Punjab and Haryana High Court Grants Regular Bail in NDPS Case Citing Non-Compliance of Section 50 NDPS Act, 2022

Case Details

Before the Punjab and Haryana High Court at Chandigarh, the Honourable Mr. Justice Mahabir Singh Sindhu heard and decided CRM-M No. 5382 of 2021 (O&M) on 14 December 2022. The proceeding was a petition filed under Section 439 of the Code of Criminal Procedure, 1973, seeking the grant of regular bail. The statutory setting involved offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, specifically Section 22 of the Act, arising from FIR No. 38 dated 15.03.2019 registered at Police Station Lalru, SAS Nagar (Mohali). The nature of the proceeding was the petitioner's application to make absolute the interim bail previously granted, culminating in a final order granting regular bail pending trial.

Facts

The material facts and procedural background of the case are as follows. The petitioner, Amarjeet Singh @ Sunny, was accused in FIR No. 38 dated 15.03.2019 under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegations against him were that he was found in possession of 125 injections of 'LEEGESIC', each weighing 2 ml, containing 0.28 mg/ml of Buprenorphine, a psychotropic substance. Additionally, he was found with 125 vials of 'Avil' containing the salt Pheniramine Maleate, which was acknowledged as not falling under the purview of the NDPS Act. The petitioner had been in custody since the date of the FIR, 15 March 2019. Prior to the final hearing of the regular bail petition, a co-accused, Baljeet Singh @ Beeta, had been granted interim bail by the High Court in November 2020. Relying on this and citing no progress in the trial, the petitioner secured an order for interim bail from the High Court on 02 September 2021, which was granted subject to furnishing bonds. Subsequently, the petition for regular bail came up for final hearing where the petitioner's counsel advanced specific arguments regarding the conduct of the search and the petitioner's post-release behaviour during the interim bail period.

Issues

The legal questions presented for the court's determination were distinct and interlinked. The primary issue was whether the petitioner was entitled to the grant of regular bail under Section 439 Cr.P.C. in connection with an offence under the NDPS Act, which is governed by the stringent conditions set forth in Section 37 of the NDPS Act. This overarching issue bifurcated into several sub-issues: firstly, whether the alleged non-compliance with the mandatory procedure under Section 50 of the NDPS Act during the search of the petitioner constituted a valid ground that could satisfy the court's rigour under Section 37 of the Act for granting bail. Secondly, whether the petitioner's conduct subsequent to the grant of interim bail—specifically his regular appearance before the trial court and the absence of any alleged misuse of the bail concession—weighed in favour of making the interim bail absolute. Thirdly, whether the absence of the petitioner's involvement in any other NDPS case, apart from the present FIR, was a relevant factor for consideration. Fourthly, whether there existed any tangible apprehension that the petitioner, if released on bail, would threaten prosecution witnesses or otherwise hamper the trial proceedings.

Decision

The court allowed the petition and granted regular bail to the petitioner, making absolute the interim bail granted earlier. The court's decision was predicated on a composite satisfaction derived from multiple factors, each of which was separately and fully developed in its reasoning. The court held definitively that non-compliance with the mandatory provision of Section 50 of the NDPS Act is a sufficient ground to record the satisfaction required under Section 37 of the NDPS Act for the purpose of granting bail pending trial. This finding was central to the court's reasoning. Section 50 of the NDPS Act confers a valuable right upon a person about to be searched, requiring the empowered officer to inform the person of his right to be taken before a Gazetted Officer or a Magistrate for the search. The petitioner's counsel had specifically submitted that during the search, no such offer was given by the seizing officer. The court accepted this submission as a factual contention that was not disputed by the State Counsel, who had taken instructions from the investigating officer. The legal consequence of this non-compliance, as interpreted by the court, was significant enough to tilt the balance in favour of bail, as it went to the root of the procedure for proving possession, a core ingredient of the offence.

The court's reasoning on this point involved an implicit application of the twin conditions of Section 37 of the NDPS Act. Section 37 mandates that for offences punishable with imprisonment of five years or more under the Act, no person shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the release, and the court is satisfied that 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. The court reasoned that a clear breach of a mandatory procedural safeguard like Section 50 provided a reasonable ground to believe, at the bail stage, in the potential infirmity of the prosecution's case regarding conscious possession. This did not amount to a final determination of guilt or innocence but provided a basis for the satisfaction required under the first prong of Section 37. The court elaborated that sending the petitioner back to custody at that stage, given this procedural flaw, would not serve any useful purpose.

The court further elaborated its decision by incorporating factors related to the petitioner's personal conduct and the circumstances of the case. It gave substantial weight to the petitioner's post-release behaviour during the period of interim bail. The petitioner had been regularly appearing before the trial court, and there was no report or allegation of any misuse of the bail concession. This factual finding, again not contested by the State, addressed the second prong of Section 37, relating to the likelihood of committing an offence while on bail. The petitioner's demonstrated compliance with bail conditions over a period of more than a year (from September 2021 to December 2022) was treated as positive evidence of his reliability. Furthermore, the court noted the petitioner's submission, uncontroverted by the State, that he was not involved in any other NDPS case except the present FIR. This absence of a criminal antecedents under the NDPS Act was considered a relevant factor in assessing his propensity for drug-related crimes while on bail.

The court also considered and found meritless any general apprehension of witness tampering or trial obstruction. The petitioner's counsel had contended there was no such allegation, and the State Counsel did not raise any contrary instruction or submission on this point. The court therefore concluded there was no tangible basis to believe the petitioner would threaten witnesses or hamper the trial. This further reinforced the satisfaction under Section 37. Additionally, the court took judicial notice of the pending trial, with the State Counsel informing that the case was listed for 04 January 2023. The prolonged period of custody since March 2019, coupled with the grant of bail to a co-accused, provided the contextual backdrop against which the specific legal grounds were evaluated. The court's final order directed that the petitioner be admitted to bail on furnishing fresh bail and surety bonds to the satisfaction of the trial court. It imposed a continuing condition of full cooperation with the trial court without seeking unnecessary adjournments. Crucially, the court issued a caveat that its observations on the non-compliance of Section 50 and other factors were not to be construed as an expression of opinion on the ultimate merits of the case, thus preserving the integrity of the pending trial. It also clarified that the State would be at liberty to seek recall of the bail order in the event of any misuse of the concession by the petitioner, thereby incorporating a safeguard mechanism into the bail order itself.

Quotes

"Learned counsel for the petitioner submits that during his search, no offer was given by the seizing officer; thus there is non-compliance of mandatory provision of Section 50 of 'the Act'."

"In view of the above, sending the petitioner in custody at this stage will not serve any purpose. Moreover, in the opinion of this Court, non-compliance of Section 50 is also a sufficient ground to record the satisfaction in terms of Section 37 of 'the Act' for the purpose of granting bail pending trial to petitioner."

"Consequently, the present petition is allowed. Interim bail granted to the petitioner, vide order dated 02.09.2021, is made absolute."

"The above observations may not be construed as an expression of opinion on the merits of the case in any manner."

"It is clarified that in case there is any misuse of concession of bail on the part of the petitioner, State of Punjab would be at liberty to move an appropriate application for recalling of this order."