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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MCRC No. 7850 of 2020

1.Sambhav Parakh S/o Late Shri Rajesh Parakh Aged About 29

Years R/o Near Naya Talab, Gudhiyari Raipur, Tahsil And

District Raipur, Chhattisgarh.

---- Applicant

Versus

1.State Of Chhattisgarh Through Police Station City Kotwali

Raipur, District Raipur, Chhattisgarh.

---- Respondent

MCRC No. 8037 of 2020

1.Harshdeep Singh Juneja S/o Late Shri Mangat Singh Juneja

Aged About 39 Years R/o Income Tax Colony, Raipur,

Chhattisgarh

---- Applicant

Versus

1.State Of Chhattisgarh Through Police Station City Kotwali,

Raipur, District Raipur, Chhattisgarh

---- Respondent

MCRC No. 8231 of 2020

1.Gaurav Shukla S/o Ved Prasad Shukla Aged About 27 Years

R/o Krishna Niwas, Near Swastik Hospital, District Bilaspur,

Chhattisgarh.

---- Applicant

Versus

1.State Of Chhattisgarh Through Police Station City Kotwali,

District Raipur, Chhattisgarh. 2021:CGHC:2531

Neutral Citation

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

---- Respondent

MCRC No. 8260 of 2020

1.Nikita Panchal, D/o Shri Sharad Panchal, Aged About 30

Years R/o Risali, Bhilai, Police Station Bhilai, District Durg

(C.G.),

At Present R/o Ishita Paradise Flat, Police Station New

Rajendra Nagar, Raipur, District Raipur Chhattisgarh.

---- Applicant

Versus

1.State Of Chhattisgarh, Through - The Station House Officer

Police Station City Kotwali, Raipur, District Raipur

Chhattisgarh.

---- Respondent

MCRC No. 8267 of 2020

1.Ashish Joshi S/o Shri Yojraj Joshi Aged About 36 Years R/o

Vikas Colony, House No. 64, Sector - 5, Karnal, Police

Station And District Karnal (Haryana)

At Present R/o Ishita Paradise 504, New Rajendra Nagar,

Tahsil And District Raipur Chhattisgarh.

---- Applicant

Versus

1.State Of Chhattisgarh Through The Station House Officer,

Police Station City Kotwali, Raipur, District Raipur

Chhattisgarh

---- Respondent

MCRC No. 8604 of 2020

1.Shreyansh Jhabak S/o Ramesh Jhabak Aged About 36 Years

R/o Sakin Panchsheel Nagar , Police Station Civil Lines,

District Raipur Chhattisgarh. 2021:CGHC:2531

Neutral Citation

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

---- Applicant

Versus

1.State Of Chhattisgarh Through The Station House Officer,

Police Station City Kotwali, District Raipur Chhattisgarh.

---- Respondent

MCRC No. 8649 of 2020

1.Alean Soren @ Alean Soreng S/o Gorge Soren Aged About

22 Years R/o Bandhuwapara, Sarkanda, P.S. Sarkanda,

District Bilaspur Chhattisgarh

---- Applicant

Versus

1.State Of Chhattisgarh Through The Station House Officer,

P.S. City Kotwali Raipur District Raipur Chhattisgarh

---- Respondent

MCRC No. 8658 of 2020

1.Rakesh Arora S/o Ashok Arora Aged About 31 Years R/o

Kapil Nagar, Sarkanda, District Bilaspur Chhattisgarh

---- Applicant

Versus

1.State Of Chhattisgarh Through The Station Hosue Officer,

P.S. City Kotwali, Raipur District Raipur Chhattisgarh

---- Respondent

MCRC No. 9511 of 2020

1.Laxman Gain S/o Late Sudhanshu Gain, Aged About 32 Years

R/o Jumani Camp, Farasgaon, Kondagaon (C.G.)

Presently Residing At GRP Chowki, Balod Chhattisgarh.

---- Applicant 2021:CGHC:2531

Neutral Citation

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

Versus

1.State Of Chhattisgarh, Through Police Station - City Kotwali,

Raipur, District - Raipur Chhattisgarh.

---- Respondent

For Applicants :

Shri Bhaskar Payashi, Advocate [MCRC No.7850 of 20220]

Ms Naushina Ali, Advocate [MCRC No.8037 of 2020]

Shri Manoj Paranjape, Advocate [MCRC No.8231 of 2020]

Shri Jitendra Gupta, Advocate [MCRC Nos.8260 & 8267 of

2020]

Shri Shailendra Dubey & Ms Shivali Dubey, Advocates

[MCRC No.8604 of 2020]

Shri Atanu Ghosh, Advocate [MCRC Nos.8649 & 8658 of

2020]

Shri P.R. Patankar, Advocate [MCRC No.9511 of 2020]

For Respondent /State :

Shri Ravish Verma, Govt. Advocate

Investing Officer :

Shri Mohd. Asrar Ali, ASI and Shri O.P. Sahu, ASI,

Investigating Officers, Police Station City Kotawali, Raipur

are also present.

Order On Board

By

Prashant Kumar Mishra, J. 2021:CGHC:2531

Neutral Citation

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

29-01-2021

1.Since all the bail applications are arising out of crime

No.255/2020 they are being considered and decided by this

common order.

2.The applicants have preferred these bail applications under

Section 439 of CrPC, as they are arrested in connection with

Crime No.255/2020, registered at Police Station City

Kotwali, Raipur (CG), for the offence punishable under

Sections 22(c), 29, 25 & 27 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for brevity ‘the Act’).

[As per the final report].

3.As per the prosecution case a secret information was received

by the Police of Police Station City Kotwali, Raipur, that the

accused Shreyansh Jhabak and Vikas Banchore are moving to

sell cocaine near Government Polytechnic, Byron Bazar,

Raipur. After taking down the information in the Rojnamcha

Sanha; preparing mukhbir panchnama; and informing the

City Superintendent of Police, ASI Mohd. Asrar Ali with

Constable Kumar Gaurav Patel & Girdhar Prajapati reached

the place of occurrence and having found the above two

accused they were raided and after making necessary

compliance of provisions of Section 50 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (for short 'the Act')

they were searched in which Shreyansh Jhabak was found in

illicit possession of 7 gms. cocaine whereas Vikas Banchore

was found in illicit possession of 10 gms. of cocaine, which

were kept wrapped in polythene sheet in their trouser pocket.

The seizure memos were prepared and the seized cocaine was

weighed in the electronic weighing machine. During 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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interrogation and verification of their mobile phones and call

details it was found that the accused persons are part of drug

cartel/mafia who are engaged in the illicit trade and

trafficking of cocaine and MDMA [Methylene-dioxy-

methamphetamine] throughout the country including in

several districts of the Chhattisgarh State.

4.Based on the information, accused Abhishek Shukla was

arrested and from his possession 93.610 gms. MDMA was

recovered. The total quantity being 110.610 gms., more than

the commercial quantity (100 gms.). The investigation

further proceeded for offence under Section 22(c) instead of

Section 22(b) of the Act. During further investigation it was

revealed to the police that the co-accused Abdul Azim,

Mohammad Minhaz, Rohiz Ahuja, Laxman Gain, Rakesh

Arora, Allen Soren, Gaurav Shukla, Ashish Joshi, Nikita

Panchal, Sambhav Parak, Harshdeep Singh Juneja & Royden

Buthello are also involved in illicit trade and trafficking

including sell, transportation and possession as also

consumption of cocaine and MDMA. The illicit drugs were

brought to Raipur from Mumbai & Goa and consumed at the

drugs party by the accused persons and is also sold to other

intending customers. Police has recorded the statements of

witnesses to the search and seizure operation; disclosure

statements of accused persons; and diary statements of other

witnesses. They are: Shiva Mudaliyar, Prakash Harpal,

Kewal Barmeda, Avinash Shukla, Dashmit Chawla, Mayank

Agrawal & Har Kiran Kaur. Statements under Section 164

Cr.P.C. have also been recorded of the witnesses Dashmit

Chawla & Avinash Shukla. 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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5.Learned counsels appearing for the applicants would argue

that more than the small quantity, but less than the

commercial quantity of contraband has been seized from

Shreyansh Jhabak, therefore, the provisions contained in

Section 37 of the Act concerning limitation on granting bail

would not attract and the applicant having remained in jail for

more than three months is entitled to be released on bail. For

other accused persons, learned counsels would further argue

that no seizure has been made from them and they have been

arrested only on the basis of disclosure made by co-accused

or by witnesses and, as such, they are entitled to be released

on bail. Learned counsels would also argue that mandatory

provisions contained in Sections 42 & 50 of the Act having

not been complied with, therefore, this also entitles applicant-

Shreyansh Jhabak to be released on bail.

6.Learned counsels appearing for the State, per contra, would

oppose the bail applications. Learned counsels would refer to

the different panchnama prepared at the time of investigation

and notices issued to the accused persons before their

personal search. It is vehemently put forth that provisions

contained in Sections 42 & 50 have been duly complied with

before personal search of the accused Shreyansh Jhabak,

Vikas Banchore & Abhishek Shukla. Learned counsels

would further submit that the total quantity of the contraband

recovered in the present case is more than 110 gms., which is

above commercial quantity, therefore, the provisions

contained under Section 37 of the Act would apply and the

applicants are not entitled to be released on bail. For such

accused from whom recovery has not been made, learned 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

counsel would submit that the charge sheet having been filed

for offence under Section 29 of the Act also, all the accused

persons are involved in criminal conspiracy to possess, sell,

consume and carry on trade of illicit psychotropic substance

and, as such, they are also not entitled to be released on bail.

7.I have heard learned counsels appearing for the parties at

length and perused the case diary.

8.Section 22 of the Act prescribes punishment for contravention

in relation to psychotropic substances. Section 22 (a)

provides for punishment where the contravention involves

small quantity which is 2 gms. in relation to cocaine and 0.5

gm. in relation to MDMA. Clause (b) provides for

punishment up to 10 years when the contravention involves

quantity lesser than commercial quantity but greater than

small quantity whereas clause (c) provides for punishment

which may extend to 20 years but shall not be less than 10

years and shall also be liable to fine which shall not be less

than one lakh rupees but which may extend to two lakh

rupees. Proviso to Section 22 further empowers the Court to

impose a fine exceeding two lakh rupees for reasons to be

recorded in the judgment.

9.Section 25 of the Act provides for punishment for allowing

premises, etc., to be used for commission of an offence. The

said provision is quoted below :

25.Punishment for allowing premises, etc., to

be used for commission of an offence.—

Whoever, being the owner or occupier or having

the control or use of any house, room, enclosure,

space, place, animal or conveyance, knowingly

permits it to be used for the commission by any 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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other person of an offence punishable under any

provision of this Act, shall be punishable with the

punishment provided for that offence.

10.Section 29 of the Act prescribes provision for punishment for

abetment and criminal conspiracy. Sub-section (1) thereof

says that whoever abets, or is a party to a criminal conspiracy

to commit an offence punishable under this Chapter, shall,

whether such offence be or be not committed in consequence

of such abetment or in pursuance of such criminal conspiracy,

and notwithstanding anything contained in section 116 of the

Indian Penal Code, be punishable with the punishment

provided for the offence.

11.Section 37 of the Act speaks about limitation on granting bail.

The entire provision is reproduced hereunder :

37. Offences to be cognizable and non-bailable.--

(1) Notwithstanding anything contained in the

Code of Criminal Procedure, 1973—

(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 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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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 or any other law for the time

being in force, on granting of bail.]

12.Having kept in mind the above referred provisions contained

in the Act, I shall now proceed to discuss the material

available against the accused persons.

13.Applicant Shreyansh Jhabak was served with notice under

Section 50 before carrying his personal search. The

documents regarding compliance of Section 50 of the Act,

prima facie, establishes that the provision has been duly

complied with. He was found in possession of 7 gms. of

cocaine whereas accused Vikas Banchore was found in

possession of 10 gms. of cocaine and accused Abhishek

Shukla was found in possession of 93.610 gms. of

psychotropic substance [MDMA]. Thus, the total quantity of

contraband recovered from the accused persons is more than

the commercial quantity.

14.One Avinash Shukla informed the police that he knows

Shreyansh and Vikas Banchore for the last ten years. They

introduced him to Abhishek Shukla, who is popularly known

as David in the drug world. This witness was also introduced

to Allen Soren, Abdul Aziz @ Saddam, Gourav Shukla,

Mohd. Minhaz @ Honey, Rakesh Arora and Ashish Joshi. He

met them at a party at Devendra Nagar, Raipur. Abhishek

Shukla, Shreyansh and Vikas Banchore offered him one gram

of cocaine at Rs.9,000/-, but he did not purchase owing to 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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shortage of funds. Shreyansh and Vikas informed him that if

he needs more quantity of cocaine he should contact

Abhishek Shukla @ David. Nikita Panchal, Ashish Joshi and

Harshdeep Juneja (owner of Mocha Hotel at VIP Road,

Raipur) regularly organize drug party in the hotel. Sambhav

Parakh, Manager of Queens Club of India, in conspiracy with

Harshdeep Juneja, Shreyansh, Minhaz @ Honey and Vikas

Banchore are engaged in sale and supply of cocaine and

MDMA by chatting in code words and they also encouraged

other persons to adopt the trade for hefty financial gain. He

also informed the police that Abhishek Shukla @ David,

Allen Soren, Abdul Aziz @ Saddam and Gourav Shukla bring

cocaine from Goa & Mumbai and then the same is sold by

other accused persons in the party organized at Mocha Hotel

& Queens Club and in other hotels of Raipur city.

15.Witnesses Mayank Agrawal and Dashmit Chawla informed

the police that the accused persons have formed a drug cartel

to bring cocaine, MDMA and other drugs from Goa &

Mumbai and thereafter to sell them individually or in group

of persons in the parties organized at the above named hotels

and that all the accused persons are connected through mobile

phone, chatting in social media and by other means.

16.Shiva Mudaliyar, Prakash Harpal and Kewal Barmeda are

witnesses to the search and seizure operation including

compliance of Section 50 of the Act.

17.Witness Harkiran Kaur further informed the police that she

knows Shreyansh Jhabak 5-6 years back and they have a

group who attend drug party in which all the accused persons

were supplying, selling and consuming cocaine & MDMA. 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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This witness specifically names Shreyansh as a drug peddler

who has supplied drug to her on several occasions.

18.In their statements under Section 164 Cr.P.C. the witnesses

Dashmit Chawla & Avinash Shukla have named almost all

the accused persons who were involved in illicit trafficking

and consumption of drugs.

19.Since commercial quantity of illicit contraband has been

recovered from three of the accused persons and the

prosecution has also filed the charge sheet under Section 29

of the Act, it will be treated that all the accused persons have

hatched criminal conspiracy to commit offence under Section

22 (c) of the Act. Thus, provisions contained in Section 37

would be attracted against all the accused persons.

20.In a recent judgment in the matter of State of Kerala and

others v Rajesh and others

1

, the Supreme Court has laid

down broad parameters to be followed while considering the

application for bail moved by the accused involved in the

offences under the Act. The following has been laid down in

paras 18 to 20 :

18. This Court has laid down broad parameters

to be followed while considering the application

for bail moved by the accused involved in the

offences under the NDPS Act. In Union of

India v. Ram Samujh , it has been elaborated as

under:

“7. It is to be borne in mind that the

aforesaid legislative mandate is required to

be adhered to and followed. It should be

borne in mind that in a murder case, the

accused commits murder of one or two

persons, while those persons who are

dealing in narcotic drugs are instrumental

1(2020) 12 SCC 122 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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in causing death or in inflicting death-blow

to a number of innocent young victims,

who are vulnerable; it causes deleterious

effects and a 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 contention with regard to punishment

under the NDPS Act, has succinctly

observed about the adverse effect of such

activities in Durand Didier v. State (UT of

Goa), as under : (SCC p. 104, para 24)

‘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 proportions 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,

Parliament in its wisdom, has made

effective provisions by introducing

this Act 81 of 1985 specifying

mandatory minimum imprisonment

and fine.’

8. To check the menace of dangerous drugs

flooding the market, Parliament has 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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provided that the person accused of

offences under the NDPS Act should not

be released on bail during trial unless the

mandatory conditions provided in Section

37, namely,

(i) there are reasonable grounds for

believing that the accused is not

guilty of such offence; and

(ii) that he is not likely to commit

any offence while on bail

are satisfied. The High Court has not given

any justifiable reason for not abiding by

the aforesaid mandate while ordering the

release of the respondent-accused on bail.

Instead of attempting to take a holistic

view of the harmful socio-economic

consequences and health hazards which

would accompany trafficking illegally in

dangerous drugs, the court should

implement the law in the spirit with which

Parliament, after due deliberation, has

amended.”

19. 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

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. 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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20. 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 liberal approach in the matter of bail

under the NDPS Act is indeed uncalled for.

21.Learned counsels appearing for the State have vehemently

argued that off late Chhattisgarh and particularly Raipur is

fast becoming hub for drug traders, therefore, if the accused

persons are treated leniently it will harm the interest of the

society and the youth of this tribal State would waste their

hard earned money on drugs and ruin their career and life.

22.Apropos this submission it would be profitable to refer the

observation made by the Supreme Court in Babua alias

Tazmul Hossain v. State of Orissa

2

, in the following words in

para 3 :

3. In view of Section 37(1)(b) of the Act unless

there are reasonable grounds for believing that

the accused is not guilty of such offence and that

he is not likely to commit any offence while on

bail alone will entitle him to a bail. In the present

case, the petitioner attempted to secure bail on

various grounds but failed. But those reasons

would be insignificant if we bear in mind the

scope of Section 37(1)(b) of the Act. At this stage

of the case all that could be seen is whether the

statements made on behalf of the prosecution

2(2001) 2 SCC 566 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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witnesses, if believable, would result in

conviction of the petitioner or not. At this

juncture, we cannot say that the accused is not

guilty of the offence if the allegations made in

the charge are established. Nor can we say that

the evidence having not been completely

adduced before the Court that there are no

grounds to hold that he is not guilty of such

offence. The other aspect to be borne in mind is

that the liberty of a citizen has got to be balanced

with the interest of the society. In cases where

narcotic drugs and psychotropic substances are

involved, the accused would indulge in activities

which are lethal to the society. Therefore, it

would certainly be in the interest of the society to

keep such persons behind bars during the

pendency of the proceedings before the court,

and the validity of Section 37(1)(b) having been

upheld, we cannot take any other view.

23.Learned counsels for such accused from whom there has been

no seizure of drugs would argue for their release on bail,

however, in Joyce Karoung v. Narcotics Control Bureau

3

,

the Delhi High Court has held that all those persons who are

major link in the entire operation have to be treated in the

same manner as if they have taken part in trading of

commercial quantity of drugs. Relying upon the decision

rendered by the Supreme Court in Babua (supra) the Dehi

High Court has held thus at paras 23 & 24 :

23. It is not a case that the Petitioner has been

apprehended solely on the basis of statement

given by the co-accused. Petitioner is also

alleged to have been arrested as part of the search

and seizure operation from one of the places,

which was disclosed by the co-accused during

the operation. Not only is the petitioner alleged to

have been apprehended, she is alleged to have led

3Bail Appln. 1086 of 2018 [2-6-2018] : MANU/DE/2279/2018 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

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to the arrest of another co-accused Stephen, who

is alleged to have come to collect the bag of

drugs from the petitioner. The petitioner is

alleged to be a major link in the entire operation.

Stephen who is apprehended on the disclosure of

the petitioner in his statement under section 67

has also named the petitioner and shown her

involvement. Not only has he named her, but has

also stated that earlier also he had come with one

James to collect drugs from the petitioner.

24. The ratio of the judgment of the Supreme

Court in Babua (supra) is squarely applicable in

the facts of the present case. At this juncture, in

my view, it cannot be prima facie held that the

petitioner is not guilty of the offence, if the

allegations made are established. Nor can it be

prima facie said that there are no grounds to hold

that she is not guilty of such offence. As held by

the Supreme Court the liberty of a citizen has got

to be balanced with the interest of the society. In

cases where narcotic drugs and psychotropic

substances are involved, the accused would

indulge in activities which are lethal to the

society. As per the allegations, qua the petitioner

it is not the first time, there are allegations of

involvement of the in similar transaction in the

past.

24.It is also to be seen that statements of two accused persons

have been recorded under Section 67 of the Act and they have

named other accused persons as part of the entire operation. It

is also to be kept in mind that the prosecution has filed the

charge sheet for criminal conspiracy under Section 29 of the

Act. Thus, all the accused persons being part of a bigger drug

cartel/mafia their act cannot be examined in isolation and on

stand alone basis, but the whole case has to be treated as one

of peddling of commercial quantity of illicit contraband. 2021:CGHC:2531

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25.In so far as violation of the mandatory provisions as contained

under Section 50 of the Act is concerned, albeit I am satisfied

that the said provision has been duly complied with, the law

in this regard has been settled by the Supreme Court in

Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy

4

,

holding that at the stage of consideration for bail violation of

the provision cannot be presumed before the matter is

considered during trial. The following has been held thus in

para 6 :

6. In the light of Section 37 of the Act no accused

can be released on bail when the application is

opposed by the Public Prosecutor unless the court

is satisfied that there are reasonable grounds for

believing that he is not guilty of such offences

and that he is not likely to commit any offence

while on bail. It is unfortunate that matters which

could be established only in offence regarding

compliance with Sections 52 and 57 have been

pre-judged by the learned Single Judge at the

stage of consideration for bail. The minimum

which learned Single Judge should have taken

into account was the factual presumption in law

position that official acts have been regularly

performed. Such presumption can be rebutted

only during evidence and not merely saying that

no document has been produced before the

learned Single Judge during bail stage regarding

the compliance with the formalities mentioned in

those two sections.

26.In Hassan Azadeh v Union of India

5

the Goa Bench of the

Bombay High Court denied bail to an accused in a case where

109 gms. cocaine was seized. The following was observed in

para 24 :

4(2000) 9 SCC 549

52017 SCC OnLine Bom 8149 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

24. Besides, the Chemical Analyser had stated

the weight of the powders taken by him from the

packets and found to be more than 100 grams,

which he had mixed and weighed and thereafter

repacked them after carrying out the tests.

Moreover, at this stage, the rigour of Section 37

of the Act shall clearly apply to the case of the

applicant, which bars his release on bail on being

found in possession of commercial quantity of

cocaine, prima facie. Besides, there has been

strong resistance to the application for bail and

moreover, there are reasonable grounds to

believe that he is guilty of the offence, which acts

as deterrent to allow him the benefit of bail.

Furthermore, in terms of Section 35 of the Act,

there is a presumption of culpable mental state of

the accused in a prosecution for the offences

under this Act, though it is another matter that it

shall be a defence for the accused to prove that

he had no such mental state with respect to the

act charged for an offence in that prosecution.

Last but not the least, the statement of the

applicant recorded in terms of Section 67(c) of

the Act is also a material circumstance against

him. In that view of the matter and once there is a

prima facie finding that the accused has been

found in possession of cocaine, which is a

commercial quantity, the rigour of Section 37 of

the Act would come into play, thereby

disentitling the applicant to any favourable order.

Last but not the least, it is always open to the

Prosecutor to recall and reexamine the Chemical

Analyser and get the details of the tests carried

out by him on the said contraband. It would not

tantamount to filling in the lacunae if the

Chemical Analyser had made appropriate notes

while conducting such tests. The judgments

relied upon on behalf of the applicant nowhere

support his case for his release on bail. There is

no merit in his application, which is hereby

dismissed. 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020]

27.Having considered the entire facts situation of the case, the

violations for which the charge sheet has been filed and the

judgments rendered by the Supreme Court and different High

Courts on the issue which has fallen for consideration, I am

of the considered opinion that all the accused persons, being

part of a drug cartel, who bring drugs from Goa & Mumbai to

Chhattisgarh and supply the same to individuals or to groups

by organizing parties in different hotels, are not entitled to be

released on bail, more so when the prosecution is alleging

criminal conspiracy under Section 29 of the Act.

28.Considering entire facts situation of the case and particularly

considering the seriousness of the offence and the nature of

evidence available on record, this Court is not inclined to

grant bail to the applicants.

29.Accordingly, all the bail applications are rejected.

Sd/-

(Prashant Kumar Mishra)

Judge

Gowri

HEAD NOTES

•Where commercial quantity of illicit psychotropic substance

seized, limitation for grant of bail contained in Sec. 37 NDPS Act

would be attracted and the accused is not entitled to be released on

bail.

•When commercial quantity of illicit psychotropic substance is

recovered from one accused, in view of Sec. 29 NDPS Act, such

other accused from whom no recovery has been made are also not

entitled for bail as they have major link in the entire operation and

have taken part in drug peddling and allowed consumption in their

premises. 2021:CGHC:2531

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M.Cr.C.No.7850 of 2020 & Other

connected matters [Crime No.255 of 2020] 2021:CGHC:2531

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