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AFR

Reserved on 13.05.2022

Delivered on 30.05.2022

Court No. - 80

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45253 of

2021

Applicant :- Dheeraj Kumar Shukla

Opposite Party :- State of U.P.

Counsel for Applicant :- Chandra Shekhar Mishra

Counsel for Opposite Party :- G.A.

Hon'ble Sanjay Kumar Singh,J.

1- This is second bail application moved on behalf of the

applicant. The first bail application of the applicant has

been rejected by detailed order dated 06.07.2021 passed

in Criminal Misc. Bail Application No. 42092 of 2020.

2- By means of this second bail application, the applicant-

Dheeraj Kumar Shukla, who is involved in Case Crime No.

0325 of 2020, under Sections 8/20 of Narcotic Drugs &

Psychotropic Substances Act (hereinafter referred to as

“N.D.P.S. Act”), police station Jhunsi, district Prayagraj, is

seeking enlargement on bail during the pendency of trial.

3- Heard Mr. Chandra Shekhar Mishra, learned counsel for

the applicant, Mr. Virendra Kumar Maurya, learned

Additional Government Advocate assisted by Mr. Prashant

Kumar Singh, learned Brief holder appearing on behalf of

State of U.P. and perused the record.

4- In short compass, the facts of the case as per

prosecution case are that on the information of informer,

two vehicles white coloured Swift Dzire car and grey

coloured Honda City car were intercepted on 23.06.2020

by the police team using necessary force and persons

sitting in the vehicles were pulled out. On questioning,

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they disclosed about transportation of illegal Ganja in the

said vehicles. On interrogation at the spot, the

apprehended accused persons, who were sitting in Honda

City car, disclosed their names as Praveen Maurya alias

Punit Maurya (owner), Rishabh Kumar (Driver) and Dhiraj

Maurya, whereas person, who was driving Swift Dzire car

disclosed his name as Dheeraj Kumar Shukla (applicant).

The accused were enlightened about their legal rights to

be searched before a Gazetted Officer, to which they

declined and gave their consent saying that informant may

take their search. Accordingly, they were searched, but no

contraband was recovered from their personal search,

except mobile phones and some cash amount etc. as

mentioned in the recovery memo. On taking search of

aforesaid vehicles, total 92.410 Kgs. of Ganja were

recovered from the dicky of Honda City car bearing No. MH

04 AF 0076 and 65.160 Kgs. of Ganja were recovered from

the dicky of Swift Dzire car bearing No. UP 70 EW 0246. As

such, total 157.570 Kgs of illegal Ganja have been

recovered in this case. Accused persons could not show

the authorization for keeping and transporting the same.

Separate samples of about 100-100 grams each of Ganja

were taken out from each packets, thereafter samples and

remaining Ganja as well as other recovered materials were

separately sealed in white cloths. Specimens of seal were

prepared. Accused persons disclosed that they have been

engaged in the trafficking of Ganja since last several

years. They also disclosed that they purchased the Ganja

from one Hari, resident of Kodpad, Odisha and will sell the

same on higher price in Prayagraj. Both the aforesaid

vehicles were also seized. Contents of recovery memo

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were explained to the accused persons and after taking

their signatures, copy of recovery memo was handed over

to them. On the basis of aforesaid recovery, a case was

registered against the accused persons at Case Crime No.

0325 of 2020, under section 8/20 of N.D.P.S. Act, police

station Jhunsi, district Prayagraj.

5- It is submitted by learned counsel for the applicant that

instant second bail application has been moved mainly on

the following two new grounds:-

(i)- After rejection of first bail application of the applicant

on 06.07.2020, co-accused Sonoo Shukla and Praveen

Maurya @ Puneet Maurya have been granted bail by the

Coordinate Bench of this Court vide orders dated

14.07.2021 and 14.09.2021 in Criminal Misc. Bail

Application Nos. 20323 of 2021 and 44698 of 2020

respectively, therefore, the applicant is also entitled to be

released on bail on the ground of parity.

(ii)- Applicant is in jail but trial is not proceeding effectively.

6- Per-contra, learned Additional Government Advocate

vehemently opposed the prayer for bail of the applicant by

contending that:-

(i)- commercial quantity of Ganja is 20 Kg, whereas in this

case total 157.570 Kgs. of illegal Ganja have been

recovered (92.410 Kgs. of Ganja was recovered from the

dicky of Honda City car bearing No. MH 04 AF 0076 and

65.160 Kgs. of Ganja from the dicky of Swift Dzire car

bearing No. UP 70 EW 0246), which are much more than

commercial quantity, therefore, provisions of Section 37 of

the N.D.P.S. Act are attracted in the present case.

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(ii)- co-accused Sonoo Shukla and Praveen Maurya @

Puneet Maurya have been granted bail by the Coordinate

Bench vide orders dated 14.07.2021 and 14.09.2021

respectively without considering the mandatory provisions

of Section 37 of the N.D.P.S. Act and material on record

available in the case diary as well as without giving any

reason, therefore, benefit of parity of such bail orders

cannot be given to the present applicant.

(iii)- the bail has been obtained by misrepresentation of

facts and law. It is submitted that in this case, total

157.570 Kgs ‘Ganja’ was recovered from the dicky of the

vehicles in question, therefore, provisions of Section 50 of

N.D.P.S. Act is not attracted at all in view of the recent

judgments of the Apex Court in the cases of Varinder

Kumar Vs. State of Himachal Pradesh, (2020) 3 SCC

321, Kallu Khan Vs. State of Rajasthan, 2021 SCC

OnLine SC 1223 and Dayalu Kashyap Vs. State of

Chattisgarh, 2022 SCC OnLine SC 334 .

(iv)- Mr. Maurya, learned A.G.A. has also placed reliance

upon following judgments of the Apex Court as well as of

this Court:-

(a). In Chandigarh Administration and another Vs.

Jagjit Singh and another, AIR 1995 SC 705, the Apex

Court in paragraph-8 has held as follows:

"....... if the order in favour of the other person is

found to be contrary to law or not warranted in

the facts and circumstances of his case, it is

obvious that such illegal and unwarranted order

cannot be made the basis of issuing a writ

compelling the respondent-authority to repeat the

illegality or to pass another unwarranted order."

"...... The illegal/unwarranted action must be

corrected, if it can be done according to law-

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indeed, wherever it is possible, the Court should

direct the appropriate authority to correct such

wrong orders in accordance with law-but even if it

cannot be corrected, it is difficult to see how it can

be made a basis for its repetition.

"..... Giving effect to such pleas would be

prejudicial to the interests of law and will do

incalculable mischief to 5 public interest. It will be

a negation of law and the rule of law."

(b). In Special Leave Petition No. 4059 of 2000:

Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux

Singh and another, decided on 12.3.2001, the Hon'ble

Apex Court strongly denounced the order of the High Court

granting bail to the co-accused on the ground of parity in a

heinous offence and while cancelling the bail granted by

the High Court it observed that:-

"The High Court on being moved, has considered

the application for bail and without bearing in

mind the relevant materials on record as well as

the gravity of offence released the accused-

respondents on bail, since the co-accused, who

had been ascribed similar role, had been granted

bail earlier."

(c). In the case of Satyendra Singh Vs. State of U.P.,

1996 A.Cr.R. 867, the following observations have been

made by this Court :

Para 16: “The orders granting, refusing or

cancelling bail are orders of interlocutory nature. It

is true that discretion in passing interim orders

should be exercised judicially but rule of parity is

not applicable in all the cases, where one or more

accused have been granted bail or similar role has

been assigned inasmuch as bail is granted on the

totality of facts and circumstances of a case.

Parity can not be a sole ground and is one of the

grounds for consideration of the question of bail.”

7- Having heard the learned counsel for the parties, I find

that the issue that arises for consideration before this

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Court is “ as to whether the applicant is entitled to be

released on bail only on the ground of parity of bail orders

dated 14.07.2021 and 14.09.2021 of co-accused Sonoo

Shukla and Praveen Maurya @ Puneet Maurya, which have

been passed by the Coordinate Bench without considering

the mandatory provisions of Section 37 of the N.D.P.S. Act

and without giving reasons.”

8- Relevant part of the aforesaid bail order dated

14.07.2021 of co-accused Sonoo Shukla passed by the

Coordinate Bench is being reproduced herein below:-

“Heard learned counsel for the applicant, learned

A.G.A for the State and perused the record.

It has been argued by learned counsel for the

applicant that applicant is innocent and he has

been falsely implicated in the present case. It is

alleged that 157.570 of Ganja was alleged to be

recovered from the vehicle Swift Desire Car No.

UP-70-EW-0246, which is registered in the name of

accused-applicant. It is further contended that the

alleged recovery was not made from the accused-

applicant and he was implicated in this case on

the ground that he is registered owner of the

aforesaid Swift Desire Car. It is further contended

that the recovery was made from Dheeraj Kumar

Shukla, who is the brother of present accused-

applicant from aforesaid Swift Desire Car. It is

contended that on arrest of co-accused - Dheeraj

Kumar Shukla, he stated that this car belongs to

him. His father has purchased in the name of

present accused-applicant for use of co-accused

Dheeraj. It is further contended that Swift Desire

Car No. UP-70-EW-0246 has been released in

favour of the accused-applicant by the Court of

learned Additional District & Sessions Judge Court

No. 10, Allahabad on 15.10.2020. It is further

contended that the alleged vehicle was used for

transporting of alleged contraband without his

knowledge of his brother or without his consent.

Learned A.G.A. has opposed the prayer for bail,

but he could not dispute the aforesaid facts and

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submitted that the alleged recovery was not made

from the accused-applicant. He has not disputed

the above facts that the alleged vehicle was not

released in favour of the accused applicant.

Considering the entire facts and circumstances of

the case, submissions of learned counsel for the

parties, nature of evidence and all attending facts

and circumstances of the case, without expressing

any opinion on merits of the case, the Court is of

the view that the applicant has made out a case

for bail. The bail application is allowed.”

9- Relevant part of bail order dated 14.09.2021 of co-

accused Praveen Maurya @ Puneet Maurya passed by the

Coordinate Bench is being also reproduced herein below:-

“Heard learned counsel for the applicant, learned

AGA, appearing for the State and perused the

material brought on record.

It has been contended by the learned counsel for

the applicant that 92.410 kilograms contraband

article, i.e. Ganja, is said to have been recovered

from the vehicle in which the applicant and one

co-accused were sitting along with the driver. He

further submits that there is no compliance of

mandatory provisions of Section 50 N.D.P.S. Act,

hence the recovery is bad in the eyes of law. It has

also been submitted that the applicant is

languishing in jail since 24.06.2020. The applicant

has no other reported criminal antecedent.

Learned A.G.A. has vehemently opposed the

prayer.

Courts have taken notice of the overcrowding of

jails during the current pandemic situation (Ref.:

Suo Motu Writ Petition (C) No. 1/2020, Contagion

of COVID 19 Virus in prisons before the Supreme

Court of India). These circumstances shall also be

factored in while considering bail applications on

behalf of accused persons.

Having heard the submissions of learned counsel

of both sides, nature of accusation and the

severity of punishment in case of conviction and

the nature of supporting evidence, prima facie

satisfaction of the Court in support of the charge,

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reformative theory of punishment, and larger

mandate of the Article 21 of the Constitution of

India, the dictum of Apex Court in the case of

Dataram Singh v. State of U.P. and another,

reported in (2018) 2 SCC 22 and without

expressing any opinion on the merit of the case, I

find it to be a case of bail.”

10- Before delving into the matter, it is apposite to quote

the Section 37 of N.D.P.S. Act, which are as follows:-

"37. Offences 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 believing that he is not

guilty of such offence and that he is not likely to

commit any offence while 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."

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11- On several occasions, the Apex Court has considered

the issue relating to provisions of Section 37 of the N.D.P.S.

Act and after wholesome treatment laid down guidelines in

this regard observing inter alia that recording of finding in

terms of Section 37 of N.D.P.S. Act is a sine qua non for

granting bail under N.D.P.S. Act. Reference of some of the

relevant decisions are as follow:-

(i). The expression 'reasonable grounds' has not been

defined in the N.D.P.S. Act, but the Apex Court in the case

of Union of India Vs. Rattan Mallik @ Habul, 2009 (1)

SCC (Crl) 831, has settled the expression "reasonable

grounds". Relevant paragraphs no. 12, 13 and 14 are

quoted herein below:

"12. It is plain from a bare reading of the non-

obstante clause in the Section and sub-section (2)

thereof that the power to grant bail to a person

accused of having committed offence under the

NDPS Act is not only subject to the limitations

imposed under Section 439 of the Code of

Criminal Procedure, 1973, it is also subject to the

restrictions placed by sub-clause (b) of subsection

(1) of Section 37 of the NDPS Act. Apart from

giving an opportunity to the Public Prosecutor to

oppose the application for such release, the other

twin conditions viz; (i) the satisfaction of the Court

that there are reasonable grounds for believing

that the accused is not guilty of the alleged

offence; and (ii) that he is not likely to commit any

offence while on bail, have to be satisfied. It is

manifest that the conditions are cumulative and

not alternative. The satisfaction contemplated

regarding the accused being not guilty, has to be

based on "reasonable grounds".

13. The expression `reasonable grounds' has not

been defined in the said Act but means something

more than prima facie grounds. It connotes

substantial probable causes for believing that the

accused is not guilty of the offence he is charged

with. The reasonable belief contemplated in turn

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points to existence of such facts and

circumstances as are sufficient in themselves to

justify satisfaction that the accused is not guilty of

the alleged offence. [Vide Union of India Vs. Shiv

Shanker Kesari, (2007) 7 SCC 798] Thus, recording

of satisfaction on both the aspects, noted above,

is sine qua non for granting of bail under the NDPS

Act.

14. We may, however, hasten to add that while

considering an application for bail with reference

to Section 37 of the NDPS Act, the Court is not

called upon to record a finding of 'not guilty'. At

this stage, it is neither necessary nor desirable to

weigh the evidence meticulously to arrive at a

positive finding as to whether or not the accused

has committed offence under the NDPS Act. What

is to be seen is whether there is reasonable

ground for believing that the accused is not guilty

of the offence(s) he is charged with and further

that he is not likely to commit an offence under

the said Act while on bail. The satisfaction of the

Court about the existence of the said twin

conditions is for a limited purpose and is confined

to the question of releasing the accused on bail."

(ii). In case of Union of India Vs. Ram Samujh, (1999)

9 SCC 429, Apex Court has made following observations

in paragraph 7 of the said judgment, which are reproduced

herein below:-

"7. It is to be borne in mind that the aforesaid

legislative mandate is required to be adhered and

followed. It should be borne in mind that in murder

case, accused commits murder of one or two

persons, while those persons who are dealing in

narcotic drugs are instruments in causing death or

in inflicting death blow to number of innocent

young victims, who are vulnerable: it causes

deleterious effects and deadly impact on the

society; they are a hazard to the society; even if

they are released temporarily, in all probability,

they would continue their nefarious activities of

trafficking and/or dealing in intoxicants

clandestinely. Reason may be large stake and

illegal profit involved. This Court, dealing with the

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contention with regard to punishment under NDPS

Act, has succinctly observed about the adverse

effect of such activities in Durand Didien v. Chief

Secretary. Union Territory of Goa. [1990] 1 SCC 95

as under:

"24. With deep concern, we may point out

that the organised activities of the

underworld and the clandestine smuggling

of narcotic drugs and psychotropic

substances into this country and illegal

trafficking in such drugs and substances

have led to drug addiction among a

sizeable section of the public, particularly

the adolescents and students of both sexes

and the menace has assumed serious and

alarming proportion in the recent years.

Therefore, in order to effectively control

and eradicate this proliferating and

booming devastating menace, causing

deleterious effects and deadly impact on

the society as a whole, the Parliament in

the wisdom has made effective provisions

by introducing this Act 81 of 1985

specifying mandatory minimum

imprisonment and fine."

(iii). In Union of India Vs. Shiv Shankar Kesari, (2007)

7 SCC 798, Apex Court elaborated and explained the

conditions for granting of bail as provided under Section 37

of the Act. Relevant paragraph Nos. 6 and 7 are extracted

here in below :-

"6. As the provision itself provides no person shall

be granted bail unless the two conditions are

satisfied. They are; the satisfaction of the Court

that there are reasonable grounds for believing

that the accused is not guilty and that he is not

likely to commit any offence while on bail. Both

the conditions have to be satisfied. If either of

these two conditions is not satisfied, the bar

operates and the accused cannot be released on

bail.

7. The expression used in Section 37 (1)(b) (ii) is

"reasonable grounds". The expression means

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something more than prima facie grounds. It

connotes substantial probable causes for believing

that the accused is not guilty of the offence

charged and this reasonable belief contemplated

in turn points to existence of such facts and

circumstances as are sufficient in themselves to

justify recording of satisfaction that the accused is

not guilty of the offence charged."

(iv). In State of Kerala Etc. Vs. Rajesh Etc. AIR 2020

Supreme Court 721 , Apex Court again considered the

scope of Section 37 of N.D.P.S. Act and relying upon earlier

decision in Ram Samujh (Supra) held as under:

“20. The scheme of Section 37 reveals that the

exercise of power to grant bail is not only subject

to the limitations contained under Section 439 of

the CrPC, but is also subject to the limitation

placed by Section 37 which commences with non-

obstante clause. The operative part of the said

section is in the negative form prescribing the

enlargement of bail to any person accused of

commission of an offence under the Act, unless

twin conditions are satisfied. The first condition is

that the prosecution must be given an opportunity

to oppose the application; and the second, is that

the Court must be satisfied that there are

reasonable grounds for believing that he is not

guilty of such offence. If either of these two

conditions is not satisfied, the ban for granting

bail operates.

21. The expression "reasonable grounds" means

something more than prima facie grounds. It

contemplates substantial probable causes for

believing that the accused is not guilty of the

alleged offence. The reasonable belief

contemplated in the provision requires existence

of such facts and circumstances as are sufficient

in themselves to justify satisfaction that the

accused is not guilty of the alleged offence. In the

case on hand, the High Court seems to have

completely overlooked the underlying object of

Section 37 that in addition to the limitations

provided under the CrPC, or any other law for the

time being in force, regulating the grant of bail, its

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liberal approach in the matter of bail under the

NDPS Act is indeed uncalled for."

(v). The Apex Court in Union of India vs Prateek Shukla

(Crl.A. No. 284/2021), AIR 2021 SC 1509 has held that

merely recording the submissions of the parties does not

amount to an indication of a judicial or, for that matter, a

judicious application of mind. The provisions of Section 37

of the N.D.P.S. Act provide the legal norms which have to

be applied in determining whether a case for grant of bail

has been made out. The relevant paragraph nos. 11 of the

said judgment are reproduced herein under :

“11. Ex facie, there has been no application of

mind by the High Court to the rival submissions

and, particularly, to the seriousness of the

allegations involving an offence punishable under

the provisions of the NDPS Act. Merely recording

the submissions of the parties does not amount to

an indication of a judicial or, for that matter, a

judicious application of mind by the Single Judge

of the High Court to the basic question as to

whether bail should be granted. The provisions of

Section 37 of the NDPS Act provide the legal

norms which have to be applied in determining

whether a case for grant of bail has been made

out. There has been a serious infraction by the

High Court of its duty to apply the law........”

NOTE:- Here it is also relevant to mention that in the case

of Prateek Shukla (supra), Review Petition (Crl.) No.323 of

2021 was filed but the same was rejected by the Apex

Court vide order dated 17.08.2021.

(vi). The Apex Court in the matter of The State (NCT of

Delhi) Narcotics Control Bureau Vs. Lokesh Chadha,

(2021) 5 SCC 724 has held that :

“…...Section 37 of the NDPS Act stipulates that no

person accused of an offence punishable for the

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offences under section 19 or section 24 or section

27A and also for offences involving commercial

quantity shall be released on bail, where the

Public Prosecutor oppose the application, unless

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.”

(vii). Narcotics Control Bureau Vs. Laxman Prasad

Soni, Etc. (Criminal Appeal Nos. 438-440 of 2021

decided by the Apex Court on 19.04.2021).

In the said case, there was recovery of 229 Kgs. of

Ganja from the possession of accused persons. Out of

which 25 Kgs. of Ganja was recovered from one vehicle

occupied by the accused. There was another vehicle

namely truck in which rest of the contraband material was

found. The accused persons, who were arrested along with

25 Kgs. Ganja have been granted bail by the co-ordinate

Bench of this Court vide order dated 23.09.2019 in

Criminal Misc. Bail Application Nos. 38036 of 2019, 38066

of 2019 and 38048 of 2019 without considering provisions

of Section 37 of the N.D.P.S. Act.

The aforesaid order dated 23.09.2019 has been set-

aside by the Apex Court on account of the reason that the

applications for bail were allowed by the High Court

without considering the import and effect of Section 37 of

the N.D.P.S. Act.

(viii). The Apex Court in Union of India v. Vimla Singh,

decided on 19.08.2021 in Criminal Appeal No. 862 of 2021,

has set-aside the bail order passed by High Court to four

accused on the ground that High Court has not taken into

account the effect and rigour of Section 37 of the N.D.P.S.

Act.

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(ix). The Apex Court in the case of Union of India

through Narcotics Control Bureau, Lucknow vs. Md.

Nawaz Khan, (2021) 10 SCC 100 has held that:-

“23.....the test which the High Court and this Court

are required to apply while granting bail is also

for offences involving commercial quantity shall

be released on bail, where there are reasonable

grounds for believing that he is not committed an

offence and whether he is likely to commit any

offence while on bail. Given the seriousness of

offences punishable under the NDPS Act and in

order to curb the menance of drug-trafficking in

the country, stringent parameters for grant of bail

under the NDPS Act have been prescribed.”

12- The Apex Court in several cases deprecated the

practice of passing bail orders without giving reasons. In

order to deal the issue involved in the case in hand, it

would be useful to refer following judgments of the Apex

Court.

(i). The Apex Court in Kalyan Chandra Sarkar v. Rajesh

Ranjan @ Pappu Yadav and another, (2004) 7 SCC

528 has held that:-

“….although it is established that a court

considering a bail application cannot undertake a

detailed examination of evidence and an

elaborate discussion on the merits of the case, the

court is required to indicate the prima facie

reasons justifying the grant of bail.”

(ii). The Apex Court in the case of Sonu vs Sonu Yadav

and another, 2021 SCC OnLine SC 286 has observed

that an order without reasons is fundamentally contrary to

the norms which guide the judicial process. The

administration of criminal justice by the High Court cannot

be reduced to a mantra containing a recitation of general

observations. That there has been a judicious application

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of mind by the judge who is deciding an application under

Section 439 of the CrPC must emerge from the quality of

the reasoning which is embodied in the order granting bail.

The relevant paragraph nos. 11 and 12 of the said

judgments are reproduced herein under:-

“11. In the earlier part of this judgment, we have

extracted the lone sentence in the order of the

High Court which is intended to display some

semblance of reasoning for justifying the grant of

bail. The sentence which we have extracted

earlier contains an omnibus amalgam of (i) “the

entire facts and circumstances of the case”; (ii)

“submissions of learned Counsel for the parties”;

(iii) “the nature of offence”; (iv) “evidence”; and

(v) “complicity of accused”. This is followed by an

observation that the “applicant has made out a

case for bail”, “without expressing any opinion on

the merits of the case”. This does not constitute

the kind of reasoning which is expected of a

judicial order. The High Court cannot be oblivious,

in a case such as the present, of the seriousness

of the alleged offence, where a woman has met an

unnatural end within a year of marriage. The

seriousness of the alleged offence has to be

evaluated in the backdrop of the allegation that

she was being harassed for dowry; and that a

telephone call was received from the accused in

close-proximity to the time of death, making a

demand. There are specific allegations of

harassment against the accused on the ground of

dowry. An order without reasons is fundamentally

contrary to the norms which guide the judicial

process. The administration of criminal justice by

the High Court cannot be reduced to a mantra

containing a recitation of general observations.

That there has been a judicious application of

mind by the judge who is deciding an application

under Section 439 of the CrPC must emerge from

the quality of the reasoning which is embodied in

the order granting bail. While the reasons may be

brief, it is the quality of the reasons which matters

the most. That is because the reasons in a judicial

order unravel the thought process of a trained

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judicial mind. We are constrained to make these

observations because the reasons indicated in the

judgment of the High Court in this case are

becoming increasingly familiar in matters which

come to this Court. It is time that such a practice

is discontinued and that the reasons in support of

orders granting bail comport with a judicial

process which brings credibility to the

administration of criminal justice.

12. For the above reasons, we are of the view that

the order of the High Court granting bail without

due application of mind to the relevant facts and

circumstances as well to the provisions of the law

requires the interference of this Court.”

(iii). The Apex Court in the matter of Ms Y versus State

of Rajasthan and another, 2022 SCC OnLine SC 458

considering the earlier decisions as well as judgment of the

Apex Court in the matter of Mahipal v. Rajesh Kumar @

Polia and another, (2020) 2 SCC 118 has again insisted

for giving reasoned order while granting or refusing bail.

The relevant paragraph nos. 22 and 23 of the said

judgments are reproduced herein under:-

“22. The impugned order passed by the High

Court is cryptic, and does not suggest any

application of mind. There is a recent trend of

passing such orders granting or refusing to grant

bail, where the Courts make a general observation

that “the facts and the circumstances” have been

considered. No specific reasons are indicated

which precipitated the passing of the order by the

Court.

23. Such a situation continues despite various

judgments of this Court wherein this Court has

disapproved of such a practice. In the case of

Mahipal (supra) this Court observed as follows:

“25. Merely recording “having

perused the record” and “on the

facts and circumstances of the case”

does not subserve the purpose of a

reasoned judicial order. It is a

fundamental premise of open justice, to

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which our judicial system is committed,

that factors which have weighed in the

mind of the Judge in the rejection or the

grant of bail are recorded in the order

passed. Open justice is premised on the

notion that justice should not only be

done, but should manifestly and

undoubtedly be seen to be done. The duty

of Judges to give reasoned decisions lies

at the heart of this commitment.

Questions of the grant of bail concern

both liberty of individuals undergoing

criminal prosecution as well as the

interests of the criminal justice system in

ensuring that those who commit crimes

are not afforded the opportunity to

obstruct justice. Judges are duty-bound

to explain the basis on which they

have arrived at a conclusion.

(emphasis supplied)”

(iv). In quite recent, the Apex Court in the case of Manoj

Kumar Khokhar versus State of Rajasthan and

another, (2022) 3 SCC 501 considering several previous

judgments on the issue has held that thought detail

evaluation of facts on merit is not permissible, but the

Court granting bail cannot obviate its duty to apply its

judicial mind and to record reasons, brief as they may be,

for the purpose of deciding whether or not to grant bail.

13- In view of the above discussion, it is crystal clear that

before granting bail for the offence under N.D.P.S. Act, twin

conditions as provided under Section 37(1)(b)(i) and (ii)

have to be satisfied, which is in addition to Section 439 of

Cr.P.C. and mandatory in nature.

14- Having examined the bail orders of co-accused in its

entirety, I find substance in the submission of learned

A.G.A. that co-accused Sonoo Shukla and Praveen Maurya

@ Puneet Maurya have been granted bail by the

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Coordinate Bench of this Court without taking into account

the effect and rigour of Section 37 of the N.D.P.S. Act and

ignoring the settled law laid down by the Apex Court

regarding application of Section 37 of the N.D.P.S. Act,

whereas recovered quantity is undisputedly is commercial

quantity. In the conspectus of the facts of the case, Section

50 of the N.D.P.S. Act is also not applicable as the recovery

of ‘Ganja’ was from the dicky of vehicles. I also find that no

reason on merit of the case has been recorded for granting

bail to them. The Apex Court in the cases which are

mentioned in preceding paragraph nos. 11 and 12 has

deprecated the practice of granting or refusing bail without

indicating reason on merit.

15- In the light of dictum of aforesaid judgments of the

Apex Court as well as the reasons mentioned in preceding

paragraph nos. 13 and 14, this Court is of the view that

such bail orders of the Coordinate Benches, which have

been passed without giving reason on merit and without

taking note of limitations provided under Section 37 of the

N.D.P.S. Act in cases of a recovery of contraband of

commercial quantity have no persuasive value and the

same is not binding upon this Court. A judge is not bound

to grant bail to an accused on the ground of parity even

where the order granting bail to an identically placed co-

accused contains no cogent reasons or if the same has

been passed in flagrant violation of well established

principle of law. If any illegality is brought to the

knowledge of the Court, the same should not be permitted

to perpetuate. It is also well settled that no judge is

obliged to pass orders against his conscience merely to

maintain consistency. Hence, the benefit of parity of bail

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orders dated 14.07.2021 and 14.09.2021 of co-accused

Sonoo Shukla and Praveen Maurya @ Puneet Maurya

cannot be extended to present applicant. Accordingly, the

submission of learned counsel for the applicant for

granting bail to the applicant on the ground of parity is

hereby rejected. The issue of parity is decided against the

applicant.

16- So far as next argument of learned counsel for the

applicant that the applicant is in incarceration for a long

time since 24.06.2020, therefore, he is liable to be

released on bail is concerned, it is argued by learned

A.G.A. that in the case of Union of India v. Rattan

Mallik (supra), the accused was in jail for last three years,

but the Apex Court has made an observation that the

stated circumstances may be relevant for grant of bail in

matters arising out of conviction under Penal Code etc.,

but are not sufficient to satisfy the mandatory

requirements as stipulated in clause (b) of sub-Section (1)

of Section 37 of the N.D.P.S. Act. Learned A.G.A. further

submits that the argument of learned counsel for the

applicant has no leg to stand on the ground that there is

good authority to hold that mere long detention in jail does

not entitle an accused to be enlarged on bail pending trial.

It has been held to this effect in Vijay Kumar vs.

Narendra and others, (2002) 9 SCC 364, Ramesh

Kumar Singh vs. Jhabbar Singh and others, 2004

SCC (Cri) 1067 and Girand Singh vs. State of U.P.,

(2010) 69 ACC 39. Learned A.G.A. has also referred to

the judgment of the Apex Court rendered in the case of

Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI through

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its Director reported in (2007) 1 SCC 70 wherein the

Apex Court has held as under:

"..........None of the decisions cited can be said to

have laid down any absolute and unconditional

rule about when bail should be granted by the

Court and when it should not. It all depends on the

facts and circumstances of each case and it

cannot be said there is any absolute rule that the

mere fact that the accused has undergone a long

period of incarceration by itself would entitle him

to be enlarged on bail".

17- Here it would be relevant to mention that before the

Division Bench of this Court in the case of Satya Pal Vs.

State of U.P., (1998) 37 ACC 287 , the following

question had been referred by learned Single Judge for

decision :-

"Whether a fresh argument in a second bail

application for an accused should be allowed to be

advanced on those very facts that were available

to the accused while the first bail application was

moved and rejected."

The Division Bench after wholesome treatment

has answered as under :-

"Accordingly our answer to the question referred is

that fresh arguments in a second bail application

for an accused cannot be allowed to be advanced

on those very facts that were available to the

accused while the first bail application was moved

and rejected."

18- In the light of analysis of the case as mentioned above

and considering the recovery of huge quantity of Ganja as

mentioned above, coupled with the fact that the applicant

was apprehended at the spot and was having conscious

and constructive possession over the recovered Ganja, I do

not find any reasonable ground in terms of Section 37 of

the N.D.P.S. Act to hold that the applicant is not guilty of

22

an offence and he is not likely to commit any offence while

on bail.

19- In view of the facts and circumstances of the case and

on account of the reasons mentioned above, I do not find

any good ground for enlarging the applicant on bail. The

second bail application of the applicant is accordingly

rejected.

20- It is made clear that the finding recorded and

observation made herein above is for a limited purpose

and is confined to the question of releasing the accused

applicant on bail only. The trial Court shall be absolutely

free to arrive at its independent conclusions on the basis of

evidence led unaffected by anything said in this order.

21- However, trial Court is directed to conclude the trial of

the applicant expeditiously in accordance with provisions

of Section 309 Cr.P.C without granting unnecessary

adjournment to either of the party.

22- Copy of this order be sent to the concerned Court

below for compliance.

Order Date :- 30.05.2022

Shubham