Vivek Puri, J
1. The matter has been taken up through video-conferencing due to COVID-19 pandemic.
2. Through instant petition, the petitioner is seeking regular bail in case bearing FIR No.168 dated 12.09.2018 registered under Section 22 of the
Narcotics Drugs and Psychotropic Substances Act (for short the 'NDPS Act') at Police Station Beas, Amritsar Rural, District Amritsar.
3. Briefly, the aforesaid FIR has been registered in pursuance of recovery of 870 tablets of Alprazolam from the possession of the petitioner.
4. Custody certificate of the petitioner has been placed on record.
5. It has been argued by learned counsel for the petitioner that the petitioner has been falsely implicated in the instant case and was lifted from the
Court Complex, Amritsar. Furthermore, the mandatory provisions of Section 50 of the NDPS Act have not been complied with.
6. On the contrary, it has been argued by learned State counsel that the average weight of the tablet(s) recovered from the possession of the petitioner
is 256 mg and the total weight comes to 222.72 grams which falls in the category of commercial quantity. Furthermore, the petitioner is involved in 18
other cases, thought acquitted/discharged in 15 cases and has been convicted in 03 cases under the NDPS Act. The challan was presented on
20.01.2019, charge was framed on 12.03.2019 and out of 08, 02 witnesses have already been examined.
7. It is significant to note the earlier bail application for grant of regular bail to the petitioner was dismissed by a speaking order dated 19. 08.2020,
wherein, the petitioner had also raised the plea of false implication and the fact that he was lifted from the Court Complex, Amritsar.
8. In the instant case, as per the version of the prosecution, on seeing the police party, the petitioner had made an attempt to throw the polythene bag
which was found to be containing contraband. It is not the case of the prosecution that contraband has been recovered during the course of personal
search of the petitioner and as such, it cannot be said that the mandatory provisions of Section 50 of the NDPS Act were required to be complied
with. The recovery of contraband has not been effected during the course of personal search of the petitioner. The mandate of Section 50 of the
NDPS Act is confined to the personal search only as observed by Hon'ble the Supreme Court in State of Punjab vs. Baljinder Singh and another, 2020
(1) RCR Criminal, 58 and Jeet Ram vs. The Narcotics Control Bureau, Chandigarh, 2020 (4) R.C.R (Criminal), 151. In such circumstances, the case
of the prosecution cannot be doubted at this stage on the score of non-compliance of Section 50 of the NDPS Act.
9. In State of Kerala etc. vs. Rajesh etc., 2020 (1) R.C.R (CRIMIAL) 818, it has been observed by the Hon'ble Supreme Court that liberal approach
in granting the bail in the cases under the NDPS Act is uncalled for. Furthermore, the twin conditions, as laid down under Section 37 of the NDPS Act
must be satisfied before extending the concession of bail. In the aforesaid decision, it has been laid down as following:-
“18. The jurisdiction of the Court to grant bail is circumscribed by the provisions of Section 37 of the NDPS Act. It can be granted in case there
are reasonable grounds for believing that accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. It is the
mandate of the legislature which is required to be followed. At this juncture, a reference to Section 37 of the Act is apposite. That provision makes the
offences under the Act cognizable and non-bailable. It reads thus:-
“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.
(emphasis supplied)
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.â€
10. A perusal of the above makes it abundantly clear that the accused cannot be released on bail unless the material on record indicates that there are
reasonable grounds for believing that he is not guilty of such offence; and he is not likely to commit any offence while on bail. It has been further
observed that the expression “reasonable grounds†means something more than prima facie grounds.
11. In the present case, the quantity of contraband recovered from the conscious possession of the petitioner falls in the category of commercial
quantity. On seeing the police party, the petitioner had tried to throw the polythene bag containing contraband. It indicates that the petitioner was
conscious of the fact that the contraband is being carried in the polythene bag. Consequently, it cannot be concluded that there are reasonable grounds
for believing that the petitioner is not guilty of an offence under the NDPS Act. Furthermore, the petitioner has been convicted in three other cases
under the NDPS Act which rules out the possibility to conclude that he is not likely to commit the offence while on bail. Furthermore, the earlier
application for regular bail of the petitioner has already been dismissed in terms of speaking order dated 19.08.2020. No significant change of
circumstances is made out which may justify to extend the concession of bail to the petitioner. Moreover, the long incarceration cannot be termed to
be a circumstance to extend the concession of bail particularly because the Courts were on restricted mode of hearing due to Covid-19 Pandemic.
12. Keeping in view the totality of circumstances, no justified ground is made out to extend the concession of bail to the petitioner.
13. Dismissed.
