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Himachal Pradesh High Court · body

2025 DAILYLAW 3878 (HP)

Ashok Kumar v. State of Himachal Pradesh

2025-10-30

Virender Singh

body2025
JUDGMENT : Virender Singh, J. Applicant-Ashok Kumar, by way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), has sought his release, on bail, during the pendency of the trial, arising out of FIR No.126 of 2023, dated 01.08.2023, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Damtal, District Kangra, H.P. 2. According to the applicant, he has falsely been arrested by the police, in this case, on 01.08.2023, for allegedly possessing contraband, weighing 261 gms of chitta/heroin, as, he is innocent and has not committed the alleged offence. 3. As per the stand of the applicant, the investigation, in the present case, is almost complete, as such, no useful purpose would be served, by keeping him in the judicial custody, any further. 4. The relief of bail has also been sought on the ground that the applicant is the sole bread winner, in his family, having his wife and two school going children and in case, bail is not granted to him, his whole family will suffer and they are at the verge of starvation. 5. The applicant has sought his release, mainly, on the ground of inordinate delay in trial, as, according to the applicant, the challan, in this case, has been presented before the Court on 25.05.2024, however, till date, no evidence has been recorded so far. 6. According to the applicant, he had earlier tried his luck by moving similar application, before the learned trial Court, by moving similar bail application, which was dismissed, vide order dated 23.12.2023. Thereafter, he had tried his luck, before this Court, by moving CrMPs(M) No. 210, 1849, 2395 of 2024, which were dismissed as withdrawn, vide orders dated 29.02.2024, 29.08.2024 and 12.11.2024, respectively. The subsequent bail application, filed by him, being CrMP (M) No. 444 of 2025, is also stated to be dismissed by this Court, vide order, dated 19.03.2025. 7. 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. 8. On the basis of the above facts, a prayer has been made to allow the bail application. 8. On the basis of the above facts, a prayer has been made to allow the bail application. 9. When, put to notice, police has filed the status report, disclosing therein, that on 01.08.2023, ASI Satinder Singh, IO, Police Station Damtal, has submitted a ruqqa to the Police Station, Damtal, through HC Vikas, for registration of FIR, mentioning therein that on 01.08.2023, IO, along with other police officials, was on patrolling duty and duty to detect crime relating to excise and narcotics. 10. It is the case of the police that at about 03 53 pm, police party had left Police Station and after visiting Thapkor-Lodwa side, at about 05 10 pm, IO was present at Excise Barrier, Chakki at Badrohea. In order to stop the illegal activity in the area, he has put the picketing at that place and started checking the vehicles coming from Pathankot, Punjab side. Then, he noticed Activa scooter, bearing registration No.HP-97-2254, colour white, being driven by its driver, coming from Pathankot side. Two persons were found on it. 11. Thereafter, IO, after stopping the driver, directed him to show the driving licence, upon which, driver Yashpal S/o Ram Chand had produced the driving licence and the person, who was the pillion rider, on enquiry, disclosed his name as Suresh Kumar S/o Jagat Ram. When, the IO was enquiring from the said persons, meanwhile, a grey coloured Maruti 800 car, being driven by its driver, was seen coming, which was signaled to stop by HC Vikas. The driver has not stopped the vehicle and taken the same away from there, upon which, Ct. Rishabh, who was present there, stopped the said car. Thereafter, IO and other police officials also reached there. The registration number of the said car was found to be PB35-E-0318. 12. It is the further case of the police that meanwhile, the persons, who came there on Activa, namely Yashpal and Suresh Kumar, also reached there. On seeing the suspicious activities of the driver of the said car, it has been apprehended by the IO that some stolen articles may be there in the car or the car driver may be involved in any other illegal activity. As such, IO has associated said Yashpal and Suresh Kumar as independent witnesses and name of the driver of the said car was enquired. On enquiry, driver disclosed his name as Ashok Kumar (applicant). 13. As such, IO has associated said Yashpal and Suresh Kumar as independent witnesses and name of the driver of the said car was enquired. On enquiry, driver disclosed his name as Ashok Kumar (applicant). 13. Thereafter, IO directed Ashok Kumar (applicant) to show the registration certificate of the vehicle, upon which, Ashok Kumar (applicant) had opened the dashboard of the vehicle and in this process, a black coloured polythene envelope had fallen down. Subsequently, applicant has shown RC to the IO and the same was found to be in the name of the applicant. On enquiry, he could not give any satisfactory answer to the IO, as to why, he had driven away the car and got perplexed. 14. Thereafter, the black coloured envelope, which had fallen down from the dashboard, was opened and on opening the same, another transparent white coloured envelope was found containing brown granule shaped and powder like substance. When, the same was checked on the drug detection kit, then, the same was found to be chitta/heroin, which, on weighment, was found to be 261 gms. The same was taken into possession. Other codal formalities were completed and accused/applicant was arrested. 15. Later on, during investigation, the involvement of co-accused Harkrishanjit Singh, s/o Balwinder Singh, r/o Amritsar, Punjab, was also found and he was also arrested. 16. As per status report, another case, bearing FIR No.21 of 2019 dated 17.04.2019, under Section 21 of the NDPS Act, has been found to have been registered against the applicant, with Police Station Damtal, District Kangra, H.P. The said case is still pending adjudication in the Court of learned Additional Sessions Judge-I, Dharamshala, District Kangra. 17. Lastly, it has been apprehended that in case, the applicant is ordered to be released on bail, he may again indulge in the same activity and also allured the younger generation to involve in the said trade. 18. On the basis of the above facts, a prayer has been made that the bail application may be dismissed. 19. 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. 18. On the basis of the above facts, a prayer has been made that the bail application may be dismissed. 19. 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. 20. Once, it has been held that the contraband allegedly recovered from the possession of the accused (applicant) falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then, the rigors of Section 37 of the NDPS Act come into play. 21. The contraband allegedly recovered from the applicant, admittedly, falls within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of NDPS Act are applicable, in this case. 22. When, rigors of Section 37 of the NDPS Act are applicable, in that eventuality, before releasing the applicant, on bail, it is incumbent upon this Court to give findings, with regard to fulfillment of twin conditions, as enumerated, under Section 37(b) of the NDPS Act. These conditions are (i) that the applicant has not committed the offence, for which he has been arrested, and (ii) that while on bail, he will not commit any offence. 23. The provisions of Section 37 of the NDPS Act, have been discussed and explained by a three-Judge Bench of the Hon’ble Supreme Court, way back in the year 2004, in cases, titled as Collector of Customs, New Delhi versus Ahmadalieva Nodira, reported in (2004) 3 Supreme Court Cases 549, and Narcotics Control Bureau versus Dilip Pralhad Namade, reported in (2004) 3 Supreme Court Cases 619. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under “9. As observed by this Court in Union of India v. Thamisharasi & Ors. The relevant paras 9 to 11 of the judgment in Dilip Pralhad Namade’s case (supra), are reproduced, as under “9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court 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. 10. 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 the present accused respondent is concerned, are (1) 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 for 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 and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. 11. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act. 11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37.” 24. The term ‘reasonable’ has elaborately been discussed by the Hon’ble Supreme Court, in case, titled as Union of India versus Shiv Shanker Kesari, reported in (2007) 7 Supreme Court Cases 798. The relevant paras 8 to 11 of the judgment are reproduced, as under “8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. “7. … In Strouds Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word ‘reasonable’. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy. (See Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497 . and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [ (1989) 1 SCC 532 ]. 9. “9. ...It is often said that "an attempt to give a specific meaning to the word “reasonable” is trying to count what is not number and measure what is not space". The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ‘the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined’. The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, ‘the expression “reasonable” is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined’. It is not meant to be expedient or convenient but certainly something more than that.” 10. The word “reasonable” signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315 ). 11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” 25. This view has again been reiterated by the Hon’ble Supreme Court in a latest decision, in case, titled as State of Kerala and others versus Rajesh and others, reported in (2020) 12 Supreme Court Cases 122. The relevant paras 18 to 21 of the judgment are reproduced, as under “18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429 , it has been elaborated as under “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429 , it has been elaborated as under “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [ (1990) 1 SCC 95 )] as under : ‘24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended.” 19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 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. 21. We may further like to observe that the learned Single Judge has failed to record a 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.” 26. 21. We may further like to observe that the learned Single Judge has failed to record a 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.” 26. 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 Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444 . 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. 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. 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. 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) 27. In view of the above, there is nothing on the record to give an occasion for this Court to hold that the twin conditions, as enumerated in Section 37 of the NDPS Act, are in favour of the applicant, in the present case. 28. So far as the delay in trial is concerned, the accused (applicant), considering the pace of the trial, this Court is satisfied that there is no undue delay in trial, warranting the release of the applicant, on bail. 29. 28. So far as the delay in trial is concerned, the accused (applicant), considering the pace of the trial, this Court is satisfied that there is no undue delay in trial, warranting the release of the applicant, on bail. 29. Considering all these facts, this Court is of the view that the applicant is not able to make out a case, on the basis of which, it can be said that the applicant is not guilty of such offence and in case, he is ordered to be released, on bail, he is not likely to commit any offence. As such, in the absence of the satisfaction of the twin conditions, the applicant is not held entitled for any relief, under Section 483 of the BNSS. Consequently, the bail application is dismissed. 30. 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 bail application.