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Himachal Pradesh High Court · body

2025 DAILYLAW 3879 (HP)

Sujeet v. State of Himachal Pradesh

2025-10-30

Virender Singh

body2025
JUDGMENT : Virender Singh, J. Applicant Sujeet has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS’) for releasing him, on bail, during the pendency of the trial, arising out of FIR No. 2 of 2025, dated 03.01.2025, registered under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS’ Act), with Police Station, Majra, District Sirmaur, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in the present case, by the police, for allegedly possession 1.254 kilograms of Charas. 3. As per the applicant, the story of the prosecution is absurd, baseless and imaginary and no evidence could be collected to demonstrate the connection of the applicant with the crime, in question. He has termed the entire prosecution case as false and frivolous. 4. The applicant is stated to be in judicial custody since 03.01.2025. Investigation, in the present case, is complete and the charge-sheet has been filed in the competent Court of law. 5. It is the further case of the applicant that conclusion of the trial will take sufficient long time, as such, no useful purpose would be served by keeping the applicant in judicial custody, that too, for indefinite period. 6. According to the applicant, he is young man of 19 years and sole bread earner of his family. 7. The applicant has tried his luck by moving similar application, before the Court of learned Special Judge-I, Sirmaur District at Nahan, H.P., however, the same was dismissed on 25.03.2025. Thereafter, the applicant has moved Cr.MP(M) No.1351 of 2025, before this Court, which was dismissed as withdrawn on 26.06.2025. 8. The applicant, through his counsel, has given certain undertakings, for which, he is ready to abide, in case, he is ordered to be released on bail, during the pendency of the trial. 9. On all these submissions, a prayer has been made to allow the bail application. 10. When put to notice, the police has filed the status report, disclosing therein, that on 02.01.2025, Constable Vishal No.283 SIU Nahan, produced a rukka, which was submitted by HC Rakesh Kumar I.O., SIU Nahan, mentioning therein, that on 02.01.2025, the I.O., along with other police officials, was on patrolling duty and duty to detect the crime, relating to excise and narcotic. 10.1. 10.1. At about 8.15 p.m., when, the police party reached at Majra Chowk on National Highway, then, the I.O. received a secret information, about the fact that two young men Ankit and Sujeet are indulged in the sale of Charas and are residing in a rented accommodation at Neharwale road Surajpur (Paonta Sahib). 10.2. As per the information, both the said brothers are coming towards Majra, on their black coloured motorcycle, make Splender, bearing registration No.UP11CD-4775, and in case, the said motorcycle is intercepted and searched, a large quantity of contraband could be recovered. 10.3. The said information was found to be authentic and reliable. As per the I.O., in case, search warrants are obtained, in that eventuality, delay could be caused and there is every possibility that the contraband could be removed from there. As such, the I.O. has complied with the provisions of Section 42 (2) of the NDPS Act and submitted the information to the SDPO, Paonta Sahib. 10.4. Thereafter, the I.O., along with other police officials, proceeded towards Neharwale road. When, they reached near Johadon, then, on the left side of the road, the I.O., noticed one person, who was called by the I.O. and inquired about his name and address. He disclosed his name as Sanjeev Kumar son of late Shri Prakash Chand. He was apprised about the secret information and was requested to be the independent witness, to which, he agreed. Out of the Police team, HC Babu Ram No. 644 and Constable Manoj No.659, were also associated as witnesses. 10.5. Thereafter, picketing was done, in order to wait for the said bike. At about 09:10 p.m., from Surajpur side, as per the secret information, motorcycle, bearing registration No.UP11CD-4775, make Splender, black coloured, being driven by its driver, reached at the spot. Two persons were there on the motorcycle. Both of them were nabbed, along with the bike, by the I.O. 10.6. Thereafter, in order to comply with Section 105 of the BNSS, Constable Vishal No.283, was deputed to click the photographs and videography of that process. The I.O., has given his identification to the bike rider, upon which, he has disclosed his name, as Ankit and the pillion rider disclosed his name, as, Sujeet (applicant). Both of them have been apprised about the secret information. 10.7. Thereafter, the ruck sack, which the bike rider was having, was checked. The I.O., has given his identification to the bike rider, upon which, he has disclosed his name, as Ankit and the pillion rider disclosed his name, as, Sujeet (applicant). Both of them have been apprised about the secret information. 10.7. Thereafter, the ruck sack, which the bike rider was having, was checked. On checking the same, a transparent envelope was found containing stick shaped black coloured substance, which, on smelling and on the basis of experience, was found to be Charas. On weighment, the said Charas was found to be 1.254 kilograms. Other codal formalities were completed. 10.8. After registration of the case, accused persons were arrested and the contraband was taken into possession. After completion of other codal formalities, the contraband was sent to SFSL, Junga, from where, positive report has been received. 11. After completion of the investigation, charge- sheet, has been filed, in the Court of learned Special Judge-I, Sirmaur District at Nahan. There are total 27 prosecution witnesses, out of which, two have been examined and the case is now listed for recording the statements of prosecution witnesses on 01.11.2025. 12. On the basis of the above facts, a prayer has been made to dismiss the application. 13. As per the police, the contraband, involved in the present case, is 1.254 kilograms of Charas, which was found from the possession of the accused persons. The said contraband was found from the ruck sack, which accused Ankit was carrying on his shoulder and accused Sujeet (applicant) was pillion rider. Ankit and Sujeet (applicant) are real brothers. 14. 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. 15. 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. 15. 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. 16. 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. 17. 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. 18. 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. 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. 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.” 19. 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. 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. 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. 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) 20. 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. 21. 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. 21. 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 the offence and in case, he is ordered to be released, on bail, he is not likely to commit any such 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. 22. 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.