Sushil Kukreja DECISION
Sushil Kukreja, J.
1. By way of instant petition filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.), the petitioner is seeking bail in case FIR No. 74/2022, dated 20.10.2022, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act") registered with Narcotics Control Bureau (NCB), Sub Zone Mandi, H.P.
2. The prosecution story, in brief, is that a team of NCB received a secret information that two persons, namely, Som Nath and Ram Singh (petitioner herein) were involved in trafficking of charas. On the basis of said information, the NCB Mandi team reached at Bajaura bypass on 20.10.2022 and at about 6:30 am, a white coloured Maruti 800 bearing registration No. PB-07G-2400 came from Bhuntar side, which was stopped by the NCB team and the persons sitting in the said vehicle, i.e. accused persons, were asked to disclose their identity. One person disclosed his name as Som Nath and other as Ram Singh(petitioner herein). After ascertaining their identities, the Investigating Officer tried to associate the persons walking on the road in the proceedings, but they refused and thereafter, the Investigating Officer called Pradhan of Gram Panchayat Hat Bajaura namely Barkat Ali and Ward Member Arun Sharma and associated them as independent witnesses. After that a local mechanic, namely Jogu Ram, was called for opening the parts of the vehicle in the presence of both the accused persons as well as the independent witnesses. During the search, 13 packets wrapped with brown coloured tape were recovered from the front mudguard upper side of tyres, which were containing charas. On weighment, the recovered charas/cannabis was found to be 4.424 Kgs. Thereafter, the police completed all the codal formalities and both the accused persons were arrested.
3. The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned counsel for the petitioner has contended that the petitioner is in judicial custody since 20.10.2022 and the trial is not going to be completed in near future, therefore, the petitioner deserves to be released on bail, as no fruitful purpose would be served by keeping him behind the bars for an unlimited period.
4. Per contra, the learned counsel for the respondent/NCB opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner and quantity of the recovered contraband, i.e. commercial quantity, he is not entitled to be enlarged on bail.
5. I have heard the learned counsel for the petitioner as well as learned counsel for the respondent/NCB and have also gone through the record of the case and I am of the firm opinion that the petitioner has not made out a case for grant of bail, as a perusal of the record indicates that the quantity of the charas/cannabis recovered from the petitioner is 4.424 Kg, which is a commercial quantity. Since the quantity of the contraband falls within the definition of commercial quantity, therefore, the grant of the bail in this case is governed by the provision of Section 37 of the NDPS Act, which 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, 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. The Apex Court in Union of India vs Prateek Shukla, MANU/SC/0176/2021 : AIR 2021 Supreme Court 1509, has held that merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. The relevant portion of paragraph No. 11 of the said judgment is reproduced hereunder:-
"11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law........"
7. Further, the Apex Court in the matter of The State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha, MANU/SC/0151/2021 : (2021) 5 Supreme Court Cases 724, has held that no person accused for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, 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 relevant portion of paragraph No. 9 of the said judgment is reproduced hereunder:-
"9. .......Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, 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.................".
8. Thus, in view of the aforesaid decisions of Hon'ble Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found in possession of the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of Sub-section (1) of Section 37 of the NDPS Act are in addition to the limitations under the Code of Criminal Procedure. In the instant case, prima facie the petitioner has been found to be in possession of 4.424 Kgs. of charas/cannabis, which is a commercial quantity and has failed to satisfy the conditions, as provided under Section 37 of the NDPS Act. Furthermore, the trial in the case has commenced and the case is listed for recording the statements of prosecution witnesses on 29.02.2024, as such the trial is likely to be concluded in near future. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed.
9. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
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