Order 4

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
Bail Application No.69/2024
State v. Shahjada Hussain
12.03.2024
Present: Sh. Balbir Singh, Additional Public Prosecutor for
State.
None for accused-applicant.
This is an application under section 439 of the Code of
Criminal Procedure,1973 ('CrPC' in short) moved on behalf of
accused-applicant Shahjada Hussain for grant of bail in case FIR
No. 206/2023 registered at Police Station, Crime Branch under
Sections 15, 18, 25 & 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 ('NDPS Act' in short), which is fixed for
orders.
2. Sh. Kunal Goswami, Learned Counsel for accused
contended that accused has been falsely implicated in the present
case. Accused-applicant was recently engaged to load parcels as
coolie and used to do work of loading and unloading of goods
and therefore he was not aware about the contents of parcels. On
21.08.2023, the train arrived at Old Delhi Railway Station and as
per normal practice, the parcels / packaged goods were to be
released by other coolie and sent to delivery to the receiver.
Accused-applicant has no connection with the recovered
contraband in any way. It is further argued that notice was not
given to the accused-applicant by the police prior to his arrest
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 1
-- 1 of 8 --
and in this regard learned counsel has relied upon decision
passed in case of Arnesh Kumar v. State of Bihar & Anr.
(2014) 8 SCC 273.
3. Sh. Balbir Singh, Learned Additional Public Prosecutor
has opposed the bail application on the ground that case pertains
to recovery of commercial quantity of contraband from the three
co-accused. During investigation it is revealed that the parcel
was booked by the accused-applicant from Tata Nagar, Jharkhand
which was received in Delhi by co-accused persons, where in
contraband Opium Doda post of commercial quantity. The
Railway parcel way bill was found in the phone of accused
Pappu Kumar, which was found correct and was found to be sent
by accused-applicant from Tata Nagar to Delhi. Accused-
applicant is connected with calls with co-accused persons.
4. There are allegations of committing offences under section
15, 18, 25 and 29 of the NDPS Act involving commercial
quantity. Section 37 of the NDPS Act which regulates the grant
of bail in cases involving offences under the NDPS Act, reads as
under:
"37. 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 2 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,
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 2
-- 2 of 8 --
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
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."
5. Section 37 of the NDPS Act regulates the grant of bail in
cases involving offences under the NDPS Act. The twin
conditions specified in clause (b) of sub-section (1) of section 37
of the NDPS Act are required to be satisfied for granting bail in
case involving commercial quantity and cases punishable under
sections 19, 24 27A. The twin conditions are that if the Public
Prosecutor opposes the application, the Court may not grant bail
to accused unless it 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.
6. Further, the limitations on granting of bail specified in said
clause (b) of sub-section (1) of section 37 of the NDPS Act are in
addition to the limitations under the CrPC.
7. In respect of twin conditions/limitations as enumerated in
section 37 of the NDPS Act, the limitations imposed under
section 439 of the CrPC and expression “reasonable grounds”,
the three-Judge Bench of Hon'ble supreme Court on 19.07.2022,
in case of Narcotics Control Bureau v. Mohit Aggarwal, 2022
Live Law (SC) 613 held as under:
11. It is evident from a plain reading of the non-obstante clause
inserted in sub-section (1) and the conditions imposed in sub-
section (2) of Section 37 that there are certain restrictions placed
on the power of the Court when granting bail to a person
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 3
-- 3 of 8 --
accused of having committed an offence under the NDPS Act.
Not only are the limitations imposed under Section 439 of the
Code of Criminal Procedure, 1973 to be kept in mind, the
restrictions placed under clause (b) of sub-section (1) of Section
37 are also to be factored in. The conditions imposed in
subsection (1) of Section 37 is that (i) the Public Prosecutor
ought to be given an opportunity to oppose the application
moved by an accused person for release and (ii) if such an
application is opposed, then the Court must be satisfied that
there are reasonable grounds for believing that the person
accused is not guilty of such an offence. Additionally, the Court
must be satisfied that the accused person is unlikely to commit
any offence while on bail.
12. The expression “reasonable grounds” has come up for
discussion in several rulings of this Court. In “Collector of
Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC
549”, a decision rendered by a Three Judges Bench of this
Court, it has been held thus :-
“7. The limitations on granting of bail come in only when
the question of granting bail arises on merits. Apart from
the grant of opportunity to the Public Prosecutor, the other
twin conditions which really have relevance so far as the
present accused-respondent is concerned, are: the
satisfaction of the court that there are reasonable grounds
for believing that the accused is not guilty of the alleged
offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not
alternative. The satisfaction contemplated regarding the
accused being not guilty has to be based on reasonable
grounds. 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.”
[emphasis added]
13. The expression “reasonable ground” came up for
discussion in “State of Kerala and others Vs. Rajesh and others,
(2020) 12 SCC 122” and this Court has observed as below:
“20. 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
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 4
-- 4 of 8 --
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 that 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 is indeed uncalled for.”
[emphasis added]
14. 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.
15. We may clarify that at the stage of examining an application
for bail in the context of the Section 37 of the Act, the Court is
not required to record a finding that the accused person is not
guilty. The Court is also not expected to weigh the evidence for
arriving at a finding as to whether the accused has committed an
offence under the NDPS Act or not. The entire exercise that the
Court is expected to undertake at this stage is for the limited
purpose of releasing him on bail. Thus, the focus is on the
availability of reasonable grounds for believing that the accused
is not guilty of the offences that he has been charged with and he
is unlikely to commit an offence under the Act while on bail.”
(some emphasis added)
8. Himachal Pradesh High Court in case of Satish Singh v.
State of Himachal Pradesh, Cr.MP(M) No. 299 of 2020 decided
on 29th June, 2020 summarized the law relating to rigors of
section 37 of the NDPS Act:
“21. From the summary of the law relating to rigors of S.37 of
NDPS Act, while granting bail involving commercial quantities
in the NDPS Act, the following fundamental principles emerge:
a) The limitations on granting of bail come in only when the
question of granting bail arises on merits. [Customs, New Delhi
v. Ahmadalieva Nodira, (2004) 3 SCC 549].
b) In case the Court proposes to grant bail, two conditions are to
be mandatorily satisfied in addition to the standard requirements
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 5
-- 5 of 8 --
under the provisions of the CrPC or any other enactment. [Union
of India v. Niyazuddin & Anr, (2018) 13 SCC 738].
c) Apart from the grant opportunity to the Public Prosecutor,
the other twin conditions which really have relevance are the
Court's satisfaction that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721].
d) The satisfaction contemplated regarding the accused being
not guilty has to be more than prima facie grounds, considering
substantial probable causes for believing and justifying that the
accused is not guilty of the alleged offence. [Customs, New
Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].
e) Twin conditions of S. 37 are cumulative and not alternative.
[Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC
549].
f) If the statements of the prosecution witnesses are believed,
then they would not result in a conviction. [ Babua v. State of
Orissa, (2001) 2 SCC 566].
g) At this stage, it is neither necessary nor desirable to weigh the
evidence meticulously to arrive at a positive finding as to
whether or not the accused has committed an offence under the
NDPS Act and further that he is not likely to commit an offence
under the said Act while on bail. [Union of India v. Rattan Mallik
@ Habul, (2009) 2 SCC 624].
h) While considering the application for bail concerning
Section 37, the Court is not called upon to record a finding of not
guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC
798].
i) In case of inconsistency, S. 37 of the NDPS Act prevails over
S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1)
SCC 705].
j) Bail must be subject to stringent conditions. [Sujit Tiwari v.
State of Gujarat, 2020 SCC Online SC 84].”
9. Hence, the accused has to satisfy this Court the twin
conditions on the basis of reasonable grounds that firstly, he is
not guilty of the alleged offence and secondly, that he is not
likely to commit any offence while on bail. The said conditions
are cumulative and not alternative and therefore, said both the
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 6
-- 6 of 8 --
conditions are to be satisfied as held three-Judge Bench of the
Hon'ble Supreme Court in cases of Mohit Aggarwal (supra) and
Collector of Customs, New Delhi (supra). In the present case
learned Additional Public Prosecutor has opposed the application
for bail of the applicant and therefore, for grant of bail, this Court
has to be satisfied that there are reasonable grounds for believing
that applicant is not guilty of such offence and that he is not
likely to commit any offence while on bail.
10. Case of the prosecution is that on 22.08.2023, acting upon
secret information, co-accused Pappu Kumar, Chand and Sonu
were apprehended and from their possession total 160.800 kgs of
Opium Doda was recovered. Railway Parcel Way Bill / Luggage
Ticket was found in the phone of co-accused Pappu Kumar,
which was sent by accused-applicant Shahjada Hussain on
20.08.2023 from Tata Nagar to Delhi.
11. Case pertains to recovery of commercial quantity of
contraband and rigors of section 37 of the NDPS Act are
attracted in the present case. The accused has to satisfy the twin
conditions 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.
As per prosecution story, the accused-applicant Shahjada
Hussain has booked the parcel of the contraband from Tata Nagar
to Delhi and said booking has been verified from Chief Parcel
Supervisor, South Eastern Railway. The said parcel was received
by co-accused Pappu Kumar. The Railway Parcel Way Bill was
found in the phone of co-accused Pappu Kumar. In the said
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 7
-- 7 of 8 --
parcels, total 160.800 kgs Opuim Doda was found to be
contained and same were recovered from three co-accused when
they were travelling in two tempos. As per CDR of the accused
persons, accused-applicant was in contact with co-accused Pappu
Kumar, who received the parcels sent by him.
12. In view of above discussion, the narrow parameters of bail
available under section 37 of the NDPS Act, have not been
satisfied in the facts of the instant case. At this stage, it is not
safe to conclude that the applicant has successfully demonstrated
that there are reasonable grounds to believe that he is not guilty
of the offence alleged against him. Hence, I refuse to grant bail
to applicant-accused Shahjada Hussain and consequently, his bail
application is rejected.
13. Copy of order be given dasti to learned counsel for
accused-applicant and be communicated to accused-applicant in
Jail also through Jail Superintendent.
(Sanjeev Kumar-II)
Special Judge (NDPS)-02
Central District, Tis Hazari Courts,
Delhi / 12.03.2024
B.A.No.69/2024 FIR No.206/2023 PS Crime Branch State v. Shahjada Hussain 8
-- 8 of 8 --