[NDPS Act] Can Bail Be Granted In View Of Custody Period Without Satisfying Twin Conditions When Commercial Quantity Is Recovered? P&H HC Larger Bench To Decide
Taking note of the contradictory views of co-ordinate benches on applicability of Section 37(1)(b) of NDPS Act in bail matters where accused booked for possession of commercial quantity have been in custody for a long duration, a single bench of Punjab and Haryana High Court has referred the matter to the Chief Justice for constitution of a larger bench."In view of the difference of...
Taking note of the contradictory views of co-ordinate benches on applicability of Section 37(1)(b) of NDPS Act in bail matters where accused booked for possession of commercial quantity have been in custody for a long duration, a single bench of Punjab and Haryana High Court has referred the matter to the Chief Justice for constitution of a larger bench.
"In view of the difference of opinion referred to hereinabove, let this matter be placed before Hon'ble the Chief Justice for constituting a Larger Bench to settle the issue of fulfillment of the twin conditions prescribed in Section 37(1)(b) of the Act before grant of bail in a case of recovery of commercial quantity under the Act," Justice Sudhir Mittal said in an order.
The question arose before the court while hearing a third bail application of an accused in a case alleging recovery of 11 injections of Pheniramine Maleate (10 ml each) and 15 injections of Buprenorphine (2 ml each).
While the first bail application of the accused was rejected in October 2020 on the ground that he had been in custody for only three months and 19 days and that there were a large number of criminal cases pending against him, the second bail application was dismissed as he did not fulfil the conditions prescribed under Section 37 of the Act.
In the third application, his counsel argued that he had undergone custody of over 2 years, and must be released on bail without reference to the conditions laid down under Section 37(1)(b) of the Act.
He placed reliance on the decisions in Dheeren Kumar Jaina v. Union of India, SLP (Criminal) No. 4432 of 2021, Nitish Adhikary @ Bapan v. State of West Bengal, SLP (Criminal) No. 5769-2022 and high court decisions in Naveen v. State of Haryana, 2022 (1) RCR (Criminal) 553, Charanjit Singh @ Amritpal v. State of Punjab, CRM-M-13795-2022 and others
However, the prosecution contended that in cases of recovery of commercial quantity, the twin conditions laid down in Section 37(1)(b) of the Act must be complied with. It placed reliance on the decisions in the Union of India (NCB) Etc. v. Khalil Uddin, SLP (Criminal) Nos. 5505 & 5506 of 2022 and the high court decision in Satnam Singh v. State of Punjab, CRM-M-43795-2020.
Justice Mittal observed that there are two sets of decisions with contradictory opinions on applicability of Section 37(1)(b).
As far as the specific case of the petitioner was concerned, the court dismissed the petition in view of the conditions prescribed under Section 37(1)(b) of the Act and keeping in view the fact that the trial was nearing completion. The bench directed the trial court to complete the trial as expeditiously as possible
"It has been noted hereinabove that the second bail application of the petitioner had been rejected as he had not been able to show that the twin conditions placed by Section 37(1)(b) of the Act were fulfilled. No new evidence has been brought on record to take a different view and thus, the judgments relied upon by the petitioner do not help him. None of these judgments say that in a subsequent bail application, a different view can be taken, even if, there are no changed circumstances," the court.
Case Title: Samdarsh Kumar @ Joseph v. State of U.T. Chandigarh
Citation: CRM-M-21788-2022 (O&M)
Coram: Justice Sudhir Mittal
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