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2021 Supreme(P&H) 1252
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Suvir Sehgal, J.
Hardeep Kumar @ Babbu - Appellant
Versus
State Of Punjab - Respondent
Cr M M No. 17242 of 2020, 23667of 2020, 25031of 2020, 26360 of 2020, 723 of 2021
Decided On : 23-07-2021
Sandeep Kumar Passi, Advocate, Vikram Chaudhari, Advocate, Sartaj Singh Gill, Advocate, J.S. Sandhu, Advocate, Arihant Jain, Advocate, Rishav Jain, Advocate, Vinod Ghai, Advocate, Kanika Ahuja, Advocate, Edward Augustine George, Advocate, Gaurav Garg Dhuriwala, Advocate
The main legal point established is that the provisions of the NDPS Act, particularly Section 37, must be satisfied for the grant of bail, requiring reasonable grounds to believe the accused is not guilty.
Headnote:
NDPS Act - Bail Application - Sections 22, 25, 29 - Summary of Acts and Sections: The court discussed the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) including Sections 22, 25, and 29. The court highlighted the commercial quantity of contraband, the non obstante clause under Section 37, and the requirement for reasonable grounds to believe the accused is not guilty.
Fact of the Case:
The petitioners sought bail under Section 439 of the Code of Criminal Procedure, 1973, as they were accused in an FIR for offences under Sections 22, 25, 29 of the NDPS Act. The arrests were made based on a chain of events following the apprehension of an individual with intoxicating tablets.
Finding of the Court:
The court found that the recovered contraband fell within the ambit of commercial quantity, and the provisions of Section 37 of the NDPS Act applied. It emphasized the requirement for reasonable grounds to believe the accused is not guilty, which the petitioners failed to demonstrate.
Issues: The issues revolved around the admissibility of disclosure statements, the possession of valid licenses under the Drugs and Cosmetics Act, and the applicability of bail under Section 37 of the NDPS Act.
Ratio Decidendi: The court's decision was based on the interpretation of Section 37 of the NDPS Act, the non obstante clause, and the requirement for reasonable grounds to believe the accused is not guilty.
Final Decision: The court dismissed all the bail petitions, stating that the petitioners were not entitled to bail during the trial, without expressing any opinion on the merits of the case.
JUDGMENT
Suvir Sehgal, J. - This order shall dispose of a bunch of five petitions bearing Nos.CRM-M-17242-2020, Hardeep Kumar @ Babbu vs. State of Punjab, CRM-M-23667-2020, Rajinder Kumar @ Raju vs. State of Punjab; CRM-M-25031-2020, Rupesh Kumar vs. State of Punjab; CRM-M-26360-2020 Tayab Qureshi vs State of Punjab and CRM-M-723-2021, Krishan Kumar Arora vs. State of Punjab, as all the petitioners are accused in FIR No.95 dated 25.02.2020 registered for offences under Sections 22, 25, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short -'The NDPS Act') at Police Station City Barnala, District Barnala, Annexure P-1 and are seeking grant of regular bail under Section 439 of the Code of Criminal Procedure, 1973.
2. FIR, Annexure P-1, was registered on the basis of secret information and Mohan Lal @ Kala, was apprehended on 26.02.2020 from whom recovery of intoxicating tablets was effected. His interrogation leads to chain of arrests, including that of petitioners, and huge recoveries. The petitioners were arrested on different dates in March and September 2020.
3. Counsel representing the petitioners have contended that the petitioners have been arraigned as accused on the basis of disclosure statements, which are inadmissible in evidence. It has been submitted that most of the petitioners are chemists and possess valid licenses under the Drugs and Cosmetics Act, 1940, and they have not committed any offence under the NDPS Act. Reliance has been placed on order dated 25.11.2020 passed in CRM-M-29854-2020, whereby co-accused, Naresh Mittal @ Rinku was released on bail. Reference has been made to order dated 25.09.2020 passed in CRM-M-48634-2019, Jasbir Singh @ Sukh vs. State of Punjab.
4. Opposing the petition, State counsel has relied on the status report filed by way of affidavit of Deputy Superintendent of Police, Barnala, and has argued that drug money and huge quantity of contraband, which falls within the ambit of commercial quantity, have been recovered from the petitioners. He submits that the bar under Section 37 of the NDPS Act is attracted and the petitioners are not entitled to be released on bail. He has cited the judgment of the Hon'ble Supreme Court in State of Punjab vs. Rakesh Kumar, (2019) 1 RCR(Cri) 218 and State of Kerala vs. Rajesh and others, (2020) 1 RCR(Cri) 818. In particular, State counsel has submitted that Krishan Kumar Arora (petitioner in CRM-M-723-2021) is the kingpin and most of the drugs recovered, have been manufactured by a company, in which this accused is playing an active role.
5. I have considered the arguments addressed by the respective counsel and gone through the paper-books with their able assistance.
6. In the affidavit filed by the State, it has been deposed that Tramadol has been declared to be a narcotic/psychotropic substance vide Notification dated 26.04.2018, Annexure R-1, issued by the Government of India in exercise of power conferred by Sub section (vii)(a) and (xxiii)(a) of Section 2 of the NDPS Act and quantity in excess of 250 grams has been classified as commercial quantity. Vide memo dated 13.08.2019, Annexure R-2, Foods and Drugs Administration Department, Punjab, directed all the retailers, wholesale chemists, distributors, stockists etc. to submit their stock statements within a period of 15 days and to return the stock of tramadol and tatentadol held by them exceeding the quantity prescribed in the Memorandum and apply for special permission or licence to the Competent Authority for possessing the same in excess of the specified quantity.
7. During investigation, the accused revealed the names of the present petitioners and their interrogation led to recoveries from them. As per the affidavit filed by the State, in addition to drug money of Rs.1,72,60,000/- and five vehicles, a huge quantity of 45,39,470 prohibited tablets, capsules and injections have been recovered from the 17 accused, who have been arrested, however, none of the accused possess any s
