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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAKESH THAPLIYAL, J.
Sunder Singh - Applicant
Versus
State of Uttarakhand - Opposite Party
Second Bail Application No. 109 of 2023
Decided On : 11-10-2023
NDPS Act - Bail Application - Sections 8/20/60 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 37 of the NDPS Act, which states that no person accused of an offence involving commercial quantity shall be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The court also considered precedents where prolonged incarceration was weighed against the statutory embargo created under Section 37, leading to the grant of bail in certain cases.
Fact of the Case:
The applicant sought bail in relation to an offence under the NDPS Act for possession of illicit contraband material. The prosecution alleged that the applicant and three others were apprehended with contraband material and confessed to supplying it from the hills to Delhi.
Finding of the Court:
The court found that the applicant, who had been in custody for over three years and had no criminal history, deserved bail. It considered the limited progress in the trial and the precedents where prolonged incarceration was weighed against the statutory embargo created under Section 37 of the NDPS Act.
Issues: The key issue was whether the applicant, accused of an offence involving commercial quantity under the NDPS Act, should be granted bail considering the provisions of Section 37 and the length of his incarceration.
Ratio Decidendi: The court held that the prolonged incarceration generally militates against the fundamental right guaranteed under Article 21 of the Constitution, and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.
Final Decision: The Second Bail Application was allowed, and the applicant was ordered to be released on bail with specific conditions.
JUDGMENT :
This is the second Bail Application of the present applicant for seeking bail in relation to FIR No. 0071 of 2020 for the offences cognizable under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), P.S. Pantnagar, District Udham Singh Nagar.
2. The first Bail Application bearing Bail Application No. 1808 of 2020 was dismissed as withdrawn on 29.03.2022.
3. As per the prosecution, on 21.03.2020, the complainant along with the team of other police personnel, received an information from a secret police informer that three or four persons were carrying illicit contraband material (Charas) in a red-golden Eicher Canter (truck) bearing Registration No. U.K.-04CB-5197. On this information, the police officials along with the informer, proceeded to the spot, and while reaching, informer identified the vehicle, and the police personnel apprehended the vehicle on the spot by using force. The police personnel, thereafter, found that there were four persons inside the vehicle, namely Sangram Singh @ Santosh, Sunder Singh (the present applicant), Vishal Kakkar and Nandan Singh Bisht, who confessed that they are possessing of the illicit contraband material (Charas) of about 31 Kgs, which they have brought from Bageshwar. It is the case of the prosecution that 5 kgs contraband (Charas) was recovered from the possession of the present applicant-Sunder Singh in a bag and the rest 25-26 Kgs contraband material was hidden in a cabin beside the diesel tank. Thereafter, the Circle Officer, Rudrapur reached the spot. The person sitting at the driver’s seat was identified as Sangram Singh @ Santosh and the person sitting beside him was identified as Sunder Singh (present applicant). The third person was identified as Vishal Kakkar and the fourth person was identified as Nandan Singh Bisht. When Sunder Singh was asked to open his bag, 5.29 kgs (by electronic weight) of Charas was recovered therefrom. The rest 31 wrappers containing 25.71 Kgs of contraband material (Charas) was recovered by the police party, which was hidden in a cabin.
4. It is the case of the prosecution that all the four persons confessed that they used to supply Charas from the hills to Delhi and used to share its profit. They also confessed that they had brought this illicit contraband material (Charas) from a person named Narendra Singh-a resident of Bageshwar. It is also the case of the prosecution that videography was also done and the recovery was sealed, stamped and sent for analysis. It is further case of the prosecution that on searching, no independent witness was available. Thereafter, a Recovery Memo was written at the spot, and on the basis of the Recovery Memo, an FIR was registered at Police Station Pantnagar. All the aforesaid four persons, namely Sangram Singh @ Santosh, Sunder Singh (present applicant), Vishal Kakkar and Nandan Singh Bisht were arrested at the spot on 21.03.2020.
5. After lodging the FIR, Charge-sheet No. 94 of 2020 was filed on 30.06.2020. After more than two years, the charges were framed against the accused persons, including the present applicant on 02.07.2022.
6. Co-accused Vishal Kakkar was enlarged on bail by this Court by order dated 09.11.2022. This co-accused Vishal Kakkar was granted bail on the ground of parity, since one other co-accused Nandan Singh Bisht was already enlarged on bail. Nandan Singh Bisht was enlarged on bail on the ground that no contraband article was recovered from him, and similarly, no contraband article was recovered from the possession of Vishal Kakkar, and both of them were just sitting with Sunder Singh, who was the owner of the canter.
7. After framing of charges, a date was fixed before the trial Court on 03.08.2022, however, on that day, no witness was examined and, thereafter, the next dates were 03.09.2022, 24.09.2022, 29.10.2022, 01.11.2022, 18.11.2022, 02.12.2022, 08.12.2022, but on these dates, no witness was examined. Again
Prolonged incarceration may override the statutory embargo created under Section 37 of the NDPS Act, leading to the grant of bail in certain cases.
The judgment established that the prolonged incarceration and the absence of criminal antecedents can be considered in granting bail under Section 37 of the NDPS Act, even in cases involving commerci....
The court emphasized strict compliance with procedural safeguards under the NDPS Act, highlighting that significant lapses can undermine the prosecution's case, especially in light of prolonged incar....
Mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.
The court underscored the stringent bail conditions under the NDPS Act, demanding substantial evidence to justify release for defendants in drug-related cases.
The court ruled that bail under the NDPS Act requires clear evidence of innocence and no likelihood of reoffending, emphasizing the serious nature of drug trafficking.
Bail under NDPS Act requires dual satisfaction of not guilty and no risk of re-offending, which the applicant failed to prove.
The court reaffirmed that minor weight discrepancies in evidence do not undermine credibility and that substantial evidence of guilt warrants denial of bail under the NDPS Act.
The central legal point established in the judgment is the application of Section 37 of the NDPS Act, which applies when a commercial quantity of contraband is to be delivered to the accused, and the....
The court emphasized that under Section 37 of the NDPS Act, bail can only be granted if there are reasonable grounds to believe the accused is not guilty and unlikely to commit further offences.
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