Mohan Singh v. State

1. Whether Reporters of local papers may be allowed to see the judgment? NO

2. To be referred to the Reporter or not ? NO

3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. (oral)

1. This a petition under section 439 CrPC for grant of regular bail in respect of FIR no. 149/2010, under section 18/25/29 of the NDPS Act, registered by PS Crime Branch, Rohini, Delhi in respect of which trial is pending in the court of Sh. V.K. Bansal, learned Special Judge, NDPS, Rohini Court, Delhi. 2011:DHC:4754

2. Briefly stated, the facts of the case are that on 10.11.2010 a secret information was received by SIT, Crime Branch that two persons namely Mohan Kumar i.e the Petitioner (He has given his name as Mohan Singh) & Ravinder Kumar who are resident of Bhiwani ( Haryana) are bringing opium from Nimich (MP) & supplying it in Delhi & Punjab. On the basis of the said information, these persons were apprehended from near Bhalaswa Chowk, Delhi in a Tata Indigo Car. Petitioner, Mohan Singh was driving the said car and on search of the vehicle 25kgs of opium was recovered which was concealed in an aluminum container kept in a katta. This katta was kept in between the legs of the coaccused Ravinder. As per the FSL report, the sample was confirmed as opium.

3. Learned counsel for the petitioner has submitted that the petitioner is in custody since 10.11.2010 and that too when he was only driving the said vehicle and no recovery has been made from his possession. Learned counsel has further stated that none of the mandatory provisions of NDPS Act have been complied with and provisions of section 50 of the NDPS Act have been clearly violated and therefore the petitioner deserves the concession of regular bail.

4. Learned APP has opposed the application of the petitioner for grant of bail. The learned APP has stated that section 50 of the NDPS Act has been duly complied with in as much as the petitioner and the co accused were informed about their legal right to get their search to be conducted by a Magistrarte or Gazetted officer and in this regard a notice under section 50 of the NDPS Act was served on them but they had declined the same and gave a written reply to the effect.

5. I have heard the learned counsel appearing for the respective parties and also perused the record.

6. At the outset it is pertinent to note that from the language of Section 37 of the NDPS Act it is clear that bail in cases of offences under NDPS Act should not be granted as a general rule unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of an offence under the Act and he is not likely to commit any offence while on bail. Section 37 of the NDPS Act Lays down as under:- “37. Offence 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-

(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 believisuch offence and that he is not likely to commit any offence 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. The Apex Court in N.C.B Vs Kishan Lal & Ors., AIR 1991 SC 558 has held that Section 37of NDPS Act Starts with a nonobstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The Narcotic Drugs & Psychotropic Substances Act is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of the offences relating to narcotic drugs and psycho-tropic substances. That being the underlying object the High Court's powers to grant bail under Section 439 Cr. PC is subject to the limitation mentioned under Section 37 of Narcotic Drugs & Psychotropic Substances Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.

8. So far as the contention of the learned counsel for the petitioner that section 50 of the NDPS Act has not been complied with, is concerned, I am of the view that notice was served on the petitioner under section 50 and he was made aware of his right, moreover at the stage of granting bail, this court cannot go into the merits of the case which has to be considered by the trial court in the trial. Further, the contention of the learned counsel for the petitioner that no public witness was associated is of no relevance at this stage when charges have been framed and five witnesses have been examined. This is a plea which goes into the merits of the case which the petitioner can urge at the time of the final disposal of the case.

9. It is also pertinent to note that petitioner had also made an application for grant of bail before the learned Additional Sessions Judge which was dismissed vide order dated 8.06.2011 after taking into consideration all the pleas which have been taken by the petitioner in this application.

10. Having regard to the fact that huge quantity of opium has been recovered from the petitioner, I am of the view that it is not a fit case for exercising the discretion of bail in favour of the petitioner and therefore the bail application of the petitioner is dismissed. Expression of any opinion herein before may not be treated as an expression on the merit of the case. V.K. SHALI, J. SEPTEMBER 15, 2011