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2025 DAILYLAW 3509 (HP)

Bittu Ram v. State of Himachal Pradesh

2025-09-26

Virender Singh

body2025
JUDGMENT : Virender Singh, Judge Applicant–Bittu Ram, has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the 'BNSS'), seeking the relief of bail, during the pendency of the trial, arising out of FIR No.28/2025, dated 30th January, 2025, registered with Police Station, Nurpur, District Kangra, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’). 2. According to the applicant, the case of the police is highly improbable and is highly suspicious, having no truth in it. According to the applicant, the grounds of detention were not communicated to him. 3. It is the further case of the applicant that he has no role in the commission of the alleged crime, as, he neither was instrumental behind the arrangement and transportation of contraband, nor had ever any communication pertaining to sale and purchase. 4. According to the applicant, the case is now listed for consideration on charge and there is no possibility of conclusion of trial in near future. 5. All these facts have been highlighted to show that the custodial interrogation of the applicant is no longer required by the Police, in this case. 6. It is the further case of the applicant that he is a poor person and sole bread earner for his family. 7. The applicant has also tried his luck by moving similar application before the Court of learned Special Judge-III, Kangra at Dharamshala, District Kangra, which was dismissed on 28.03.2025. 8. Apart from this, the learned counsel appearing on behalf of the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial. 9. On the basis of the above facts, a prayer has been made to allow the application. 10. When put to notice, police has filed the status report, disclosing therein, that on 30.01.2025, ASI Satender Singh, CIA, Police District Nurpur, along with other police officials, was on patrolling duty and duty to detect the crime relating to excise and narcotics, towards Rehan, Raja-ka-Talab, Ganoh, etc.. 10.1. 10. When put to notice, police has filed the status report, disclosing therein, that on 30.01.2025, ASI Satender Singh, CIA, Police District Nurpur, along with other police officials, was on patrolling duty and duty to detect the crime relating to excise and narcotics, towards Rehan, Raja-ka-Talab, Ganoh, etc.. 10.1. At about 04.10 p.m., when, the police party was present in front of Himachal Bakery near Matholi Police Line, and was talking with two local persons, namely Gopal Singh and Deep Singh, at that time, he noticed two persons coming from Jasoor side and were moving towards Talwara side on foot. One was having blue coloured plastic sack. He was moving in fast speed and other person, who had worn black neck was also having a plastic sack. One person had covered his mouth with red colour scarf. 10.2. The I.O. inquired from Gopal Singh and Deep Singh, about those persons, upon which, both of them said that they do not know them. Both persons were found to be outsiders. The I.O., called the person, who was having the blue coloured sack, in his hand, however, he has not given any heed to the command of the I.O. As such, both the said persons were nabbed and I.O. apprised them about the identification. 10.3. On seeing the identity card, both of them became perplexed, as such, the I.O. developed a suspicion in his mind that both the said persons were having stolen or suspicious articles. As such, their antecedents were ascertained. They disclosed their names as Jagdish and Tega, residents of Chamba. 10.4. Thereafter, the sack, which they were carrying were  checked. On  checking,  the  same  were  found containing charas, which was kept in a plastic and was concealed in maize flour. On weighment, the said contraband was found to be 2 kilograms 220 grams. 10.5. After completing other codal formalities, the FIR was registered and the contraband, so recovered, was taken into possession. The accused persons were arrested. 11. Thereafter, both the accused persons were produced before the Court of learned Additional Chief Judicial Magistrate, Nurpur, from where, they were remanded to the police custody. 12. 10.5. After completing other codal formalities, the FIR was registered and the contraband, so recovered, was taken into possession. The accused persons were arrested. 11. Thereafter, both the accused persons were produced before the Court of learned Additional Chief Judicial Magistrate, Nurpur, from where, they were remanded to the police custody. 12. During investigation, accused Jagdish has disclosed that accused Lekh Raj has kept the charas so recovered in National Bus at Chamba Bus Stand and photographs of the same were sent by Bittu Ram (applicant), who has also apprised him about this fact by making video call. Since, the transactions were found from the account of Jagdish with Lekh Raj, as such, bank account of Jagdish was freezed. 13. On 01.02.2025, applicant Bittu Ram was detained and from his mobile phone, photo of charas was found and it has also been found that he has deleted the  whatsapp chat. Mobile phone of Jagdish and Bittu Ram (applicant) were sent to RFSL Dharamshala. Applicant Bittu Ram was arrested and was produced before the Court on 1.2.2025, from where, he was remanded to police custody for four days. 14. During investigation, accused Jagdish has disclosed that he has requested his co-accused to supply the Bhang. Consequently, said Lekh Raj kept the charas in National Bus at Bus Stand Chamba. 15. During investigation, it was found that accused Jagdish and Teja had not boarded the bus at Chamba Bus Stand and Lekh Raj has supplied the contraband in the area of Jhajhakothi, as Jagdish Lekh Raj and Bittu Ram (applicant) were in the area of Jhajhakothi, from 25.01.2025 to 29.01.2025. 16. As per the status report, a specific role attributed to the applicant is that he has forwarded the photo of the charas through whatsapp and also made a video call, upon which, the police has also checked the phone of Jagdish. Photo of charas and video call was found to be made when the google history in the mobile phone of Jagdish was perused and it has been found that accused Lekh Raj, had transaction with accused Jagdish. Thereafter, in order to retrieve the data, the mobile phones of accused Jagdish and applicant Bittu Ram, were sent to RFSL Dharamshala. 17. Except the present case, no other case is found to have been registered against him. 18. Thereafter, in order to retrieve the data, the mobile phones of accused Jagdish and applicant Bittu Ram, were sent to RFSL Dharamshala. 17. Except the present case, no other case is found to have been registered against him. 18. Investigation, in the present case, is complete and after completion of investigation, the police filed the final report in the competent Court of law and the case has been listed on 14.10.2025. 19. On the basis of the above facts, a prayer has been made to dismiss the application. 20. The applicant, in the present case, has been arrested, under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there, in the NDPS Act, in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 483 of the BNSS. Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested for the offence, involving commercial quantity of contraband. 21. The contraband allegedly recovered, in the present case, admittedly, falls within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of NDPS Act are applicable, in this case. 22. Once, it has been held that the contraband, involved, in the present case, falls in the category of ‘commercial quantity’, then, the rigors of Section 37 of the NDPS Act come into play. 23. Before releasing a person, involved in the crime, it is obligatory upon the Court to record the findings, which should be more than prima-facie findings, regarding existence of the twin conditions, as enumerated under Section 37(b)(ii) of the NDPS Act. In other words, it can be said that before releasing the person, involved in the crime in issue, findings have to be recorded by the Court, about the fact that accused is not guilty of such offence, and while on bail, he will not commit any offence. 24. In a recent decision, in case, titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444 , the Hon’ble Supreme Court has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. 24. In a recent decision, in case, titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444 , the Hon’ble Supreme Court has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under: “10. The provisions of Section 37 of the NDPS Act read as follows: “[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. 11. It is evident from a plain reading of the non- obstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In “Collector of Customs, New Delhi v. Ahmadalieva Nodira”, (2004) 3 SCC 549 , a decision rendered by a Three Judges Bench of this Court, it has been held thus: “7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” [emphasis added] 13. The expression “reasonable ground” came up for discussion in “State of Kerala and others Vs. Rajesh and others” (2020) 12 SCC 122 and this Court has observed as below: “20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis added] 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 25. The Hon’ble Supreme Court in a case, Criminal Appeal No. 5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Neutral Citation No. 2024 INSC 1045 , has again reiterated the law, as enumerated by it, in Mohit Aggarwal’s case (supra). The Hon’ble Supreme Court, in this case, has held that the provisions of Section 37 of NDPS Act are mandatory in  nature. Relevant paragraphs 8 and 39 of the said judgment are reproduced, as under: “8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions. xxx xxx xxx 39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” (self-emphasis supplied) 26. Being guided by the above decisions of the Hon’ble Supreme Court, this Court will proceed further, whether twin conditions, as enumerated, under Section 37(1)(b)(ii) of the NDPS Act, exist in favour of the applicant or not. 27. Admittedly, the involvement of applicant Bittu Ram was found by the Police, on the basis of the alleged disclosure made by accused Jagdish, who along with Tega, was nabbed by the police with contraband weighing 2.220 kilograms of Charas. Jagdish has disclosed, during the investigation, that the consignment of Charas was allegedly kept by Lekh Raj in National Bus at Bus Stand Chamba and photographs were sent by Bittu Ram applicant. No financial transaction was found to be made between the accused, who were nabbed with applicant. 28. In such situation, it can easily be said, at this stage, that the involvement of the applicant was found merely, on the basis of the alleged revelation made by co- accused Jagdish, when, he was in police custody. 29. In view of the law laid down by the Hon’ble Supreme Court in ‘Tofan Singh versus State of Tamil Nadu’, (2021) 4 Supreme Court Cases 1, the said statement cannot be taken into account, in order to convict the accused, under the provisions of NDPS Act. 29. In view of the law laid down by the Hon’ble Supreme Court in ‘Tofan Singh versus State of Tamil Nadu’, (2021) 4 Supreme Court Cases 1, the said statement cannot be taken into account, in order to convict the accused, under the provisions of NDPS Act. Relevant paragraph 158.1 of the judgment is reproduced as under: “158.1 That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers’ within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.” 30. In view of the above, at this stage, this Court has no legal hesitation to hold that the applicant is not guilty of such offence and in case, he is ordered to be released on bail, he will not commit any offence. 31. Even otherwise, for the second condition, as enumerated under the provisions of Section 37(b)(ii) of the NDPS Act that the applicant will not commit any offence, while on bail, reasonable conditions, can be imposed upon him. Consequently, the twin conditions, are found to be existing in favour of the applicant. 32. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 33. Consequently, the applicant is ordered to be released on bail in case FIR No.28 of 2025 dated 30.01.2025, registered with Police Station, Nurpur, District Kangra, H.P., under Sections 20 and 29 of the NDPS Act, on his furnishing personal bond in the sum of Rs.1,00,000/-, with two sureties, in the like amount, to the satisfaction of learned trial Court. 34. Consequently, the applicant is ordered to be released on bail in case FIR No.28 of 2025 dated 30.01.2025, registered with Police Station, Nurpur, District Kangra, H.P., under Sections 20 and 29 of the NDPS Act, on his furnishing personal bond in the sum of Rs.1,00,000/-, with two sureties, in the like amount, to the satisfaction of learned trial Court. 34. This order, however, shall be subject to the following conditions:- a) Applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b) Applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) Applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) Applicant shall not leave the territory of India without the prior permission of the Court. f) The applicant shall furnish affidavit, in the first week of every month, before the learned trial Court, disclosing therein that he has not been named, as accused, in any crime, during that period. 35. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present application. 36. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant. 37. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, District Kangra, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 38. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, is directed to inform this fact to the Secretary, DLSA, Kangra at Dharamshala. 38. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, is directed to inform this fact to the Secretary, DLSA, Kangra at Dharamshala. The Superintendent of Jail, Lala Lajpat Rai District & Open Air Correctional Home, Dharamshala, is further directed that if the applicants fail to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court. 39. Record be returned to the quarter concerned.