Power To Grant Regular Bail U/S 439 CrPC Is Subject To Conditions Laid Down In S.37 NDPS Act: Punjab & Haryana High Court Reiterates

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 non-obstante clause.

Section 37 of NDPS Act stipulates that every offence punishable under the Act shall be cognizable and no person accused of 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 believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

The bench comprising Justice Suvir Sehgal further added that the Court needs to see whether there are reasonable grounds to believe that the offence has not been committed by the accused and whether he is likely to commit any offence while he will be on bail.

The accused herein was arrested following recovery of 35,000 tablets of intoxicating substance from the vehicle being driven by him.

Besides urging that the petitioner has been falsely implicated in the FIR, counsel for the petitioner has argued that there is violation in compliance of Sections 42 and 50 of the NDPS Act. By referring to the recovery memo, counsel submitted that it carries the details of the FIR, which shows that the entire search is tainted. It has also been contended that the patrolling party was travelling in a private vehicle and there is an infraction of the instructions issued by the Govt.

The State on the other hand argued that as the contraband falls within the category of commercial quantity, the petitioner cannot be enlarged on bail in view of the bar under Section 37 of the NDPS Act.

After placing reliance on the judgement of the Supreme Court in the case of Union of India through NCB, Lucknow Vs. Md. Nawaz Khan (2021) 10 SCC 100, the court held that the arguments of the counsel for the petitioner regarding non-compliance of the procedure and instructions will be a subject matter of trial.

Insofar as allegations against the petitioner are concerned, the court held that no explanation has been provided by the petitioner for the commercial quantity of contraband that has been recovered from his possession. Therefore, bar which is laid down under Section 37 of the NDPS Act is attracted in the instant case.

As far as the power to grant bail under Section 439 CrPC is concerned, the court observed that this power is subject to the conditions laid down in Section 37 of the NDPS Act, which commences with a non-obstante clause.

Admittedly, the co-accused were arraigned based on confessional statement of the petitioner along with the confessional statement of co-accused, Balwant. Further, no recovery was effected from them. Therefore, the orders passed by the Court in co-accused's case will not advance petitioner's case.

Keeping in view the facts and circumstances of the instant case, the huge quantity of contraband 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 is progressing, the court did not deem it fit to grant regular bail to the petitioner.

Consequently, the court dismissed the instant petition.