In CRM-M-13213 of 2022 (O&M)-PUNJ HC- Power to grant bail u/s 439 CrPC is subject to conditions laid down in Section 37 of NDPS Act, which commences with non-obstante clause Justice Suvir Sehgal [06-06-2022]

Read Order: Harjeet Lal @ Laddu v. State of Punjab

Monika Rahar

Chandigarh, July 1, 2022: The Punjab and Haryana High Court has recently held that the power to grant bail under Section 439 of the Cr.P.C. is subject to the conditions laid down in Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), which commences with the non-obstante clause.

Further, Justice Suvir Sehgal added, “The Court is required to see as to whether there are any reasonable grounds to believe that the accused has not committed the offence and whether he is likely to commit any offence while on bail.”

The petitioner approached the Court with a petition under Section 439 of the Cr.P.C. seeking the grant of regular to him in an FIR registered under Section 22 of NDPS Act wherein Sections 22(c) and 29 of the NDPS Act, was added later on. 

On the basis of secret information received by the Police, a vehicle (being driven by the present petitioner) was intercepted and 35000 tablets of intoxicating substance were recovered from its rear seat. Balwant Singh alias Billu was the co-passenger in the vehicle. On the basis of the confessional statement of the said accused, who were arrested on the spot, Sanket Uppal and Vijay Kumar, were also apprehended.

Besides urging that the petitioner was falsely implicated in the FIR, the petitioner’s counsel argued that the provisions of Sections 42 and 50 of the NDPS Act were not complied with. By referring to the recovery memo, the counsel submitted that the entire search was tainted and that the patrolling party was traveling in a private vehicle and there was an infraction of the instructions issued by the Govt. 

Reliance in this respect was placed on orders passed by the Court, whereby, the co-accused was released on bail. It was his argument that the petitioner was ailing and by relying upon Echo-cardiography Report, it was contended that he had a poor heart condition.

Per contra, the State counsel submitted that the contraband recovered from the vehicle was found to be Tramadol Hydrochloride and its total weight was more than 14 kg. Thus, he argued that as the contraband fell within the category of commercial quantity, the petitioner could not be enlarged on bail in view of the bar under Section 37 of the NDPS Act. Further, the Counsel refuted the fact that there was any violation of the mandatory provisions or guidelines issued under the NDPS Act and submitted that due procedure was followed while conducting search, seizure and arrest. Also, the Counsel submitted that the charge sheet was presented and prosecution witnesses were being examined. 

On the aspect of the health condition of the petitioner, the Court called for a medical status report. The status report so submitted stated that the petitioner complained of chest pain in November 2021 and was referred to GGSMCH, Faridkot and was discharged therefrom. He again complained of headache, palpitation and restlessness and he was kept under observation. Upon instructions, the State counsel submitted that the petitioner was hale and hearty and was in the process of being discharged. 

Insofar as allegations against the petitioner were concerned, the Court observed that an exceptionally heavy recovery of contraband was made from the vehicle which he was driving, though it was not clear as to whether the petitioner was the owner of the vehicle. Further, the Court also observed that the petitioner did not give any explanation for the commercial quantity of contraband that was recovered from his possession and thus, the bar, as laid down under Section 37 of the NDPS Act, was clearly attracted. 

In light of the above observations, the Court opined that the power to grant bail under Section 439 of the Code is subject to the conditions laid down in Section 37 of the NDPS Act, which commences with the non-obstante clause. 

“The Court is required to see as to whether there are any reasonable grounds to believe that the accused has not committed the offence and whether he is likely to commit any offence while on bail”, the Court opined while also asserting that the Court was satisfied that these conditions were not satisfied. 

Also, the Court held that the arguments of the counsel for the petitioner regarding non-compliance with the procedure and instructions would remain the subject matter of trial. 

Thus, keeping in view the totality of the facts and circumstances, the huge quantity of prohibited substance recovered from the petitioner, stringent provision of Section 37 and presumption under Section 54 of the NDPS Act as well as the fact that the trial was progressing, the Court did not deem it fit to grant regular bail to the petitioner. 

Therefore, the petition was dismissed. The Court however expected that in case the petitioner required any medical aid, the same shall be provided to him.