Point of Law:
Finding mandated under Section 37 of the NDPS Act which is a sine qua non for granting bail to the accused under the NDPS Act.

JUDGMENT :

1. This application has been filed to release the applicant on bail in case crime no. 574 of 2019, under Section 8/21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act), P.S. Shahpur, District Gorakhpur. An amount of 1 Kg 17 gm of charas is alleged to have been recovered from the possession of the applicant which is above the commercial quantity.

2. Notice of the present bail application was served on the Government Advocate on 8.1.2020. However, no counter affidavit has been filed.

3. When the matter was being heard on 4.2.2020, learned Additional Government Advocate (AGA) placed before the court a recent judgment of the Supreme Court dated 24.01.2020 passed in Criminal Appeal No. 154-157 of 2020 (State of Kerala Vs. Rajesh) (State of Kerala) to contend that in view of the provisions of Section 37(1)(b)(ii) of the NDPS Act, since the offence involves recovery of the narcotic drug in excess of the commercial quantity, the Court is required to record its satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence and that the applicant is not likely to commit any offence while on bail.

4. Apart from the learned counsel for the parties, the Court also requested Shri Imran Ullah and Dr. Arun Srivastava, learned counsel to assist the Court as amicus curie on the legal issues involved in the matter. On the date fixed, the case was heard at length.

5. Learned counsel for the applicant, Shri Rajeev Lochan Shukla, has relied upon a judgment of the Supreme Court in the case of Sujit Tiwari Vs. State of Gujarat and Another in Criminal Appeal No. 1897 of 2019, whereby the bail application filed by one of the accused who was charged under the NDPS Act in respect of the recovery of 1445 Kg of heroin was allowed after imposing stringent conditions. It is contended that by the learned counsel that the Apex Court took note of the prosecution case at the highest and observed that the appellant was aware that his brother was indulging in some illegal activity because obviously such huge amount of money of Rs. 50 crores cannot be made otherwise. It is stated by Shri Shukla that in that case before the Supreme Court the provisions of Section 37 of the N.D.P.S. Act were specifically considered. While referring the judgment of the Supreme Court in State of Kerala, Shri Shukla has contended that the Apex Court has dealt with the expression "reasonable grounds" appearing in Section 37 of the Act as meaning something more than prima facie grounds. He contends that the expression “reasonable grounds” contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. It is contended that “reasonable grounds” appearing in Section 37 of the Act would not entail a finding to be recorded by the Court regarding its satisfaction beyond reasonable doubt but to an extent more than prima facie. It is contended that the Court while exercising its jurisdiction for grant of bail or otherwise has to take into account the overall facts of the case and the compliance of the mandatory provisions of the N.D.P.S. Act before coming to a finding. The contention is that this Court may, accordingly, grant bail in view of the facts of the present case.

6. Shri Imran Ullah, learned counsel (amicus curie) while referring to paragraph nos. 7 and 22 of the judgment of the Apex Court in the case of State of Kerala has contended that the Court is required to record a finding mandated under Section 37 of the N.D.P.S. Act which is a sine qua non for grant of bail to the accused under the N.D.P.S. Act. With regard to bail, learned counsel has referred to the judgments of the Apex Court in the matters of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40, Union of India Vs. Shiv Shanker Kesari, (2007) 7 SCC 798, State of M.P. Vs. Kajad, (2001) 7 SCC 673 Union of India Vs. Ram Samujh and another, (1999) 9 SCC 429 Union of India Vs. Thamisharasi (1995) 4 S