with Police Station NCB Mandi, District Mandi, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’), on the ground that the case of the prosecution is based upon the imaginary story, as, there is nothing on the record, to connect the applicant, with the commission of the offence, for which, he has been arrested, in this case.

2. According to the applicant, he is an innocent person and has falsely been implicated, in this case, as, no iota of evidence could be collected by the investigating agency against him, in this case.

3. The investigation, in the case, is stated to be completed. It is contended that the report under Section 172 (2) of the CrPC has already been presented in the competent Court of law and the trial against the applicant will take sufficient long time, as such, no useful purpose would be served by keeping the applicant, in judicial custody for indefinite time.

4. Alleging that keeping him in the judicial custody amounts to violation of his fundamental right, especially under Article 21 of the Constitution of India, it has been pleaded on behalf of the applicant and the rigors of Section 37 of the NDPS Act are not applicable, in this case, as the applicant is having no criminal history and there is no likelihood of the applicant committing any offence, if he is released on bail.

5. It is his further case that he has falsely been implicated, in this case, on the ground that he was in touch with the main accused and some cash was transferred by the main accused to the account of one Hira Lal, who is the brother-in-law of the applicant.

6. Bail has also been sought on the ground that the contraband allegedly recovered, in this case, does not belong to the applicant, as, he has falsely been roped in, in this case, on the allegation that he had exchanged phone calls with other accused persons.

7. It has also been pleaded in the application that the financial transactions are a matter of evidence and the same are not to be entered into, at the stage of bail. 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 nothing on the record, to connect the applicant with the commission of the alleged crime.

8. 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.

9. When put on notice, the NCB 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 22nd 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.

10. It is the further case of the NCB that accused-Sukhchain and Virender Mahendroo had disclosed the name of applicant-Khem Raj @ Hem 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