Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(UK) 345

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAKESH THAPLIYAL, J.
Chatra Pal Singh - Applicant
Versus
State of Uttarakhand - Respondent
1st Bail Application No. 1008 of 2023
Decided On : 16-04-2024

Advocates Appeared:
For the Applicant :Mr. Arvind Vashisht, learned Senior Advocate assisted by Mr. Hemant Mehra, learned counsel.
For the State :Mr. V.K. Gemini, learned Deputy Advocate General with Mr. Saurabh Pandey, learned Brief Holder.

IMPORTANT POINT
Prolonged incarceration and lack of witness examination can justify granting bail under the NDPS Act, despite the stringent conditions imposed by Section 37.

Headnote:
Bail - Narcotic Drugs and Psychotropic Substances Act - Sections 8, 20, 60, 37 - The court interpreted the stringent provisions of Section 37 of the NDPS Act, emphasizing the need for reasonable grounds for bail, while also considering prolonged incarceration and lack of witness examination as factors for granting bail.
Fact of the Case:
The applicant sought bail after being implicated in a case involving the recovery of 69.025 kg of ganja. He argued that he had been in custody since March 2023, with no witnesses examined, and claimed false implication.
Finding of the Court:
The court acknowledged the rigorous nature of Section 37 of the NDPS Act but noted the applicant's prolonged incarceration and the absence of witness examination, which warranted consideration for bail despite the statutory restrictions.
Issues: Whether the applicant is entitled to bail under the NDPS Act given the commercial quantity of contraband and the provisions of Section 37.
Ratio Decidendi: The court held that prolonged incarceration and lack of witness examination could override the stringent conditions of Section 37 of the NDPS Act, allowing for bail under exceptional circumstances.
Result: The bail application is allowed, and the applicant is ordered to be released on bail.

JUDGMENT :

Rakesh Thapliyal, J.

1. Present applicant is seeking regular bail in relation to FIR No. 08 of 2023 wherein he has been implicated for the offences punishable under Section 8, 20, 60 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”) registered at Police Station – Salt, District – Almora.

2. As per the prosecution case, an FIR was lodged by the complainant on 03.03.2023 with allegations that when the Police team was on routine patrolling at around 14.10 p.m., they saw a vehicle pickup bearing registration no. U.P. 22 AT 8604 coming from Jhimar side and asked it to stop. On seeing the police team, the applicant and other accused halted the vehicle 10 steps back from the place where police was present. Then on enquiry, accused did not give any satisfactory reply and while on checking the vehicle, sacks and bags were recovered and when they were opened green colour flowery substance comprising seeds purported to be ganja was recovered from four sacks (from two khakee plastic bags 12.66 Kg and 14.195 Kg; from blue and white coloured bag 21.625 Kg of contraband was recovered and from black and white coloured bag 20.545 kg of contraband was recovered). A total 69.025 kgs of Ganja was recovered from the possession of the applicant.

3. Learned counsel for the applicant submits that applicant is in jail since 03.03.2023 and after investigation, charge-sheet has already been filed. He further submits that there are total 7 witnesses shown in the charge-sheet but uptil date no witness has been examined and there is no compliance of Section 50 of the NDPS Act and further more there is no public witness and present applicant has been falsely implicated in the present case. He further submits that only one criminal case for the offences punishable under Section 323, 498-A, 504 IPC is registered against the present applicant and applicant is seeking bail on the ground of incarceration, as till date, no witness has been examined.

4. Mr. V.K. Gemini, learned Deputy Advocate General has seriously opposed the bail application by saying that by virtue of Section 37 of the Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail.

5. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same reads as under:-

“37. Offences to be cognizable and non bailable—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, 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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

6. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine are that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

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