Punjab-Haryana High Court
Avtar Singh Alias Tari vs State Of Punjab on 3 October, 2024
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
Neutral Citation No:=2024:PHHC:131508
CRM-M No.41767 of 2024 (O&M)
225
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.41767 of 2024 (O&M)
Date of Decision: 03.10.2024
Avtar Singh @ Tari
......... Petitioner
Versus
State of Punjab
......... Respondent
CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU
Present:- Mr. Bhavesh Aggarwal, Advocate for the petitioner.
Mr. Mohit Kapoor, Sr. DAG, Punjab for the respondent.
****
MAHABIR SINGH SINDHU, J.
Second petition has been filed under Section 439 of the Code of
Criminal Procedure, 1973 for grant of bail pending trial to the petitioner in
FIR No.40 dated 15.05.2023, under Sections 22 & 25 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), registered at
Police Station Jodhan, District Ludhiana (Rural).
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(2) Allegations are that petitioner was found in possession of 300
loose intoxicant tablets containing Buprenorphine Hydrochloride salt without
any license or permit.
(3) Learned Counsel contends that petitioner is in custody since
15.05.2023; charges were framed on 16.10.2023 and out of total 11
prosecution witnesses, only 03 have been examined so far and 03 have been
given up. Further contends that trial is likely to take sufficient long time.
(4) Per contra, learned State Counsel on instructions opposed the
prayer while submitting that recovery alleged against the petitioner is
commercial in nature; thus, in view of the provisions of Section 37 of the
NDPS Act, there is a specific bar for granting bail in such matter.
(5) Heard learned Counsel for the parties and perused the paper-
book.
(6) Before proceeding further, it is relevant to extract 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–
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(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
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, which is in the nature of non-obstante clause
to Cr.P.C. including Section 439 thereof, 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 should be more than prima facie.
(9) Also necessary to mention here that 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:-
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“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) 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) Since the alleged recovery is commercial in nature; petitioner is
the sole accused; charges have already been framed against him under
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Sections 22 & 25 of the NDPS Act and prosecution evidence is going on;
therefore, this Court is not inclined to record the twin-test satisfaction in his
favour as per Section 37 (1)(b)(ii).
(11) In view of the above, there is no option except to dismiss the
petition “at this stage”.
(12) Ordered accordingly. (13) Needless to say that the observations made above shall not be
construed as an expression of opinion on merits of the controversy in any
manner.
Pending application(s), if any, shall also stand disposed off.
3rd October, 2024 ( MAHABIR SINGH SINDHU )
Gagan JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes
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