2018 Supreme(P&H) 1915

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-30643 of 2018 (O&M)
Ankush Kumar @ Sonu
v.
State of Punjab
{Decided on 09/08/2018}

Narcotics – Bail – Commercial Quantity – Conditions as mentioned in S.37(1)(b)(ii) of the NDPS Act are discriminatory, irrational, unreasonable and unjust – Such conditions cannot be insisted upon the state to defeat the right of bail to an accused.

Headnote:(A) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Bail – Commercial Quantity – Conditions as mentioned in S.37(1)(b)(ii) of the NDPS Act are discriminatory, irrational, unreasonable and unjust – Such conditions cannot be insisted upon the state to defeat the right of bail to an accused – Twin conditions firstly that he is not guilty of such offence; and secondly that he is not likely to commit any offence while on bail held to be unreasonable on following grounds:

       (i) Section 37(i)(b)(ii) of the NDPS Act requires the Court to be ‘satisfied’ that there are ‘reasonable grounds for believing’ that the person seeking bail is ‘not guilty’ of such an offence – In other words, Section 37 departs from the long established principle of presumption of innocence in favour of the accused person until proved otherwise;

       (ii) No Court can record a satisfaction and belief that a person is ‘guilty’ or ‘not guilty’ of the offence at the stage of grant of bail – What is required to be done after a full fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial;

       (iii) Section 37(1)(b)(ii) makes the application of the conditions mentioned in this provision to be applicable only if the Public Prosecutor so desires – As per the language of this Section where the Public Prosecutor does not oppose the bail application then Court is not required to apply its mind for arriving at a satisfaction and belief as prescribed in Section 37(1)(b)(ii), despite the fact that the quantity of contraband involved may be many times more than the commercial quantity;

       (iv) As per read down language also, while granting bail as per provisions of Section 37(1)(b)(ii), the Court would be required to record, at least, the prima facie, or more than prima facie, satisfaction that the accused is not guilty of the offence alleged against him – And this satisfaction has to be recorded by the Court with reference to the material on record – Whereas at the stage of framing of charge on the basis of same material and record, the Court is to arrive at a prima-facie satisfaction that such a person has committed such offence – In that situation, the accused would be entitled to get the charge quashed, moment he is granted bail by recording satisfaction of the Court as required under Section 37(1)(b)(ii);

       (v) Second part of Section 37(1)(b)(ii), which requires the Court to be satisfied that there are reasonable grounds for declaring that the accused is not likely to commit ‘any offence’ while on bail – It is the reasonable ‘satisfaction’ on the basis of the material on record which is required – By extension of any human logic, it cannot be said that the Court can record, any degree of satisfaction, based on some reasonable ground, as to whether a person would commit an offence or whether he would not commit an offence after coming out of the custody – Neither the Court would be able to record a satisfaction that the accused would, likely, commit the offence after coming out of the custody, nor would the Court be able to record a satisfaction that the accused would not commit any offence after coming out of the custody – Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible act on the part of the Court – Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement. (Para 33 to 38)

       (B) Narcotics Drugs and Psychotropic Substances Act, 1985, S.37 – Bail – Fundamental Rights – Conditions prescribed u/s 37 of NDPS Act are arbitrary, discriminatory irrational, unreasonable and unjust and this violate right under Article 21 of Constitution – Held; it is settled law that in case of conflict between a provision of law and fundamental right of citizen, it is the fundamental rights which has to be given preference – Constitution of India, 1950, Article 21.

       The 11 Judges Bench judgment of the Hon’ble Supreme Court and has categorically held that, it is not the ‘object’ of the Act or the ‘form’ and so the language or modality thereof; which is material, rather it is its ‘direct effect’ of such state instrument, on the right of an individual which is material for the jurisdiction of the Court to grant relief of protection of right of an individual, and has held the provision similar to the one as contained in Section 37(1)(b)(ii) as ultra vires, therefore, this Court being a Constitutional Court, it would not be appropriate for it to put the citizen to legal asphyxia by refusing to entertain his reliance upon the above-said judgment of the Hon’ble Supreme Court, even for the limited purpose of granting bail, which is sought by the petitioner on the ground that his bail is being opposed by the State for the reasons which has direct effect on his fundamental rights and are discriminatory, arbitrary, irrational, unreasonable and unjust and thus violate his right under Article 21 of the Constitution.

       (C) Narcotics Drugs and Psychotropic Substances Act, 1985, S.50 – Personal Search – Bail – Merely asking a person whether he wants to be searched before a Gazetted Officer or Magistrate is not the sufficient compliance of Section 50 of NDPS Act – Bail granted – Criminal Procedure Code, 1973, S.439. (Para 43)

       (D) Narcotics Drugs and Psychotropic Substances Act, 1985, S.2(1) & 37 – Bail—NDPS – Commercial Quantity – Recovery of 300 gms of intoxicant powder containing Alprazolam powder in it however, whether the entire powder is Alprazolam or not is not clear from the facts on record – Held; Court is satisfied that petitioner may not be guilty and further court does not have reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail – Petitioner was earlier involved in other case of NDPS Act but has been acquitted in that case – So his antecedents are also clear as of now – Bail granted – Criminal Procedure Code, 1973, S.439. (Para 44)