- The instant application under Section 439 of the Code of
Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of
applicant seeking grant of regular bail in case FIR bearing no.
146/2023, registered at Police Station Badarpur, Delhi for the
offences punishable under Sections 20/29 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 (‘NDPS Act’). - Brief facts of the present case are that on 19.04.2023,a secret
information was received that two persons namely Raveena and Hari
Ram, who supply ganja from Mathura, U.P. to Delhi-NCR, will
arrive in a scooty near Bardarpur border to supply ganja to someone
in Delhi. The information was shared with senior officers, and DD
entry was recorded as per law. On the direction of ACP concerned, a
raiding team was constituted, and a trap was laid down near Badarpur
Metro Station.At about 2:30 PM, one male and one female riding on
a Honda scooty, who were carrying bags with them, were
apprehended by the raiding team. The male was identified as
accused/applicant Hari Ram and the female was identified as
Raveena Kumari. Raveena, who was pillion rides, was carrying a big
black colour bag on her lap, while Hari Ram, who was driving the
scooty, was carrying a black colour pithu bag on his back. Upon their
search as per law, 23.465 kg and 4.015 kg of ganja were recovered
from the bags of Raveena and Hari Ram respectively. The seizure
was carried out as per law and the present FIR was registered. During
the course of investigation, the accused persons were arrested and
they had disclosed the source of procuring ganja as Chotey Lal and
Sumit. Police custody remands of accused persons were obtained,
and raids were carried out at Aligarh, U.P. and in Delhi NCR, and at
the pointing out of the accused persons, co-accused Chhote Lal was
arrested. The CDRs of all accused persons were analyzed to trace the
supplier Sumit but his identity could not be revealed and he is still
absconding. Samples were drawn as per law and case property was
sealed with a sealed of Magistrate. FSL report was received, and the
chargesheet was filed after conclusion of investigation.
BAIL APPLN. 4016/2023 Page 3 of 6 - Learned counsel for the present accused/applicant states that
the applicant is in judicial custody since 19.04.2023 and he is a
young man of 24 years of age. It is argued that only 4.015 kgs of
ganja was allegedly recovered from his possession, which is
intermediate quantity, and therefore, bar under Section 37 of NDPS
Act will not be applicable. It is also stated that the main accused is
co-accused Raveena, and since investigation in this case has been
concluded and chargesheet has already been filed, no useful purpose
will be served by keeping the applicant behind bars. Therefore, it is
prayed that applicant be granted regular bail. - Learned APP for the State, on the other hand, argues that
Section 29 of NDPS Act is attracted in this case as applicant Hari
Ram and co-accused Raveena were carrying ganja while travelling
on the same scooty, from Mathura to Delhi. It is stated that the
quantity recovered from both the accused i.e. total 27.471 kgs of
ganja is commercial in nature, and therefore, bar of Section 37 of
NDPS Act is applicable in this case. Learned APP also states that
material witnesses are yet to be examined in this case and therefore,
the present application be dismissed. - In rebuttal, learned counsel for the applicant, while relying on
the judgment of Amar Singh Ramji Bhai Barot v. State of Gujarat
(2005) 7 SCC 550, argues that recovery of two accused in this case
cannot be clubbed together for the determination as to whether it was
commercial quantity or not and thus, Section 29 of NDPS Act will
not be attracted.
BAIL APPLN. 4016/2023 Page 4 of 6 - This Court has heard arguments addressed by both the learned
counsels, and has perused the material placed on record. - In the case at hand, the applicant Hari Ram and co-accused
Raveena were apprehended on 19.04.2023 at about 02:30 PM, while
they were riding a scooty. As alleged, they had started their journey
from Mathura and had arrived in Delhi, for supplying ganja. During
their search, 23.456 kg of ganja was recovered from co-accused
Raveena whereas 4.015 kg of ganja was recovered from applicant
Hari Ram. Thus, the total recovery in this case, made on the spot
from both the accused persons was 27.471 kgs of ganja, which is
commercial quantity. - During the course of arguments, learned APP for the State had
also submitted that charges in this case already stand framed under
Section 29 read with Section 20(b)(ii)(c) of NDPS Act, vide order
dated 12.12.2023. In these circumstances, this Court is of the opinion
that the argument of learned counsel for applicant that Section 29 is
not attracted in this case and therefore, the bar under Section 37 will
not be applicable here, is without any merit, since on a prima facie
view of the material available on record, the learned Trial Court has
already framed charges under Section 29 of NDPS Act. - As noted above, applicant and co-accused Raveena were
travelling on the same scooty from Mathura to Delhi. A perusal of
chargesheet further reveals that at the instance of both the applicant
and co-accused Raveena, the investigating agency had arrested
another co-accused Chhote Lal in this case. The judgment of Amar
Singh Ramji Bhai Barot (supra) is clearly distinguishable on the
BAIL APPLN. 4016/2023 Page 5 of 6
facts and circumstances, since the Hon’ble Apex Court was
adjudicating an appeal after the trial was over and the prosecution
had failed to bring on record any evidence to show any abatement or
conspiracy under Section 29, and thus, it can be of no help to the
applicant at this stage. Therefore, at this stage, the applicant cannot
contend that Section 37 of NDPS Act is not applicable for the
purpose of adjudicating the present bail application. - As regards the law of Section 37 of NDPS Act, it will be
relevant to refer to the observations of the Hon’ble Apex Court in
case of Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC
OnLine SC 891, which read as under:
“10. The provisions of Section 37 of the NDPS Act read as
follows:
“37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Criminal
Procedure Code, 1973 (2 of 1974) –
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
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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) The limitations on granting of bail specified in clause
(b) of subsection (1) are in addition to the limitations under
the Criminal Procedure Code, 1973 (2 of 1974) or any
other law for the time being in force, on granting of bail.
BAIL APPLN. 4016/2023 Page 6 of 6
- To sum up, the expression “reasonable grounds” used in
clause (b) of Sub-Section (1) of Section 37 would mean
credible, plausible and grounds for the Court to believe that
the accused person is not guilty of the alleged offence. For
arriving at any such conclusion, such facts and circumstances
must exist in a case that can persuade the Court to believe
that the accused person would not have committed such an
offence. Dove-tailed with the aforesaid satisfaction is an
additional consideration that the accused person is unlikely to
commit any offence while on bail…” - FSL report in this case concludes that the contraband
recovered from the applicant and co-accused Raveena was ganja.
The recovery in this case is of commercial quantity, and as noted
above, bar under Section 37 of NDPS Act will be attracted in this
case. Charges have already been framed, and material witnesses are
yet to be examined before the learned Trial Court. Considering the
aforesaid facts and circumstances, no ground for grant of bail is made
out. - Accordingly, the present bail application stands dismissed.
- Nothing expressed hereinabove shall tantamount to an
expression of opinion on the merits of the case. - The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
FEBRUARY 5, 2024/zp