Bail to be granted only if there are reasonable grounds to believe that the applicant is not guilty of such an offence: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 09 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No.11921 Decided on: 8th July 2021 Abhishant Minhas …..Petitioner Versus State of Himachal Pradesh .....Respondent Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting 1 For the Petitioner: Mr. Sanjay Jaswal Advocate. For the Respondent: Mr. Anil Jaswal Additional Advocate General. Jyotsna Rewal Dua JudgePetitioner is co accused along with four others in FIR No. 81 2020 dated 23.6.2020 registered at Police Station Damtal District Kangra under Sections 21 22 and 29 of the Narcotic Drugs & Psychotropic Substance Act 1985Samridhi Bedi the girl occupying the front seat adjoining to the driver seat and Rajat & Abhishant Minhasoccupying the back seat. Further search of the vehicle led to recovery of 1102 number of Ridley capsules underneath the seat adjoining to the driver seat i.e. the seat occupied by Samridhi Bedi. The Drug Detection Kit confirmed the recovered contraband as Heroin. Weight of this contraband so recovered from the middle of front seat of the vehicle measured 8.38 grams on the electronic scale. Entire procedure contemplated under Code of Criminal Procedure as well as under the Narcotic Drugs and Psychotropic Substances Act was followed leading to registration of FIR in question. All the four accused persons were arrested on 24.06.2020. 3(ii). According to the status report during investigation the accused persons including the petitioner Hig h C o urt of H.P on 09 07 CIS 4 disclosed that they were drug addicts and to meet the expenses in purchasing the drugs they also used to sell the same. The Heroin and capsules recovered from the car were stated to have been purchased by the accused persons from one Surinder Pal @ Chandi @ Veera s o Gulzari Lal r o village Chhanni Tehsil Indora District Kangra. Co accused Samridhi Bedi also disclosed during investigation that she used to purchase the capsules and Heroin from said Surinder Pal. Sidhant Thakur @ Kannu also disclosed during investigation about purchasing Heroin and capsules from Surinder Pal. The statement was allegedly corroborated by the other accused persons as well. 3(iii). Call Detail Reports of the mobile No. 88604 30908 belonging to Samridhi Bedi were obtained by the investigating agency. As per these reports on 23.6.2020 itself i.e. the day of the incident Samridhi Bedi had spoken to Surinder Pal on his mobile No. 84274 97517 twelve times. According to the status report all the accused persons during investigation disclosed that they are habitual drug addicts. Samridhi Bedi and Sidhant Thakur in past also have purchased Heroin and capsules from Surinder Pal. Hig h C o urt of H.P on 09 07 CIS 5 3(iv). Status report indicates following criminal antecedents of the petitioner: a) Case No. 12 2019 dated 24.1.2019 under Section 341 323 324 and 34 IPC. b) Case No. 63 2019 dated 11.5.2019 registered under Section 354(D) and 12 17 of POCSO Act at Police Station Shahpur. 3(v). State Forensic Science Laboratory Junga submitted its report according to which the recovered Ridley Capsules contained psychotropic substance Tramadol Hydrochloride. Total weight of Ridley capsules recovered from the vehicle in question occupied by all the four accused persons was 706.200 grams and total weight of the powder of these capsules was 600.600 grams. According to the status report Surinder Pal from whom the petitioner and other co accused persons had allegedly procured the contraband had initially absconded. His anticipatory bail application Cr.MP(M) No.11420 was dismissed as withdrawn by this Court on 16.7.2020. His second bail petition No.Cr.MP(M) No.13120 for grant of anticipatory bail without giving detail of his first bail petition was dismissed on 13.8.2020. His third anticipatory bail application No.15020 filed without giving details of previous two bail applications was Hig h C o urt of H.P on 09 07 CIS 6 dismissed on 7.9.2020. Investigating Agency was able to nab and arrest him only on 16.10.2020. His fourth bail petition bearing Cr.MP(M) No.9621 for grant of regular bail has been dismissed by this Court on 1st July 2021. Cr.MP(M) No.19120 preferred by petitioner in this Court was withdrawn by him on 11th November 2020 with liberty to approach the learned Trial Court. His regular bail was rejected by learned trial Court on 22.12.2020. Instant bail application has been preferred by him on 28.06.2020 which is being considered in this judgment. All other co accused are in custody. Their bail petitions stand rejected. 4. Learned Counsel for the petitioner has argued that the petitioner has been falsely implicated with the alleged offence. Whereas learned Additional Advocate General vehemently opposed the bail on the ground that commercial quantity of psychotropic substance Tramadol was recovered from the vehicle occupied by petitioner. Record shows that it was a case of joint possession of all the four accused persons. 5(i). Heroin as well as Ridley capsules allegedly supplied by the petitioner were recovered from the vehicle Hig h C o urt of H.P on 09 07 CIS 7 occupied by four co accused persons. Heroin so recovered weighed 8.38 grams which falls under commonly known ‘intermediate quantity’ under the NDPS Act. According to the SFSL report total weight of recovered capsules was 706.200 grams and total weight of the powder of recovered capsules was 600.600 grams. It would be apposite here to refer to the judgment passed by Hon’ble Apex Court in Criminal Appeal No.7217 titled as Hira Singh Vs. Union of India decided on 22nd April 2020 wherein it has been held that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s) the quantity of the neutral substance(s) is not to be excluded rather it is to be taken into consideration alongwith actual content by weight of the offending drug while determining the ‘small quantity’ or ‘commercial quantity’ of a narcotic drug or psychotropic substance. The relevant para from the judgment is reproduced thus: “10. In view of the above and for the reasons stated above Reference is answered as under: The decision of this Court in the case of E.Micheal Rajtaking the view that in the mixture of narcotic drugs and psychotropic substance with one or more neutral substance(s) the quantity of the neutral substance(s) is not required to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity is not a good law Hig h C o urt of H.P on 09 07 CIS 8 In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s) the quantity of neutral substance(s) is not to be excluded and to be taken into consideration alongwith actual content by weight of the offending drug while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances Section 21 of the NDPS Act is not stand alone provision and must be construed alongwith other provisions in the statute including provisions in the NDPS act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E) dated 19.10.2001. Challenge to Notification dated 18.11.2009 adding “Note 4” to the Notification dated 19.10.2001 fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently writ petitions and Civil Appeal No. 5218 2017 challenging the aforesaid notification stand dismissed.” In the instant case total weight of powder of recovered capsule was 600.600 grams. This weight exceeds 250 grams notified as commercial quantity of Tramadol under the NDPS Act. Therefore rigors of Section 37 of the NDPS Act get attracted. Section 37 reads as under: “37. Offences to be cognizable and non bailable. Notwithstanding anything contained in the Code of Criminal Procedure 1973(a) every offence punishable under this Act shall be cognizable no person accused of an offence punishable forshall be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity to oppose the application for such release and 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. The limitations on granting of bail specified in clauseof sub sectionare in addition to the limitations under the Code of Criminal Procedure 1973or any other law for the time being in force on granting of bail.” Hig h C o urt of H.P on 09 07 CIS 9 In this regard Hon’ble Apex Court in AIR 2020 SC 721 State of Kerala Etc. Versus Rajesh Etc. held as under vide paras 19 to 21: “19. 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. 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 Goa1 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 885 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 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 are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid Hig h C o urt of H.P on 09 07 CIS 10 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.” 20. 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 nonobstante 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. 21. 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 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 s indeed uncalled for.” In order to make out a case for release on bail petitioner has to satisfy the following twin conditions imposed in the aforesaid section: Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and Petitioner is not likely to commit any offence while on bail. Hig h C o urt of H.P on 09 07 CIS 11 5(ii). It has already been noticed that though the quantity of the Heroin recovered from the vehicle in question fell under commonly known as ‘intermediate quantity’. However total weight of powder of 1102 number of Ridley capsules containing psychotropic substance Tramadol hydrochloride was 600.600 grams. The weight of powder of the capsules allegedly recovered from the vehicle exceeded 250 grams notified as commercial quantity of psychotropic substance Tramadol under the NDPS Act. Possession consists of two elements corpus or the physical control and the second animus or intent6 SCC 222 titled Mohan Lal vs. State of Rajasthan). I have perused the record. At this juncture it cannot be said that petitioner was not in joint possession of the recovered contraband. Heroin was allegedly recovered from the middle of the front seat whereas Ridley capsules were recovered underneath the seat adjoining to the driver seat of the vehicle. During investigation all the accused persons have statedly admitted about consuming the contraband and purchasing it from Surinder Pal. As per record though the co accused Samridhi Bedi had obtained the recovered contraband from Surinder Pal but from the perusal of record at this stage it cannot be said that the contraband Hig h C o urt of H.P on 09 07 CIS 12 was meant to be used only by her or that the other accused persons were not in joint possession of the contraband. The petitioner therefore has failed to meet the requirements of Section 37 of the NDPS Act. It cannot be said at this juncture that there are no reasonable grounds to believe that petitioner is not guilty of the offence alleged against her. Therefore there is no merit in the bail petition which is dismissed at this stage reserving liberty to the petitioner to file fresh petition at an appropriate stage in accordance with law if so advised. It is clarified that observations made above are confined only to the adjudication of petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations. Jyotsna Rewal Dua Judge July 08 2021 Mukesh 

Summary: Bail application can be rejected by the court under section 37 of the NDPS act if there are no reasonable grounds to believe that the applicant is not guilty of the offence alleged against him/her. This was held by Ms. Justice Jyotsna Rewal Dua in the case of Abhishant Minhas Vs. State of Himachal Pradesh [Cr.MP(M) No.1198 of 2021] On the 8th of July in the Hon’ble High Court of Himachal Pradesh, Shimla. The brief facts of the case are, on 23.6.2020, the police were patrolling a certain area where they noticed a car parked with four occupants. The police suspected this solitary parked vehicle and approached the vehicle and asked the reasons for parking the vehicle there. The answers received by the police raised suspicion and thus a search was conducted in accordance with law. During this search, heroin and ridley capsules were recovered from the car. The four persons identified themselves as, Sidhant Thakur (the driver), Samridhi Bedi occupying the front seat adjoining to the driver seat and Rajat &amp; Abhishant Minhas (petitioner herein) occupying the back seat. Entire procedure contemplated under Code of Criminal Procedure as well as under the Narcotic Drugs and Psychotropic Substances, Act was followed leading to registration of FIR in question. All the four accused persons were arrested on 24.06.2020. The present petition is filed for the purpose of seeking bail through the instant bail application. The counsel for the petitioner submits that, the petitioner has been falsely implicated with the alleged offence. However, the Counsel for the respondent submitted that the psychotropic substance recovered from the vehicle was found to be in joint possession of all the four accused persons asper record. It was also submitted that the petitioner had 2 criminal antecedents relating to the Indian Penal Code and the POCSO act. It was also submitted that during the investigation, the petitioner revealed he was a Drug addict. The court to analyze whether the bail application must be accepted had to first determine whether the amount of substance recovered was ‘commercial quantity’. In the instant case, total weight of powder of recovered capsule was 600.600 grams. This weight exceeds 250 grams notified as commercial quantity of Tramadol under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act get attracted. The learned judge relied on the judgement in State of Kerala Etc. Versus Rajesh Etc. AIR 2020 SC 721 wherein, the apex court held that, “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.”