Read Judgment: Vikas Kumar vs. State of NCT of Delhi 

Pankaj Bajpai

New Delhi, March 21, 2022: Considering the large commercial quantity of contraband recovered from the premises which was under the possession of the Applicant, as well as the gravity of the allegations levelled against him, the Delhi High Court has held that before exercising its discretion for granting bail to the accused, the Court must record the reasonable grounds discernible from the facts and circumstances that the Applicant is not prima facie guilty of offences that the accused is charged with. 

Since the crime is an act against the society, the legislature has contemplated that the Public Prosecutor must be given an opportunity to oppose a Bail Application under the Act, the Single Judge Chandra Dhari Singh observed that u/s 37(b)(ii) of the NDPS Act, the Court is not required to be merely satisfied about the dual conditions i.e., prima facie opinion of the innocence of the accused and that the accused will not commit a similar offence while on bail, but the court must have “reasonable grounds‟ for such satisfaction.

The observation came pursuant to an application u/s 439 of CrPC for seeking regular bail in FIR registered u/s 15, 61 and 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) at Police Station Wazirabad, Delhi.

Going by the background of the case, Ct. Robin Malik along with Ct. Kamaljit and Ct. Naushad was on patrolling duty in Wazirabad, where they saw two persons carrying one blackish-grey plastic bag. The two individuals upon sighting the police party tried to escape but were intercepted by the police officials and asked to show the contents of the plastic katta. The katta was in a sealed condition which upon being torn was found to contain poppy husk. The accused were informed of their rights, and the recovered katta was found to weigh 25 kgs, samples were drawn, and the two accused from whose possession intermediate quantity of poppy husk was recovered were arrested. 

In the course of investigation, the two accused apprehended with the poppy husk, in custody, made disclosure naming the accused-applicant as the source of the contraband and divulged details of the godown situated at Village Jagatpur, Delhi where the poppy straw was stored by the supplier. In pursuance thereto one raiding team including the SHO, reached at the disclosed address, where 975.5 Kilograms of Poppy straw was seized filled into 39 plastic gunny bags of 25kgs each, samples were drawn and sent to FSL. After investigation of the case, Final Report was submitted. 

As per the statement of Chander Deep, Jyoti being the wife of Vikas had befriended his wife, and were living in the same locality for the past two years. Jyoti had asked his wife to stay in the premises in question on rent as her husband was in the masala business and needed some place to set up a grinding machine. Due to past acquaintance, he agreed, and the premises were let out. During the course of investigation, the accused Vikas Kumar, was declared proclaimed offender and subsequently, the applicant surrendered and was arrested. After investigation, supplementary charge sheet u/s 15/29 of the NDPS Act & Section 174A of the IPC was filed. Accordingly, the applicant preferred the bail application. 

After considering the submissions, Justice Singh found that in view of the gravity of the consequences of drug trafficking, the offences under the NDPS have been made cognizable and non-bailable. 

Section 37 of NDPS does not allow granting bail for offences punishable u/s 19 or Section 24 or Section 27A and for offences involving commercial quantity unless the twin conditions prescribed under the Section have been met, which include hearing the Public Prosecutor; and satisfaction of the Court based on reasonable grounds that the accused is not guilty of the offence and that he is likely to not commit an offence of a similar nature, added the Single Judge. 

Justice Singh noted that the Court also needs to be satisfied before grant of bail about the scheme of Section 439 of CrPC and thus, it is evident that section 37 limits the discretion of the court in matters of bail by placing certain additional factors over and above, what has been prescribed under the Code.

The offences prescribed under NDPS are not only a menace to a particular individual but to the entire society especially, the youth of the country and such offences have a cascading effect and are in vogue these days, thus destroying the capabilities and lives of a big chunk of the population and trend has been growing over the years added the Single Judge.

Therefore, the High Court observed that in order to prevent the devastating impact on the people of the nation, Parliament in its wisdom deemed it fit to introduce stringent conditions for grant of bail under the NDPS Act and the Court has to stay mindful of the legislative intent and mandate of the Act while granting bail in such matters. 

It was noted that mere absence of a written rent agreement was not enough to discharge the allegations against the applicant rather the factum of the possession of the said premises was sufficient to implicate the applicant in the instant case. This was a property from where, on inputs by the co-accused, a substantially large amount of contraband was received.

As far as the question of parity while granting bail with respect to other co-accused is concerned,the Bench was of the opinion that the two cannot be treated equally for the reason that there was a big difference in the quantum of the recovery made in their cases respectively – the contraband recovered from the premises shown to be in possession of the accused was commercial in nature and hence the rigours of Section 37 of the NDPS Act were attracted in his case.

Moreover, the Applicant was stated not to be cooperating with the investigation previously and given the fact that the public witnesses were yet to be examined in the case, the probability of the applicant trying to influence the witnesses could not be ruled out.

There was also, nothing on record before this Court to arrive even at a prima facie satisfaction that the applicant had not committed the said offence, nor was there any cogent reason to presume that the applicant was not likely to commit similar offence if released on bail. 

Thus, on the basis of the aforementioned grounds, the Court dismissed the bail application.

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