Under S.37 of NDPS Act, onus on petitioner to prove not guilty and not likely to commit offence on bail: Himachal Pradesh High Court

 Hig h C o urt of H.P on 11 05 HCHP IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) No. 5821 Decided on: 10.05.2021Suman ...…petitioner VersusState of Himachal Pradesh respondent CoramMs. Justice Jyotsna Rewal Dua Judge.Whether approved for reporting 1 yesFor the petitioner : Mr. Vijender Katoch Advocate. For the respondent : Mr.Amit Dhumal Deputy Advocate General. Jyotsna Rewal Dua J The petitioner seeks regular bail in FIR No.11 2021 dated 25.01.2021 registered under Section 21 and 29 of the NarcoticDrugs and Psychotropic Substances Act 1985atPolice Station Damtal District Kangra.2.I have heard learned counsel for the parties and gonethrough the status report filed by the respondent­State as well as thedocuments placed on record.3.The prosecution case in nutshell is that on 25.01.2021 while a police party was on patrolling duty near Excise Barrier Toki itreceived a secret information at around 9.35 P.M. that one Sh. Aanchaland his family members were doing business of selling of Heroin in1 Whether reporters of the local papers may be allowed to see the judgment Hig h C o urt of H.P on 11 05 HCHP 2their house and further that a raid of their house at that point of timecould lead to recovery of huge quantity of heroin. Since the informationwas reliable therefore the procedure as contemplated in law wasfollowed by the police officials. Search of the house belonging to saidSh. Aanchal was carried out at around 10.10 p.m. in presence of Sub­Divisional Police Officer. During search Aanchal alongwith his twodaughters including bail petitioner and minor son Sarang was presentin the house. His other son Sikandar was not present there. The raidingparty dug up the courtyard within the boundary of the house. Thisdigging led to recovery of a steel box containing Rs.1 74 000 ­ from oneplace and from the other place a carry bag was recovered containing abrown coloured substance which was ascertained as Heroin. Thecontraband weighed 377.8 grams. All codal formalities were completed.The recovery of contraband led to registration of the FIR in question.Petitioner alongwith her family members present in the house werearrested on 25.1.2021. Since then petitioner is in custody.4.Learned counsel for the petitioner contended that thepetitioner was innocent and has been falsely implicated with the allegedoffences. Petitioner’s presence in her house was in natural course andcannot lead to an inference that she was aware about the presence ofthe contraband in the house or that she was in conscious possession ofthe contraband or that she had control over the contraband allegedly Hig h C o urt of H.P on 11 05 HCHP 3recovered in the FIR or control over the spot from where the recoverywas allegedly effected. Learned counsel further submitted that thepetitioner will abide by all the conditions which may be imposed uponher in case of grant of bail and that she will not influence theprosecution witnesses or temper with the prosecution evidence in anymanner.Learned Deputy Advocate General while opposing the bailplea argued that the instant is a case of recovery of commercialquantity of contraband therefore Section 37 of the NDPS Act would beattracted and that the petitioner has failed to satisfy the conditionsprescribed under Section 37 of the NDPS Act.5. Since quantity of the contraband recovered in the FIR iscommercial therefore provisions of Section 37 of the NDPS Act areattracted which read as under:­“37. Offences to be cognizable and non­bailable.­(1) Notwithstanding anything contained in the Code of CriminalProcedure 1973every offence punishable under this Act shall be cognizable no person accused of an offence punishable for offences undersection 19 of section 24 or section 27A and also for offences involvingcommercial quantity shall be released on bail or on his own bondunless­the Public Prosecutor has been given an opportunity to oppose theapplication for such release and where the Public Prosecutor opposes the application the court issatisfied that there are reasonable grounds for believing that he isnot guilty of such offence and that he is not likely to commit anyoffence while on bail.(2) The limitations on granting of bail specified in clauseof sub­sectionare in addition to the limitations under the Code of Hig h C o urt of H.P on 11 05 HCHP 4Criminal Procedure 1973or any other law for the timebeing in force on granting of bail.”In order to avail bail the petitioner has to satisfyfollowing twin conditions imposed in Section 37 of the NDPS Act:­Court should be satisfied that there are reasonable groundsfor believing that the petitioner is not guilty of such offence andPetitioner is not likely to commit any offence while on bail.Hon’ble Apex Court in12 SCC 122 titled Stateof Kerala and others Versus Rajesh and others after consideringvarious pronouncements held that the expression ‘reasonable grounds’used in Section 37 of the NDPS Act means something more thanprima­facie grounds. It contemplates substantial probable causes forbelieving that the accused is not guilty of alleged offence. It would beappropriate to extract relevant paras from the judgment:­ “19. The scheme of Section 37 reveals that the exercise of power togrant bail is not only subject to the limitations contained underSection 439 of the CrPC but is also subject to the limitation placed bySection 37 which commences with non­ obstante clause. The operativepart of the said section is in the negative form prescribing theenlargement of bail to any person accused of commission of an offenceunder the Act unless twin conditions are satisfied. The first conditionis that the prosecution must be given an opportunity to oppose theapplication and the second is that the Court must be satisfied thatthere are reasonable grounds for believing that he is not guilty of suchoffence. If either of these two conditions is not satisfied the ban forgranting bail operates. 20. The expression “reasonable grounds” means something more thanprima facie grounds. It contemplates substantial probable causes forbelieving that the accused is not guilty of the alleged offence. Thereasonable belief contemplated in the provision requires existence ofsuch facts and circumstances as are sufficient in themselves to justifysatisfaction that the accused is not guilty of the alleged offence. In thecase on hand the High Court seems to have completely overlooked theunderlying object of Section 37 that in addition to the limitationsprovided under the CrPC or any other law for the time being in force Hig h C o urt of H.P on 11 05 HCHP 5regulating the grant of bail its liberal approach in the matter of bailunder the NDPS Act is indeed uncalled for.”It will also be appropriate to refer to13 SCC 447 titled Sujit Tiwari Versus State of Gujarat and another whereinfollowing was observed in relation to satisfaction of requirement underSection 37 of the NDPS Act vis­à­vis facts of that case:­ “10. The prosecution story is that the appellant was aware of what hisbrother was doing and was actively helping his brother. At this stage we would not like to comment on the merits of the allegations levelledagainst the present appellant. But other than the few WhatsAppmessages and his own statement which he has resiled from there isvery little other evidence. At this stage it appears that the appellantmay not have even been aware of the entire conspiracy because even theprosecution story is that the brother himself did not know what wasloaded on the ship till he was informed by the owner of the vessel. Evenwhen the heroin was loaded in the ship it was supposed to go towardsEgypt and that would not have been a crime under the NDPS Act. Itseems that Suprit Tiwari and other 7 crew members then decided tomake much more money by bringing the ship to India with theintention of disposing of the drugs in India. During this period theMaster Suprit Tiwari took the help of Vishal Kumar Yadav and IrfanSheikh who had to deliver the consignment to Suleman who had toarrange the money after delivery. The main allegation made againstthe appellant is that he sent the list of the crew members after deletingthe names of 4 Iranians and Esthekhar Alam to Vishal Kumar Yadavand Irfan Sheikh through WhatsApp with a view to make theirdisembarkation process easier. Even if we take the prosecution case atthe highest the appellant was aware that his brother was indulging insome illegal activity because obviously such huge amount of moneycould not be made otherwise. However at this stage it cannot be saidwith certainty whether he was aware that drugs were being smuggledon the ship or not though the allegation is that he made such astatement to the NCB under Section 67 of the NDPS Act. 11. At this stage without going into the merits we feel that the case ofthe appellant herein is totally different from the other accused.Reasonable possibility is there that he may be acquitted. He has beenbehind bars since his arrest on 4­8­2017 i.e. for more than 2 years andhe is a young man aged about 25 years. He is a B.Tech Graduate.Therefore under facts and circumstances of this case we feel that this isa fit case where the appellant is entitled to bail because there is apossibility that he was unaware of the illegal activities of his brotherand the other crew members. The case of the appellant is different fromthat of all the other accused whether it be the Master of the ship the Hig h C o urt of H.P on 11 05 HCHP 6crew members or the persons who introduced the Master to theprospective buyers and the prospective buyers.12. We however feel that some stringent conditions will have to beimposed upon the appellant.”It would also be appropriate to refer to 2015SCC 222titled as Mohan Lal Vs. State of Rajasthan wherein it was observed thatthe terms “possession” consists of two elements. First it refers to the corpusor the physical control and the second it refers to the animus or intent whichhas reference to exercise of the said control.Present was a case of recovery of commercial quantity ofthe contraband from beneath a courtyard within the house and for thisreason all the family members residing in the house have been madeaccused in the FIR viz:­ Aanchal aged 56 years Suman D O Aanchalaged 20 years Seema D O Aanchal aged 21 years Sarang S O Aanchalaged 17 years and Sikandar S O of Aanchal aged 36 years. But forSikandar all the other family members including the bail petitionerwere arresed on 25.01.2021. Sikandar who statedly absconded wasarrested on 26.3.2021. Sarang S O Aanchal being juvenile wasreleased on bail by the learned Principal Magistrate Juvenile JusticeBoard Kangra on 25.2.2021. No doubt reverse burden under the NDPSAct would be on the petitioner to prove that she had no knowledgeregarding the presence of the contraband and that she was not inconscious possession thereof. In the instant case the facts as theyemerge from the record are that the house belonged to co­accused Hig h C o urt of H.P on 11 05 HCHP 7Aanchal who is father of the bail petitioner. The house was searchedin cold winter month of January at around 10.10 P.M. The petitioner isdaughter of co­accused Aanchal. She is aged 20 years and is neithermarried nor employed. She is a student. Her presence in the house ofher father would definitely has to be construed in natural course. Noovert act has been alleged against her by the investigating agency.Status report does not indicate any criminal history of the petitionerrather it is her fatheragainst whom many cases arestatendly registered in the past. Further as per the status report petitioner’s brotherhad also absconded and could bearrested only on 26.3.2021. Mere presence of daughteraged 20 yearsand a student in her home alongwith her father at around 10.10 P.M.in the month of January in a village in District Kangra would not leadto an automatic inference that she had any knowledge about thecontraband allegedly recovered from beneath the courtyard within thehouse belonging to her father Aanchal. There is no material on record which it can be deduced at this stage that the petitioner was in jointpossession of the contraband alongwith other co­accused persons orthat she was in exclusive possession of the contraband or was incontrol of the place from where the contraband was allegedlyrecovered. Status report also does not indicate that during Hig h C o urt of H.P on 11 05 HCHP 8investigation petitioner had admitted her knowledge or possessionabout the contraband allegedly recovered in the FIR. Also in thestatus report there is no linkage of the petitioner to the source of thecontraband. Though all these aspects are to be deliberated by thelearned Trial Court during trial where inter alia complicity of thepetitioner would require to be proved in accordance with law. However on cumulative consideration of all these facets it can be safely inferredat this stage that the petitioner has been able to show that she neitherhad the knowledge nor possession of the contraband recovered in theFIR. There are reasonable grounds to believe that petitioner is notguilty of offence alleged against her in the FIR. By way of abundantcaution it is clarified that the observations made in this judgment arenot to be treated as if final verdict of petitioner being not guilty hasbeen pronounced. The observations made herein are only for limitedpurpose of adjudicating the bail petition in light of riders placed inSection 37 of the NDPS Act. Petitioner is behind the bars since25.01.2021. Petitioner is an unmarried lady aged 20 years a studentand a local resident. She has no criminal history. Therefore it can bebelieved that she is not likely to commit any offence during bail. Toensure this stringent conditions can also be imposed upon her.Petitioner is resident of Village PO and Tehsil­Indora District Hig h C o urt of H.P on 11 05 HCHP 9Kangra Himachal Pradesh therefore her presence can be ensured inthe trial. Accordingly the present petition is allowed. Petitioner isordered to be released on bail in the aforesaid FIR on her furnishingpersonal bond in the sum of Rs.75 000 ­with one local surety in the like amount to thesatisfaction of the learned trial Court having jurisdiction over thePolice Station concerned subject to the following conditions:­

Summary: While deciding a bail petition under the Narcotic Drug and Psychotropic Substances Act, for a case under section 37 of the act, the onus is on petitioner to prove not guilty of offence and not likely to commit offence on bail. This judgment was passed in the case of Suman vs. State of Himachal Pradesh [Cr.M.P.(M). No. 580/2021] by a Single Bench consisting of Hon’ble Justice Jyostsna Rewal Dua.  The petitioner was seeking a normal bail under the section 21 and 29 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). It was the prosecution’s case that while the police of patrolling they received information that sh. Aanchal and his family were selling heroin in their house and on a raid they would find high quantities of the same. on raid, Aanchal his two daughters, the petitioner and minor son was present. They found cash worth Rs. 1,74,000/- and a bag full of brown coloured substance which they found to be heroin. FIR was filed that petitioner was arrested along with family members. The petitioner contended that her living in the House was in normal course and it cannot lead to the inference that she was aware of the presence of contraband. It was also submitted that the petitioner will abide by all conditions and will not influence the prosecution witness or tamper with evidence. The counsel for state argued that all the conditions under Section 37 of NDPS act was satisfied and therefore she is not eligible for bail. In order to avail bail two conditions must be satisfied by the petitioner- court should be satisfied that there are reasonable grounds for believing that petitioner is not guilty of such offence and petitioner is not likely to commit an offence while on bail. The Hon’ble Supreme Court held in the case of State of Kerala vs. Rajesh and Ors. [(2020) 12 SCC 122], the term “reasonable grounds” refers to more that prima- face grounds and contemplates substantial causes for believing that the accused is not guilty of the offence. Further in the case of Mohan Lal vs. State of Rajasthan [2015 6 SCC 222], the term “possession” was held to physical control and intent to exercise the said control. The petitioner was a 20 year old student and had no employment. Her presence in the house was said to be out of natural course. Further, there was no evidence which suggested that the petitioner was in possession of the contraband or knew about the possession other than her presence in her house. On a cumulative assessment of the said facts and the above mentioned case laws, the Hon’ble High Court held that there were sufficient grounds to believe that the petitioner is not guilty of the offence. These grounds were mentioned only with respect to bail under Section 37 of the NDPS act. The court believed that she was a student with no income and employment there is no scope for her to tamper the evidence or witness. The bail petition was allowed with certain conditions.