# Dheeraj Singh v. State of U.P

- **Citation:** (2021) 2 ILRA 870
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-17
- **Case number:** Bail No. 10281 of 2020
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dheeraj-singh-v-state-of-u-p-46833
- **Pages:** 5

## Headnote

Law
-Code
of
Criminal
Procedure - under 439 -Application for
Bail - Narcotic Drugs and Psychotropic
Substances Act, 1985- Section 37 - In case
of bail under the provisions of N.D.P.S. Act
where quantity of contraband is more than the
commercial quantity prescribed under the
Statute, reference to S. 37 of the N.D.P.S. Act
has to be taken into consideration and the level
of satisfaction as prescribed under section
37(1)(b) of the Act is required to be recorded. If
the Court granting bail has not taken into
consideration the provisions of section 37 of the
N.D.P.S. Act and, recorded the level of
satisfaction as mandated under section 37 of
the N.D.P.S. Act, the order granting bail to such
an accused would not be sustainable. (Para 15)

Therefore,
unless
two
conditions
i.e.
(i)
satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty and (ii) he is not likely to
commit any offence while on bail, are satisfied,
the accused cannot be released on bail as this is
the bar which operates while considering the
bail application under the provisions of the
N.D.P.S. Act if the quantity of contraband
recovered is above the commercial quantity.
(Para 14)

In the present case, the Court does not find any
reasonable ground to believe that the accusedapplicant prima facie has not committed the
offence and, would not commit any offence in
future while on bail inasmuch as he has criminal
history of identical cases. Since, in the present
case bar prescribed under section 37(1)(b) of
the N.D.P.S. Act is not crossed, this Court does
not find any ground to enlarge the accusedapplicant on bail. (Para 16)

B.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985: Section 50 - There is
no denial from the accused-applicant that the
car in question does not belong to him or a
large quantity of the contraband was not
recovered from two vehicles. Recovery of
contraband from two vehicles was made in the
presence of Gazetted Officer and, there has
been no violation of section 50 of the N.D.P.S.
Act. The accused-applicant has criminal history
of identical cases and while he was on bail, he
has allegedly committed the present offence.
(Para 12)

Bail application rejected. (E-3)

Precedent followed:

## Text

870 INDIAN LAW REPORTS ALLAHABAD SERIES

22. In case there is breach of any of
the above conditions or in case it is
otherwise found for any other reason the
bail is required to be cancelled, it shall be
open for the State or the appropriate
authority
to
move
application
for
cancellation of bail in accordance with law.
----------
(2021)02ILR A870
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Bail No. 10281 of 2020

Dheeraj Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Meenakshi Singh Parihar, Bipin Kumar
Singh, Prashant Kumar Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure - under 439 -Application for
Bail - Narcotic Drugs and Psychotropic
Substances Act, 1985- Section 37 - In case
of bail under the provisions of N.D.P.S. Act
where quantity of contraband is more than the
commercial quantity prescribed under the
Statute, reference to S. 37 of the N.D.P.S. Act
has to be taken into consideration and the level
of satisfaction as prescribed under section
37(1)(b) of the Act is required to be recorded. If
the Court granting bail has not taken into
consideration the provisions of section 37 of the
N.D.P.S. Act and, recorded the level of
satisfaction as mandated under section 37 of
the N.D.P.S. Act, the order granting bail to such
an accused would not be sustainable. (Para 15)

Therefore,
unless
two
conditions
i.e.
(i)
satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty and (ii) he is not likely to
commit any offence while on bail, are satisfied,
the accused cannot be released on bail as this is
the bar which operates while considering the
bail application under the provisions of the
N.D.P.S. Act if the quantity of contraband
recovered is above the commercial quantity.
(Para 14)

In the present case, the Court does not find any
reasonable ground to believe that the accusedapplicant prima facie has not committed the
offence and, would not commit any offence in
future while on bail inasmuch as he has criminal
history of identical cases. Since, in the present
case bar prescribed under section 37(1)(b) of
the N.D.P.S. Act is not crossed, this Court does
not find any ground to enlarge the accusedapplicant on bail. (Para 16)

B.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985: Section 50 - There is
no denial from the accused-applicant that the
car in question does not belong to him or a
large quantity of the contraband was not
recovered from two vehicles. Recovery of
contraband from two vehicles was made in the
presence of Gazetted Officer and, there has
been no violation of section 50 of the N.D.P.S.
Act. The accused-applicant has criminal history
of identical cases and while he was on bail, he
has allegedly committed the present offence.
(Para 12)

Bail application rejected. (E-3)

Precedent followed:

1. U.O.I. Vs Shiv Shankar Kesari, (2007) 7 SCC
798 (Para 8)

2. Satpal Singh Vs St. of Punj., (2018) 13 SCC
813 (Para 15)

Present application u/s 439 Cr.P.C. has
been filed seeking bail in FIR No. 0337 of
2020 u/s 8/20 of the NDPS Act, 1985,
Police Station Antoo, District Pratapgarh.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)
2 All. Dheeraj Singh Vs. State of U.P.
871

1. This bail application under Section
439 Cr.P.C. has been filed seeking bail in
FIR No.0337 of 2020 under Section 8/20 of
the Narcotic Drugs and Psychotropic
Substance Act, 1985 (for short 'N.D.P.S.
Act'),
Police
Station Antoo,
District
Pratapgarh.

2. As per the prosecution story, on
16.07.2020, the Station House Officer, Mr.
Manoj Kumar Tiwari, Police Station Antoo,
Pratapgarh along with other members of his
team was checking suspicious vehicles and
wanted
criminals.
He
received
an
information/input from in-charge S.O.G.
that some illegal articles were suspected to
be delievered in the area of the police
station under his jurisdiction. On this
information, checking points were alerted
and the personnel posted there, were
directed to check vehicles with alertness
and alacrity. On specific inputs regarding
two vehicles, the police party reached at the
place where these vehicles were parked
and, some articles were being downloaded
from truck. The police party noticed that
sacks were being transferred from truck to
dicky of the car standing there. These
vehicles were encircled by the police team
and five people present in those vehicles
who tried to flee away, were apprehended.
One of them was the present accusedapplicant
and
from
his
possession,
Rs.7,000/- was recovered. From other
accused also money was recovered. In the
truck bearing Reg.No.UP44AT 1312, sacks
filled with narcotic substance were found.
Similarly, in the dicky of the Car
No.UP32LL 8788 KIA SELTOS, two sacks
of white color filled with some substance
were found. The accused accepted that
sacks were having Marizuana/Ganja.

3. All five persons including the
accused-applicant were taken in custody at
7:30 P.M. and were made aware of their
rights under Section 50 of the N.D.P.S. Act.
They were asked to go with the police party
before the Gazetted Officer for their
personal search. However, these persons
did not respond. Since, it was a large
quantity of Marizuana/Ganja which was
found in two vehicles, the circle officer was
informed who came on the spot and in his
presence and directions truck and car were
searched in accordance with law. Some of
the sacks were opened, and it was found
that the substance inside the sack was
smelling like Marizuance/Ganja.

4. On investigation, the accusedapplicant told the police that he had been
bringing Marizuance/Ganja from Korapur,
Vishakhapatnam in trucks ferrying coal
with the help of these persons taken in
custody. Total contraband recovered from
the truck and the car was 1,606.8 Kg which
was stacked in 48 sacks. Samples from all
the sacks were collected. The market value
of the contraband recovered was more than
two crores. Out of 48 sacks, 3 sacks were
recovered from the dicky of the car. The
truck in question belongs to the father of
co-accused-Ravi Yadav and, the car was of
the present accused-applicant.

5. Heard Mr. H.G.S. Parihar, Senior
Advocate assisted by Ms. Minakshi Singh
Parihar, learned counsel for the accusedapplicant and Mr. Rao Narendra Singh,
learned A.G.A. for the State.

6. It has been submitted on behalf of
the accused-applicant that the accusedapplicant was arrested on 15.07.2020 but
his arrest was shown on 16.07.2020. In
para 8 of the affidavit filed in support of the
bail
application
this
fact
has
been
specifically mentioned. There is no specific
denial to this averment in the counter
872 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit filed by the State. It has further
been submitted that charge-sheet has been
filed in the case. The accused-applicant has
no concern with the case and recovery
allegedly made from the car of the accusedapplicant is a false recovery. It has been
also submitted that charge-sheet has been
submitted
without
Forensic
Science
Laboratory's report of the contraband
allegedly recovered form the possession of
the
accused-applicant.
The
accusedapplicant has criminal history of three cases
which are mentioned in para 28 of the
affidavit as hereunder:-

(i) Case Crime No.470 of 2009
under Sections 18/20 N.D.P.S. Act, Police
Station Aaspur Deosara, Pratapgarh.

(ii) Case Crime No.26 of 2010
under Section 2/3 of U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
Police Station Aaspur Deosara, Pratapgarh.

(iii) Case Crime No.37 of 2019,
under Section 8/20 of the N.D.P.S. Act,
Police Station Aaspur Devsara, Pratapgarh.

7. It is submitted that the criminal
history of the accused-applicant has been
explained. In the first case i.e. Case Crime
No.470 of 2009 (supra), the accusedapplicant has been acquitted by the trial
court vide judgment and order dated
27.01.2016 and in other two cases the
accused-applicant has been enlarged on bail
by this Court. Bail orders have been placed
on record with the bail application.

8. He has thus, submitted that prima
facie,
the
accused-applicant
has
not
committed any offence and in future there
is no possibility of him committing similar
offence and therefore, he is entitled to be
enlarged on bail. Learned counsel for the
accused-applicant has placed reliance on
the judgment of the Supreme Court in the
case of Union of India versus Shiv
Shankar Kesari: (2007) 7 SCC 798 in
support of his submissions.

9. On the other hand, Mr. Rao
Narendra Singh, learned A.G.A. appearing
for the State has opposed the bail
application and has submitted that recovery
of such a large quantity of contraband from
two vehicles of the present accusedapplicant and other co-accused cannot be
doubted. Search was conducted in presence
of the Gazetted Officer. All 48 sacks filled
with Marizuana were recovered and total
quantity recovered from the possession of
the accused-applicant and others is 1606.8
kg. He has further submitted that the
accused-applicant has criminal history of
identical cases and while he was on bail, he
has committed the present offence. It has
been further submitted that the accusedapplicant
does
not
satisfy
the
twin
conditions
mentioned
under
Section
37(1)(b) of the N.D.P.S. Act and, therefore,
he is not entitled for bail.

10. It has been further submitted that
in the counter affidavit filed on behalf of
the State, averments in para 8 of the
affidavit filed in support of the bail
application have been said to be wholly
incorrect and denied. Learned A.G.A. has
further submitted that judgment in the case
of Union of India vs Shiv Shanker Kesari
(supra) does not support the case of the
accused-applicant but it supports the
prosecution case. The two conditions i.e.
satisfaction of the Court that there are
reasonable ground for believing that the
accused-applicant is not guilty and, he is
not likely to commit any offence while on
bail, are not satisfied in the present case
inasmuch as the accused-applicant has
criminal history of identical cases and
while on bail, he has committed another
2 All. Dheeraj Singh Vs. State of U.P.
873
offence. Recovery of such a large quantity
of narcotic substance from two vehicles
belonging to the accused-applicant and
other co-accused cannot be doubted and
therefore, there is no ground to believe that
the accused-applicant is not guilty of
commission of the offence. He, therefore,
has submitted that the present application is
liable to be rejected.

11. I have considered the submissions
advanced on behalf of the learned counsel
for the accused-applicant and learned
A.G.A. for the State.

12. There is no denial from the
accused-applicant that the car in question
does not belong to him or such a large
quantity of the contraband was not
recovered from two vehicles. Recovery of
contraband from two vehicles was made in
the presence of Gazetted officer and, there
has been no violation of Section 50 of the
N.D.P.S. Act. The accused-applicant has
criminal history of identical cases and
while he was on bail, he has allegedly
committed the present offence.

13. Section 37 of the N.D.P.S. Act
reads as under:-

"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
a
term
of
imprisonment of five years or more under
this Act 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."

14. Therefore, unless two conditions
i.e. (i) satisfaction of the Court that there
are reasonable grounds for believing that
the accused is not guilty: and (ii) he is not
likely to commit any offence while on bail,
are satisfied, the accused cannot be released
on bail as this is the bar which operates
while considering the bail application under
the provisions of the N.D.P.S. Act if the
quantity of contraband recovered is above
the commercial quantity. The Supreme
Court in the case of Union of India vs Shiv
Shanker Kesari (supra) in para 11 and 12
has held as under:-

"11. The court while considering
the application for bail with reference to
Section 37 of the Act is not called upon to
record a finding of not guilty. It is for the
limited purpose essentially confined to the
question of releasing the accused on bail
that the court is called upon to see if there
are reasonable grounds for believing that
the accused is not guilty and records its
satisfaction about the existence of such
grounds. But the court has not to consider
the matter as if it is pronouncing a
judgment of acquittal and recording a
finding of not guilty.

12. Additionally, the court has to
record a finding that while on bail the
accused is not likely to commit any offence
874 INDIAN LAW REPORTS ALLAHABAD SERIES
and there should also exist some materials
to come to such a conclusion."

15. The Supreme Court in the case of
Satpal Singh vs State of Punjab : (2018)
13 SCC 813 has held that in case of bail
under the provisions of N.D.P.S. Act where
quantity of contraband is more than the
commercial quantity prescribed under the
Statute, reference to Section 37 of the
N.D.P.S. Act has to be taken into
consideration and the level of satisfaction
as prescribed under Section 37(1)(b) of the
Act is required to be recorded. If the Court
granting
bail
has
not
taken
into
consideration the provisions of Section 37
of the N.D.P.S. Act and, recorded the level
of satisfaction as mandated under Section
37 of the N.D.P.S. Act, the order granting
bail to such an accused would not be
sustainable.

Para 13 and 14 of the aforesaid
judgment are extracted hereinbelow:-

"13. In any case, the protection
under Section 438 CrPC is available to the
accused only till the court summons the
accused based on the charge-sheet [report
under Section 173(2) CrPC]. On such
appearance, the accused has to seek
regular bail under Section 439 CrPC and
that application has to be considered by the
court on its own merits. Merely because an
accused was under the protection of
anticipatory bail granted under Section 438
CrPC that does not mean that he is
automatically entitled to regular bail under
Section 439 CrPC. The satisfaction of the
court for granting protection under Section
438 CrPC is different from the one under
Section 439 CrPC while considering
regular bail.

14. Be that as it may, the order
dated 21-9-2017 [Beant Singh v. State of
Punjab, 2017 SCC OnLine P&H 3801]
passed by the High Court does not show
that there is any reference to Section 37 of
the NDPS Act. The quantity is reportedly
commercial. In the facts and circumstances
of the case, the High Court could not have
and should not have passed the order under
Section 438 or 439 CrPC without reference
to Section 37 of the NDPS Act and without
entering a finding on the required level of
satisfaction
in
case
the
Court
was
otherwise inclined to grant the bail. Such a
satisfaction having not being entered, the
order dated 21-9-2017 [Beant Singh v.
State of Punjab, 2017 SCC OnLine P&H
3801] is only to be set aside and we do so."

16. Considering the facts of the
present case, the Court does not find any
reasonable ground to believe that the
accused-applicant prima facie has not
committed the offence and, would not
commit any offence in future while on bail
inasmuch as he has criminal history of
identical cases. Since, in the present case
bar prescribed under Section 37(1)(b) of
the N.D.P.S. Act is not crossed, this Court
does not find any ground to enlarge the
accused-applicant on bail

17. This bail application is rejected.
----------
(2021)02ILR A874
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 97 of 1998

Chheda Khan & Ors. ...Petitioners
Versus
D.D.C. Raebareli & Ors. ...Respondents

Counsel for the Petitioners: