Vinod Kumar v. State of Haryana
Case Details
CRM-M-4912-2024 203 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-4912-2024 (O&M) Date of decision : 17.01.2025 Vinod Kumar ...Petitioner(s) Versus State of Haryana ...Respondent(s) CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU Present: Mr. K.P. Singh, Advocate, for Mr. Vaibhav Bhargav, Advocate for the petitioner.
Legal Reasoning
should be more than prima facie. 9. The twin-test stipulated under Section 37 of the NDPS Act was considered by Hon’ble the Supreme Court in ‘Union of India Versus Rattan Malik Alias Habul’, (2009) 2 SCC 624 and para Nos.12 & 13 being relevant read as under:- “12. It is plain from a bare reading of the non-obstante clause in Section 37 of the NDPS Act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by clause (b) of sub- section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) -3- ATUL SETHI 2025.01.20 17:00 I attest to the accuracy and integrity of this document CRM-M-4912-2024 the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". 13. The expression “reasonable grounds” has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence (vide Union of India v. Shiv Shanker Kesari). Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.” 10. As per the allegations, contraband recovered from the petitioner is 40 kgs of Ganja, which is commercial in nature. It is also specific allegation of the prosecution that he was driving the vehicle at the relevant point of time, when recovery was effected. Even so far as the concession of regular bail granted to co-accused is concerned, the same would also be of no help, for the simple reason that both of them were nominated on the basis of disclosure made by petitioner as well as co-accused Rakesh. That apart, petitioner is a habitual offender as he is involved in two more cases under the NDPS Act. Above all, the recovery alleged in the present case is commercial in nature; therefore, this Court is not inclined to record the ATUL SETHI 2025.01.20 17:00 I attest to the accuracy and integrity of this document -4- twin-test satisfaction in his favour as per Section 37 (1)(b)(ii) (ibid). CRM-M-4912-2024 11.
Arguments
Mr. Ashok S. Chaudhary, Addl.A.G., Haryana. MAHABIR SINGH SINDHU, J. Present second petition has been filed under Section 439 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C.), for grant of bail pending trial to the petitioner in FIR No.53 dated 29.01.2022, under Sections 20(c), 27(a) & 29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short, ‘the NDPS Act’) registered at Police Station, City Sirsa, District Sirsa, Haryana. 2. Allegations are that 40 kilograms of Ganja was recovered from the petitioner and other co-accused. 3. Contends that petitioner is in custody since 29.01.2022 and two co-accused, namely, Sonu and Rajesh have already been granted the concession of bail pending trial. Also contends that out of total 36 prosecution witnesses, only 03 have been examined till date; therefore, conclusion of trial may take sufficient long time. ATUL SETHI 2025.01.20 17:00 I attest to the accuracy and integrity of this document -1- CRM-M-4912-2024 4. Per contra, learned State counsel, while opposing the prayer, submits that Ganja weighing 40 kilograms, which is commercial in nature, was recovered from the petitioner, who was driving the Scooty (Hero Maestro) bearing registration No.HR-24-AC-0276, at the relevant point of time. Further submits that two co-accused who have been granted the concession of bail pending trial are not similarly situated as they were nominated on the basis of disclosure made by present petitioner as well as co-accused Rakesh Kumar. Again submits that in view the specific bar under Section 37 of the NDPS Act, petitioner is not entitled for concession of bail, at this stage. 5. Heard learned counsel for the parties and perused the paper-book. 6. Before proceeding further, it would be relevant to reproduce the provisions of Section 37 of the NDPS Act and the same read as under:- “Section 37 of the NDPS Act – 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- ATUL SETHI 2025.01.20 17:00 I attest to the accuracy and integrity of this document CRM-M-4912-2024 (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.” 7. Aforesaid Section is in the nature of non-obstante clause to Cr.P.C. including Section 439 thereof and which, inter alia, lays down that no person accused of an offence involving commercial quantity shall be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and not likely to commit any offence while on bail. 8. Both the above conditions are cumulative and not alternative. The law is well settled that requirement of satisfaction in terms of Section 37 (1)(b)(ii) (ibid) regarding the accused being not guilty is to be recorded on the basis of reasonable grounds and that
Decision
In view of the above, there is no option except to dismiss the petition, at this stage. 12. 13. Ordered accordingly. Above observations be not construed as an expression of opinion on merits of the case, in any manner. Pending application(s), if any, shall also stand disposed off. 17.01.2025 atulsethi (MAHABIR SINGH SINDHU) JUDGE Whether speaking / reasoned : Whether Reportable : Yes Yes No No ATUL SETHI 2025.01.20 17:00 I attest to the accuracy and integrity of this document -5-