For granting bail under NDPS Act, the Court must have reasonable grounds to believe that the accused has not committed the offence: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 25th January 2022 Pronounced on: 8th February 2022 BAIL APPLN. 51 2022 Through: Mr. Akshay Bhandari and … Petitioner Mr. Digvijay Singh Advocates STATE… Respondent Through: Ms. Kusum Dhalla APP for State HON’BLE MR. JUSTICE CHANDRA DHARI SINGH JUDGMENT CHANDRA DHARI SINGH J. The present application has been preferred under Section 439 of the Code of Criminal Procedure 1973for seeking regular bail in FIR bearing No. 192 2017 registered at Police Station Crime Branch under Section 22 of Narcotics Drugs and Psychotropic Substances Act 1985On 29th October 2017 ASI Pawan Kumar of Narcotics Cell Crime Branch received a secret information that one person namely Kamal Kalra resident of Rohini Delhi who was involved in sale & supply of Ecstasy in Delhi NCR and would come near Goodwill Apartment Sector 13 Rohini Delhi with his associate Akshay in between 06:30 07:00 PM to deliver Ecstasy to someone. The secret information was shared with Inspector NCB who verified the facts and conveyed the same to ACP NCB. The ACP ordered to conduct a raid. The secret information was reduced into writing vide DD No. 07 dated 29th October 2017 at 05:50 PM at Narcotics Cell Crime Branch and the same was forwarded to senior officers in compliance of Section 42 of the NDPS Act. After obtaining permission from senior officers and following all the mandatory provisions under NDPS Act ASI Pawan Kumar organized a raiding party comprising of himself ASI Satbir Singh and HC Satender Pal and left for the spot at 06:00 PM vide DD No. 8 in a private vehicle No. HR 10N 0449. On the way to the spot public persons were requested to join the raiding party but none of them agreed. Trap was laid at the spot and at the instance of informer one person was apprehended at about 07:05 PM whose identity was revealed as Kamal Kalra s o Rajinder Kaira r o F 3 58 Sector 11 Rohini Delhi. The apprehended person was apprised about the secret information and his legal rights to be searched in BAIL APPLN. 51 2022 presence of a Gazetted Officer or Magistrate. A written notice u s 50 NDPS Act was also served upon him but he declined to be searched in presence of a G.O Magistrate. Thereafter his formal search was carried out wherein 100 Pills of Ecstasy were recovered from his possession. The recovered contraband was seized after taking out two samples of 10 pills each. Accordingly the FIR bearing No. 192 17 dated 29th October 2017 under Sections 22 29 of the NDPS Act was registered at Crime Branch and further investigation of the case was carried out by ASI Dushyant Kumar. During investigation IO ASI Dushyant Kumar arrested the accused Kamal Kalra who made a disclosure statement stating therein that he procured the recovered contraband from Mahesh Goel and disclosed the Mobile number of the Applicant. Accused Kamal Kalra was allowed to use his seized Mobile phone during PC remand just to apprehend the applicant. Accordingly at the instance of accused Kamal Kalra Applicant was apprehended at 8:30 PM on 31st October 2017 from Dwarka and 20 grams of 3 4 Methylenedioxymethamphetamine MDMA) was recovered from his possession and subsequently he was arrested in the case. Exhibits were sent to FSL for analysis and the report thereof received was positive for EcstasyNotwithstanding anything contained in the Code of Criminal Procedure 1973a) 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 BAIL APPLN. 51 2022 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 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 limitations on granting of bail specified in clause of sub section are in addition to the limitations under the Code of Criminal Procedure 1973 74) or any other law for the time being in force on granting of bail. In view of the gravity of the consequences of drug trafficking the offences under the NDPS Act have been made cognizable and non bailable. The Section does not allow granting bail for offences punishable under Section 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the two fold conditions prescribed under the Section have been met. The conditions include hearing the Public Prosecutor and satisfaction of the court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature. 11. The fetters on the power to grant bail do not end here they are over and above the consideration of relevant factors that must be done while considering the question of granting bail. The Court also needs to be BAIL APPLN. 51 2022 satisfied before grant of bail about the scheme of Section 439 of the Code. Thus it is evident that the present Section limits the discretion of the court in matters of bail by placing certain additional factors over and above what has been prescribed under the Code. 12. While considering the question of bail the Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e. prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail but the court must have „reasonable grounds‟ for such satisfaction. 13. The term „reasonable grounds‟ under Section 37(b)(ii) has been interpreted by the Hon‟ble Supreme Court in the case of Union of India v. Shiv Shanker Kesari 7 SCC 798. It was a case where an appeal was preferred against the order granting bail under the NDPS Act by the High Court. The prosecution alleged that the raiding party seized nearly 400 kgs of poppy straw from the possession of the accused therein. The special court rejected the bail while the High Court granted the bail on the ground that the recovery was not from the exclusive possession of the accused but other family members were also involved. The Supreme Court set aside the order granting bail. In this context it interpreted „reasonable grounds‟ under Section 37 of the Act as under: “7. The expression used in Section 37(1)(b)(ii) is expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the grounds”. The BAIL APPLN. 51 2022 in turn points accused is not guilty of the offence charged and this reasonable belief contemplated existence of such facts and circumstances as are justify recording of satisfaction that the accused is not guilty of the offence charged. 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”. 14. Thus the term „reasonable grounds‟ is not capable of any rigid definition nor of being put into any straight jacket formula but its meaning and scope will be determined based on the surrounding facts and circumstances of each case. Thus what may be reasonable in one set of facts may not be reasonable in another set of facts. 15. The Supreme Court recently in the case of Union of India v. Md. Nawaz Khan10 SCC 100 has reiterated the position of law with respect to Section 37 of the Act. After analysing the previous decisions of the Hon‟ble Supreme Court the court prescribed the following test for granting bail under Section 37 of the NDPS Act: “20. Based on the above precedent the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the country the menace of drug trafficking BAIL APPLN. 51 2022 stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 16. Thus the Court must be conscious about the mischief that is sought to be curbed by the Act and the consequences that might ensue if the person accused of the offence under the Act is released on bail. The court ought to be satisfied on the basis of reasonable grounds discernible from the facts and circumstances that the Petitioner is not guilty of offences that the accused is charged with. Additionally the court also needs to be satisfied that the person so released will not commit the offence while being on bail. In the instant case the Applicant has been accused of and charged for possessing 20 grams of Ecstasy being a commercial quantity. However the main accused charged with the possession of a larger quantity of contraband and on the basis of whose statement the Applicant was arraigned and subsequently raided upon in the instant case has already been released on Bail by a Coordinate Bench of this High Court. Thus the application of the Applicant merits indulgence of this Court on the ground of parity. 18. Further neither the Status Report on record nor the learned APP in the course of her arguments has cited the previous involvement of the Applicant in any other criminal cases and as such the Applicant has clean antecedents as evident from material on record. 19. Therefore proceeding to the application of Section 37 in the instant matter the APP has been heard who has vehemently opposed the bail BAIL APPLN. 51 2022 petition. In light of the aforesaid facts and circumstances prima facie the second condition prescribed under the section is satisfied. This Court is satisfied that there are reasonable grounds based on the analysis of the provision in the foregoing paragraphs and its application to the facts of the case that the Applicant praying for regular bail can be allowed indulgence of this Court. 20. Further in the instant case the Applicant has been incarcerated for more than four years as an undertrial whereas on date two of the witnesses have been examined and the trial remains pending. Speedy Justice is a Fundamental Right enshrined under the ambit of Article 21 of the Constitution of India and the same needs to be given effect by this Court in letter and in spirit else it will remain as a dead letter of law. 21. The Constitution Bench judgment of the Hon‟ble Supreme Court in Abdul Rehman Antulay v. R.S. Nayak1 SCC 225 has laid down the detailed guidelines with respect to speedy trial and observed as under: “86. In view of the above discussion the following propositions emerge meant to serve as guidelines. We these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: 1) Fair just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or BAIL APPLN. 51 2022 that it serves the social interest also does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. 2) Right to speedy trial flowing from Article 21 encompasses all the stages namely the stage of investigation inquiry trial appeal revision and re trial. That is how this Court has understood this right and there is no reason to take a restricted view. 3) The concerns underlying the right to speedy trial from the point of view of the accused are: the period of remand and pre conviction detention should be as short as possible. In other words the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction the worry anxiety expense and disturbance to his vocation and peace from an unduly prolonged investigation inquiry or trial should be minimal and c) undue delay may well result impairment of the ability of the accused to defend himself whether on account of death disappearance or non availability of witnesses or otherwise. BAIL APPLN. 51 2022 the prosecution 4) At the same time one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out “delay is a known defence tactic”. Since the burden of proving the guilt of the accused lies prejudices the prosecution. Non availability of witnesses disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course there may be cases where the prosecution for whatever reason also delays the proceedings. Therefore in every case where the right to speedy trial is alleged to have been infringed the first question to be put and answered is — who is responsible for the delay Proceedings taken by either party in good faith to vindicate interest as their rights and perceived by them cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte 5) While determining whether undue delay has occurred one must have regard to all the BAIL APPLN. 51 2022 attendant circumstances including nature of offence number of accused and witnesses the workload of the court concerned prevailing local conditions and so on — what is called the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well but a realistic and practical approach should be adopted in such matters instead of a pedantic one. 6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell J. in Barker“it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate”. The same idea has been stated by White J. in U.S. v. Ewellin the following words: „… the Sixth Amendment right to a speedy trial is necessarily relative is consistent with delays and has orderly expedition rather than mere speed as its essential ingredients and whether completing a prosecution amounts to an unconstitutional deprivation of depends upon all the circumstances.‟ However inordinately long delay may be taken as presumptive proof of prejudice. In this context the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But BAIL APPLN. 51 2022 when does the prosecution become persecution again depends upon the facts of a given case. 7) We cannot recognize or give effect to what is called the „demand‟ rule. An accused cannot try himself he is tried by the court at the behest of the prosecution. Hence an accused s plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case he did make such a demand and yet he was not tried speedily it would be a plus point in his favour but the mere non asking for a speedy trial cannot be put against the accused. Even in USA the relevance of demand rule has been substantially watered down in Barkerand other succeeding cases. 8) Ultimately the court has to balance and weigh the several relevant factors — „balancing test‟ or „balancing process‟ — and determine in each case whether the right to speedy trial has been denied in a given case. 9) Ordinarily speaking where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction as the case may be shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case it is open to the court to make such other appropriate order — including an order to BAIL APPLN. 51 2022 conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded — as may be deemed just and equitable in the circumstances of the case. 10) It is neither advisable nor practicable to fix any time limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial it is primarily for the prosecution to justify and explain the delay. At the same time it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. 11) An objection based on denial of right to speedy trial and for relief on that account should first be addressed to the High Court. Even if the High Court entertains such a plea ordinarily it should not stay the proceedings except in a case of grave and exceptional nature. Such proceedings in High Court must however be disposed of on a priority basis.” BAIL APPLN. 51 2022 22. It is also pertinent to point out that these guidelines have subsequently been upheld by a seven judge bench of the Hon‟ble Supreme Court in P. Ramachandra Rao v. State of Karnataka4 SCC 578. These guidelines were further applied by the Hon‟ble Supreme Court in the subsequent decision of Pankaj Kumar v. State of Maharashtra16 SCC 117 wherein the court laid down the following test with regard to the application of the guidelines: the balancing act upon “23. In every case where the right to speedy trial is alleged to have been infringed the court has to consideration all the attendant circumstances enumerated above and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed the charges or the conviction as the case may be may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances quashing of proceedings may not be in the interest of justice. In such a situation it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for the conclusion of trial.” In the instant case the Applicant has been in jail for more than four years. Out of a total of 14 witnesses only two witnesses have been examined as on date and as such there is no probability of the trial being concluded in the near future. Thus pending trial the Applicant cannot be kept incarcerated for an indefinite period. Therefore this Court must step in to ensure that speedy justice is done and injustice is not caused to the BAIL APPLN. 51 2022 undertrial Applicant. Further as already mentioned the main accused charged with the possession of a larger quantity of contraband has already been enlarged on Bail by a Coordinate Bench of this High Court. Thus the application of the Applicant is also entitled to bail on the ground of In view of the aforementioned facts circumstances analysis and reasoning keeping in mind the legal provisions specifically on the ground of parity and clean antecedents of the Applicant this Court is inclined to allow the instant bail application albeit with stringent conditions given the gravity of the accusations levelled. It is accordingly directed that the Applicant shall be released on bail upon his furnishing of a personal bond of Rs. 50 000 with two sureties of like amount to the satisfaction of the Investigating Officer subject to the following conditions: a) he shall surrender his passport if any to the Investigating Officer and shall under no circumstances leave India without prior permission of the Court concerned b) he shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case c) he shall provide his mobile number(s) to the Investigating Officer and keep it operational at all times d) he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer BAIL APPLN. 51 2022 e) he shall commit no offence whatsoever during the period he is on bail f) he shall appear before the Court concerned on every date and g) in case of change of residential address and or mobile number he shall intimate the same to the Investigating Officer Court concerned by way of an affidavit. 26. The Trial Court is directed to continue with the trial and endeavour to conclude the same as expeditiously as possible. 27. Accordingly the instant bail application stands allowed. It is however made clear that the observations made herein qua the Applicant while allowing this application shall have no bearing whatsoever on the merits of the case or on the trial pending before the 29. Copy of the judgment be sent to the concerned Jail Superintendent 30. The judgment be uploaded on the website forthwith. CHANDRA DHARI SINGH) Court concerned. for compliance. February 8 2022 BAIL APPLN. 51 2022 

Summary: The Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e. prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds” for such satisfaction. The test which the Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail and the same was upheld by High Court of Delhi through the learned bench led by Justice Chandra Dhari Singh in the case of MAHESH vs. STATE (GOVT OF NCT OF DELHI) [BAIL APPLN. 51/2022] on 08.02.2022. The facts of the case are that the Narcotics Cell Crime Branch received a secret information that Kamal Kalra who was involved in sale &amp; supply of Ecstasy in Delhi-NCR would come near Goodwill Apartment situated in Rohini, Delhi with his associate Akshay to deliver Ecstasy to someone. The secret information was shared with Inspector/NCB, who verified the facts and conveyed the same to ACP. The ACP ordered to conduct a raid. The secret information was reduced into writing at Narcotics Cell, Crime Branch and the same was forwarded to senior officers in compliance of Section 42 of the NDPS Act. During investigation, IO/ASI arrested the accused Kamal Kalra who made a disclosure statement therein that he procured the recovered contraband from Mahesh Goel. The present application has been preferred by the accused for seeking a regular bail. The plaintiff’s counsel submitted that the main accused against whom there is an allegation of being in possession of 42 grams of Ecstasy has already been enlarged on bail. The allegation against the Applicant is that he was found in possession of 20 grams of Ecstasy which is much lesser than the allegation against the main accused and therefore, it was submitted that the Applicant should be released on bail as the case of the Applicant is on a better footing. The respondent’s counsel opposed the Bail Application and submitted that the contraband recovered from the Applicant was of commercial quantity. It was stated that in case a bail is granted to the applicant, then it is quite likely that he may again get involved in drug trafficking. In view of the aforementioned facts and circumstances, keeping in mind the legal provisions specifically on the ground of parity, the Court was inclined to allow the instant bail application albeit with stringent conditions. The Court observed, “while considering the question of bail, the Court under Section 37(b)(ii) of the NDPS Act is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds” for such satisfaction. The test which the Courts are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail.