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2020 Supreme(P&H) 1535
IN THE HIGH COURT OF PUNJAB AND HARYANA
Harnaresh Singh Gill, J.
Shiv Kumar - Appellant
Versus
Narcotic Control Bureau, Chandigarh - Respondent
Criminal Miscellaneous (M) No. 1743 of 2020
Decided On : 29-10-2020
K.S. Sidhu, Advocate, G.S. Benipal, Advocate, Rajiv Sharma, Advocate
The absence of recovery of contraband from the accused, combined with their status as a first offender, can be considered in granting bail under the NDPS Act.
Headnote:
NDPS Act - Bail - Summary: The court granted regular bail to the petitioner under the NDPS Act, considering the absence of recovery of contraband from the petitioner, his status as a first offender, and the prolonged period of custody without framing of charges.
Fact of the Case:
The petitioner sought regular bail in a case registered under Sections 8/18/29 of NDPS Act, based on the alleged recovery of empty plastic pouches and zippers from him, while the co-accused was found with a significant quantity of Opium.
Finding of the Court:
The court found that the petitioner, being a first offender with no recovery of contraband from him, was not likely to commit any offence while on bail. It also noted the delay in framing charges and the prolonged custody without a useful purpose.
Issues: The issues revolved around the petitioner's alleged involvement in the offence, the absence of recovery of contraband from him, and the applicability of bail provisions under the NDPS Act.
Ratio Decidendi: The court relied on the absence of recovery of commercial quantity of contraband from the petitioner, his status as a first offender, and the limitations placed by Section 37 of the NDPS Act in granting bail.
Final Decision: The court allowed the petition and ordered the release of the petitioner on regular bail.
JUDGMENT
1. Case is taken up for hearing through video conferencing.
2. The petitioner has filed this petition for grant of regular bail in Crime No. 36 dated 02.08.2019, registered under Sections 8/18/29 of NDPS Act, at Police Station Narcotic Control Bureau, Chandigarh.
3. Learned Senior counsel for the petitioner has submitted that the present case has been registered on the basis of Panchnama and that the petitioner has no role in the alleged crime and has only been indicted on the information provided by co-accused Rajesh Paswan, while in custody and such statement in custody is hit by the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872, having no evidentiary value. It is also submitted that the petitioner was not arrested on the spot, nor any contraband was recovered from him, nor was he named in the secret information provided to the Narcotic Control Bureau, Chandigarh. It is further submitted that alleged recovery effected from the petitioner is of some empty plastic pouches and zippers. Charges are yet to be framed.
4. On the other hand, learned counsel for the respondent has submitted that 2.7 kg of Opium has been recovered from co-accused Rajesh Paswan, who is a carrier and the same was to be supplied to the petitioner and co-accused Moorti, who is still absconding, is a supplier from Bihar. It is further submitted that all the accused persons were in regular touch with each other, as per the call records and the co-accused Rajesh Pawan was arrested on a specific information.
5. It is still further argued that as per Section 37 (i)(b)(ii) of the NDPS Act, in order to grant the concession of bail to the petitioner, there should be reasonable grounds to believe that the petitioner is not guilty of the offence or he is not likely to commit any offence while on bail.
6. Learned counsel for the respondent has relied upon the judgment of Hon'ble Supreme Court of India in Criminal Appeal Nos. 154-157 of 2020 [arising out of SLP(Crl.) Nos. 7309-7312 of 2019] titled as 'State of Kerala Etc. Vs. Rajesh Etc.' passed on 24.01.2020 and the order dated 03.03.2020 passed by a Coordinate Bench of this Court in CRM-M-33067- 2019 titled as 'Suresh Kumar Vs. Narcotic Control Bureau, Chandigarh'.
7. I have heard the learned counsel for the parties and have also gone through the record.
8. This Court is conscious of the scheme of Section 37 of the NDPS Act, which stipulates that exercise of power to grant bail is not only subject to the limitations contained under Section 439 of Cr.P.C. but is also subject to the limitations placed by Section 37 of the NDPS Act, which commences with a non-obstante Clause.
9. In the case in hand, the petitioner has been indicted on the basis of the statement of co-accused, who had been in custody when his statement was recorded. The petitioner was not arrested on the spot either. It is a case where no recovery has been effected from the petitioner, except that of empty plastic pouches and zippers. The petitioner, who is an aged person, has been in custody for more than 1 year and 2 months and is the first offender.
10. The petitioner being the first offender, aged person and no recovery of the contraband having been effected from him, an inference can be drawn that he is not likely to commit any offence while on bail.
11. Moreover, the present case has been registered under Sections 8/18/29 of NDPS Act, whereas Section 37 of the NDPS Act bars grant of bail to an accused, who has committed the offence under Sections 19, 24 and Section 27-A of the NDPS Act. Indisputably, Section 37 of the Act also bars grant of bail to the accused from whom recovery of commercial quantity of the contraband is effected. However, in the present case, the fact remains that no recovery of contraband had been effected from the petitioner and as per the reply filed by the respondent itself, only recovery of zipper polythene packets was effected from the petitioner and allegedly the left over substance in the sai
