# Shailendra Kumar Gupta @ Shailu (In Jail) v. State of U.P

- **Citation:** Crl. Misc. Ist Bail Application No. 3515 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Crl. Misc. Ist Bail Application No. 3515 of 2020
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-gupta-shailu-in-jail-v-state-of-u-p-46318
- **Pages:** 20

## Headnote

A. Criminal law- The Narcotic Drugs and
Psychotropic Substance Act,1985-Sections
8/21-Code of Criminal Procedure,1973Section
439
-application-rejectionrecovery of 1 kg. 17 gram of charas from
the possession of applicant which is above
commercial quantity-applicant prayed he
has been falsely implicated due to enmity
as a civil suit is pending between the
parties- a case of public gambling also got
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
registered against the applicant-lower
court didnot consider the applicant bail
due to applicant's past antecedents.
(Para 3 to 26)

Perusal of the FIR and statements recorded of the
informant and other policemen, site plan of the place
of occurrence reveals that an amount of 1 kilogram
17 gram charas was recovered form the applicant in
his right hand in broad daylight at 4 pm in crowded
area.(Para 20)

The application is rejected. (E-6)

List of Cases Cited:-

## Text

_Characters 0–39,880 of 68,803. This is a partial read: ask again with offset=39880 for what follows._

3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1311
2020, under Sections 188 & 505(2) IPC,
Police Station Kotwali Nagar, District
Ayodhya,
the
applicant
Siddharth
Varadarajan, be released on bail on his
executing a personal bond to the tune of
Rs.2,00,000/- (Rupees Two Lakh) with two
sureties each in the like amount to the
satisfaction of the learned trial Court
concerned.

59. The applicant shall abide by the
following conditions:

1. The applicant shall not leave India
during the currency of trial without prior
permission from the concerned trial Court.

2. The applicant shall surrender his
passport to the concerned trial Court or before
this Court forthwith. His passport will remain in
custody of the concerned trial Court/with the
registry of this Court.

3. The applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the dates fixed for evidence
and the witnesses are present in court. In case of
default of this condition, it shall be open for the
trial court to treat it as abuse of liberty of bail
and pass orders in accordance with law to
ensure presence of the applicant.

4. In case, the applicant misuses the
liberty of bail, the trial Court concerned may
take appropriate action in accordance with law.

5. The applicant shall remain present,
in person, before the trial court on the dates
fixed for (i) opening of the case, (ii) framing of
charge and (iii) recording of statement under
Section 313 Cr.P.C. If in the opinion of the trial
court default of this condition is deliberate or
without sufficient cause, then it shall be open
for the trial court to treat such default as abuse
of liberty of his bail and proceed against him in
accordance with law.

6. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad.

7. The computer generated copy of
such order shall be self attested by the counsel
or the party concerned.

8.
The
concerned
Court/Authority/Official
shall
verify
the
authenticity of such computerized copy of the
order from the official website of High Court
Allahabad and shall make a declaration of such
verification in writing.

60. It is clarified that all the
observations contained in this order are
only for disposal of this anticipatory bail
application and shall not affect the trial
proceedings in any manner.
----------
(2020)03-05ILR A1311
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Crl. Misc. Ist Bail Application No. 3515 of 2020

Shailendra Kumar Gupta @ Shailu
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Rajiv Lochan Shukla, Sri Pramod Kumar
Dwivedi

Counsel for the Opposite Party:
A.G.A.

A. Criminal law- The Narcotic Drugs and
Psychotropic Substance Act,1985-Sections
8/21-Code of Criminal Procedure,1973Section
439
-application-rejectionrecovery of 1 kg. 17 gram of charas from
the possession of applicant which is above
commercial quantity-applicant prayed he
has been falsely implicated due to enmity
as a civil suit is pending between the
parties- a case of public gambling also got
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
registered against the applicant-lower
court didnot consider the applicant bail
due to applicant's past antecedents.
(Para 3 to 26)

Perusal of the FIR and statements recorded of the
informant and other policemen, site plan of the place
of occurrence reveals that an amount of 1 kilogram
17 gram charas was recovered form the applicant in
his right hand in broad daylight at 4 pm in crowded
area.(Para 20)

The application is rejected. (E-6)

List of Cases Cited:-

1. St. Of Ker. Vs. Rajesh ,Crl. Appeal no. 154-157 of
2020

2. Sujit Tiwari Vs. St. Of Guj. & anr., Crl. Appeal No.
1897 of 2019

3. Sanjay Chandra Vs. CBI (2012) 1 SCC 40

4. Shiv Shanker Kesari Vs. UOI (2007) 7 SCC 798

5. St. Of M.P. Vs. Kajad (2001) 7 SCC 673

6. Ram Samujh & anr. Vs. UOI (1999) 9 SCC 429

7. Thamisharasi Vs. UOI (1995) 4 SCC 190

8. Dataram Singh Vs. St. Of U.P. & Anr. (2018) 3 SCC
22

9. Arif Khan @ Agha Khan Vs. St. Of UK AIR (2018)
SC 2123

10. Narcotics Control Bureau Vs. Kishan Lal (1991) 1
SCC 705

11. Dr. Bipin Shantilal Panchal Vs. St. Of Guj. (1996) 1
SCC 718

12. Manoj Vs. St. Of M.P. (1999) 3 SCC 715

13. Babua Vs. St. Of Oris. (2001) 2 SCC 566

14. Rattan Mallik Vs. UOI (2009) 2 SCC 624

15. Baldev Singh Vs. St. Of Punj.(1999) 6 SCC 172

16. VijaySingh Chandubha Jadeja Vs. St. Of Guj.
(2011) 1 SCC 609

17. Harjit Singh Vs. St. Of Punj.(2011) 4 SCC 441

18. E. Micheal Raj (2008) 5 SCC 161

19. Satpal Singh Vs. St. Of Punj.(2018) 104 ACC 307

(Delivered by Hon'ble Jayant Banerji, J.)

1. This application has been filed to
release the applicant on bail in case crime
no. 574 of 2019, under Section 8/21 of the
Narcotic
Drugs
and
Psychotropic
Substance Act, 19851, P.S. Shahpur,
District Gorakhpur. An amount of 1 Kg 17
gm of charas is alleged to have been
recovered from the possession of the
applicant which is above the commercial
quantity.

2. Notice of the present bail
application was served on the Government
Advocate on 8.1.2020. However, no
counter affidavit has been filed.

3. When the matter was being
heard on 4.2.2020, learned Additional
Government Advocate (AGA) placed
before the court a recent judgement of
the Supreme Court dated 24.01.2020
passed in Criminal Appeal No. 154157 of 2020 (State of Kerala Vs.
Rajesh)2 to contend that in view of the
provisions of Section 37(1)(b)(ii) of the
NDPS Act, since the offence involves
recovery of the narcotic drug in excess
of the commercial quantity, the Court is
required to record its satisfaction that
there
are
reasonable
grounds
for
believing that the applicant is not guilty
of such offence and that the applicant is
not likely to commit any offence while
on bail.
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1313

4. Apart from the learned counsel for
the parties, the Court also requested Shri
Imran Ullah and Dr. Arun Srivastava,
learned counsel to assist the Court as
amicus curie on the legal issues involved in
the matter. On the date fixed, the case was
heard at length.

5. Learned counsel for the applicant,
Shri Rajeev Lochan Shukla, has relied upon
a judgement of the Supreme Court in the
case of Sujit Tiwari Vs. State of Gujarat
and Another in Criminal Appeal No. 1897
of 2019, whereby the bail application filed
by one of the accused who was charged
under the NDPS Act in respect of the
recovery of 1445 Kg of heroin was allowed
after imposing stringent conditions. It is
contended that by the learned counsel that
the
Apex
Court
took
note
of
the
prosecution case at the highest and
observed that the appellant was aware that
his brother was indulging in some illegal
activity because obviously such huge
amount of money of Rs. 50 crores cannot
be made otherwise. It is stated by Shri
Shukla that in that case before the Supreme
Court the provisions of Section 37 of the
N.D.P.S. Act were specifically considered.
While referring the judgement of the
Supreme Court in State of Kerala, Shri
Shukla has contended that the Apex Court
has dealt with the expression "reasonable
grounds" appearing in Section 37 of the Act
as meaning something more than prima
facie grounds. He contends that the
expression
"reasonable
grounds"
contemplates substantial probable causes
for believing that the accused is not guilty
of the alleged offence. It is contended that
"reasonable grounds" appearing in Section
37 of the Act would not entail a finding to
be recorded by the Court regarding its
satisfaction beyond reasonable doubt but to
an extent more than prima facie. It is
contended that the Court while exercising
its jurisdiction for grant of bail or otherwise
has to take into account the overall facts of
the case and the compliance of the
mandatory provisions of the N.D.P.S. Act
before coming to a finding. The contention
is that this Court may, accordingly, grant
bail in view of the facts of the present case.

6. Shri Imran Ullah, learned counsel
(amicus curie) while referring to paragraph
nos. 7 and 22 of the judgement of the Apex
Court in the case of State of Kerala has
contended that the Court is required to
record a finding mandated under Section 37
of the N.D.P.S. Act which is a sine qua non
for grant of bail to the accused under the
N.D.P.S. Act. With regard to bail, learned
counsel has referred to the judgements of
the Apex Court in the matters of Sanjay
Chandra
Vs.
Central
Bureau
of
Investigation3, Union of India Vs. Shiv
Shanker Kesari4, State of M.P. Vs.
Kajad5, Union of India Vs. Ram Samujh
and another6, Union of India Vs.
Thamisharasi7 and Dataram Singh Vs.
State of Uttar Pradesh and another8 . It
is contended by the learned counsel that
refusal of bail is the rule and its grant an
exception in view of Section 37(1)(b)(ii).
Liberal approach in the matter of bail under
the NDPS Act is uncalled for. He contends
that Section 37 of the NDPS Act starts with
a non-obstante clause and therefore, the
provisions of Section 437/439 of the Code
of Criminal Procedure would not be
applicable with regard to a person accused
of an offence punishable under Section 19
or Section 24 or Section 27A and also for
offences involving commercial quantity of
contraband.
The
words
"reasonable
grounds" also appear in clause (i) of
Section 437 of Cr.P.C. but the authority
given to a High Court or a Court of Session
under clause (a) of Section 439 permitting
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
release on bail of any person accused of an
offence would be curtailed in view of the
stringent provision of Section 37(1)(b)(ii)
of
the
NDPS
Act.
The
limitations
prescribed under the NDPS Act on granting
of bail are in addition to the limitations
under Cr.P.C. or any other law for the time
being in force. It is further contended 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. With reference to the
phrase "reasonable grounds for believing",
the learned counsel has referred to
paragraph no. 37 of the judgement of the
Supreme Court in the case of Sanjay
Chandra (supra) to contend that the
legislature
has
used
the
the
words
'reasonable grounds for believing' instead
of 'the evidence' which means the court
dealing with the grant of bail can only
satisfy itself as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge.

7. Dr. Arun Srivastava, learned
counsel has referred to the judgement of the
Supreme Court in the case of Arif Khan @
Agha Khan Vs. State of Uttarakhand9.
In that case the Supreme Court has held
that compliance of the requirements of
Section 50 of the NDPS Act are mandatory
and therefore the provisions of Section 50
have to be strictly complied with. It is
contended that where, in case the applicant
is not informed of his right under Section
50 of the NDPS Act, conviction of the
accused would be vitiated.

8. Section 37 of the NDPS Act, as
substituted by Act 2 of 1989 and as further
amended by Act 9 of 2001, is 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."

SUMMARY
OF
THE
PRINCIPLES WITH REGARD TO
BAIL UNDER THE NDPS ACT WITH
REFERENCE
TO
A
PERSON
ACCUSED under Section 19 or Section
24
or Section
27A and also
for
OFFENCES
INVOLVING
'COMMERCIAL QUANTITY'

9. It is no longer res nova that in view
of Section 37(1)(b) of the NDPS Act,
refusal of bail is the rule and its grant an
exception and, that too after, inter alia,
providing
the
Public
Prosecutor
an
opportunity to oppose the application for
such release. The law with regard to grant
of bail in matters under the NDPS Act is
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1315
quite well settled. However, some of the
principles may be summarized as follows:-

i) Powers of the High Court to
grant bail under section 439 Cr.P.C are
subject the limitations contained in
Section 37 of the NDPS Act.

While considering the scope of
Section 439 of the Cr. P.C. with respect to
Section 37 of the NDPS Act, the Supreme
Court, in the case of Narcotics Control
Bureau v. Kishan Lal10, looked into the
provision of S.37 of the NDPS Act as
amended in the year 1989 and held:

"For all the aforesaid reasons we
hold that the powers of the High Court to
grant bail under Section 439 are subject to
the limitations contained in the amended
Section 37 of the NDPS Act and the
restrictions placed on the powers of the
court under the said section are applicable
to the High Court also in the matter of
granting bail".

ii) The total period of custody
under the NDPS Act of the accused
permissible during investigation is to be
found in Section 167 CrPC read with
Section 36A of the NDPS Act.

In the case of Union of India Vs.
Thamisharasi7, the Supreme Court held
that Section 37 of the NDPS Act does not
exclude the application of the proviso to
sub-section (2) of Section 167 of the Code,
even in respect of persons who are accused
of offences under the NDPS Act, and
observed as follows:

"13. Accordingly, provision in
Section 37 to the extent it is inconsistent
with Section 437 of the Code of Criminal
Procedure supersedes the corresponding
provisions in the Code and imposes
limitations on granting of bail in addition to
the limitations under the Code of Criminal
Procedure as expressly provided in subsection (2) of Section 37. These limitations
on granting of bail specified in sub-section
(1) of Section 37 are in addition to the
limitations under Section 437 of the Code
of Criminal Procedure and were enacted
only for this purpose; and they do not have
the effect of excluding the applicability of
the proviso to sub-section (2) of Section
167 CrPC which operates in a different
field relating to the total period of custody
of
the
accused
permissible
during
investigation.

14. In our opinion, in order to
exclude the application of the proviso to
sub-section (2) of Section 167 CrPC in
such cases an express provision indicating
the contrary intention was required or at
least some provision from which such a
conclusion
emerged
by
necessary
implication. As shown by us, there is no
such provision in the NDPS Act and the
scheme of the Act indicates that the total
period
of
custody
of
the
accused
permissible during investigation is to be
found in Section 167 CrPC which is
expressly applied. The absence of any
provision inconsistent therewith in this Act
is significant."

However, after insertion of S.
36A by the Act 2 of 1989 and its
substitution by Act 9 of 2001, sub-section
(4) of Section 36A reads as under:

(4) In respect of persons accused
of an offence punishable under section 19
or section 24 or section 27A or for offences
involving
commercial
quantity
the
references in sub-section (2) of section 167
of the Code of Criminal Procedure, 1973 (2
of 1974) thereof to "ninety days", where
they occur, shall be construed as reference
to "one hundred and eighty days":

Provided that, if it is not possible
to complete the investigation within the
said period of one hundred and eighty days,
the Special Court may extend the said
period up to one year on the report of the
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
Public Prosecutor indicating the progress of
the investigation and the specific reasons
for the detention of the accused beyond the
said period of one hundred and eighty days.

iii) After the charge-sheet is
filed, an accused under the NDPS Act
cannot exercise the right to be released
on bail on failure of the prosecution to
file the charge-sheet within the time
prescribed. But on the other hand if he
exercises the right within the time
allowed by law and is released on bail
under such circumstances, he cannot be
rearrested on the mere filing of the
charge-sheet.

In
the
case
of
Dr.
Bipin
Shantilal Panchal Vs. State of Gujarat11,
the Supreme Court while considering an
appeal against rejection of bail of the
appellant who was accused of offences
under the NDPS Act, observed as follows:

"4. ..........Therefore, if an accused
person fails to exercise his right to be
released on bail for the failure of the
prosecution to file the charge-sheet within
the maximum time allowed by law, he
cannot contend that he had an indefeasible
right
to
exercise
it
at
any
time
notwithstanding the fact that in the
meantime the charge-sheet is filed. But on
the other hand if he exercises the right
within the time allowed by law and is
released on bail under such circumstances,
he cannot be rearrested on the mere filing
of the charge-sheet..................."

iv) Detention made as a sequel
to the arrest would become unlawful
beyond the period of 24 hours without
the order of a Magistrate.

In the case of Manoj Vs. State of
Madhya Pradesh12 the appellant was
arrested
in
connection
with
a
case
involving NDPS Act registered by police in
Rajasthan. Later, in another case under the
NDPS Act in Madhya Pradesh involved the
appellant who was recorded as arrested.
Though an order granting bail was passed
by the Rajasthan High Court, the appellant
did not execute the bond since his arrest in
Madhya Pradesh case became a stonewall
for
his
release
from
custody.
His
application for bail before the Madhya
Pradesh High Court, after the Sessions
Judge rejected his bail application, was
rejected. After 90 days of his arrest in the
Madhya Pradesh case, he moved an
application before the Special Judge, Kota
(Rajasthan) for bail under the proviso to S.
167 (2) of the Cr. P.C as no charge-sheet
was filed in the Madhya Pradesh case. But
the Special Judge rejected the application
saying that he was never produced before
the court after formal arrest and no order as
regards the first remand was ever passed
and therefore, the question of completion of
investigation within a period of 90 days
does not arise. The High Court also did not
enlarge the applicant on bail. The Supreme
Court observed as follows:

"12. If the police officer is
forbidden from keeping an arrested person
beyond twenty-four hours without order of
a Magistrate, what should happen to the
arrested person after the said period? It is a
constitutional mandate that no person shall
be deprived of his liberty except in
accordance with the procedure established
in law. Close to its heels the Constitution
directs that the person arrested and detained
in custody shall be produced before the
nearest magistrate within 24 hours of such
arrest. The only time permitted by Article
22 of of the Constitution to be excluded
from the said period of 24 hours is "the
time necessary for going from the place of
arrest to the court of the Magistrate". Only
under two contingencies can the said
direction be obviated. One is when the
person arrested is an "enemy alien". Second
is when the arrest is under any law for
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1317
preventive detention. In all other cases the
Constitution has prohibited peremptorily
that "no such person shall be detained in
custody beyond the said period without the
authority of a Magistrate".

13. When the State of Madhya
Pradesh, whose police made the arrest of
the appellant in connection with the M.P.
case on 7-8-1998, admitted that after arrest
he was not produced before the nearest
Magistrate within 24 hours, its inevitable
corollary is that detention made as a sequel
to the arrest would become unlawful
beyond the said period of 24 hours."

v) Liberal approach in the
matter of bail under the NDPS Act is
uncalled for.

Then, in the case of State of M.P.
Vs.
Kajad5,
the Supreme
Court
was
considering an appeal against an order of the
High Court allowing the second bail application
of the respondent who was accused under the
NDPS Act (as it stood prior to its amendment in
the year 2001). The Supreme Court held:

"5. .............. Negation of bail is the
rule and its grant an exception under sub-clause
(ii) of clause (b) of Section 37(1). For granting
the bail the court must, on the basis of the
record produced before it, be satisfied that there
are reasonable grounds for believing that the
accused is not guilty of the offences with which
he is charged and further that he is not likely to
commit any offence while on bail. It has further
to be noticed that the conditions for granting the
bail, specified in clause (b) of sub-section (1) of
Section 37 are in addition to the limitations
provided under the Code of Criminal Procedure
or any other law for the time being in force
regulating the grant of bail. Liberal approach in
the matter of bail under the Act is uncalled for.

6. .. . . . .

7. In the instant case, the learned
Single Judge of the High Court has granted the
bail on his own sense of observation regarding
the course of conduct adopted by the accused at
the time of his interception and arrest. Merely
because the accused was found to be continuing
to hold bag containing opium during the period,
the raiding party searched him in accordance
with the provisions of the Act, the learned
Judge was not justified to conclude "it is by
itself unnatural". How the learned Judge
concluded that the conduct of the accused or
raiding party were unnatural is not discernible
from
the
impugned
order.
A
person,
apprehended by a raiding party, who is sought
to be searched is supposed to hold the goods in
his possession unless he opts to flee from the
place of occurrence or is advised to throw the
container in which the offending substance is
contained. Section 37 of the Act has been
referred to in the impugned order not for the
purposes of showing of its compliance but to
justify the passing of an apparently wrong
order. If, besides referring to Section 37 of the
Act, the learned Judge would have referred to
its provisions, he would not have fallen a prey
to the ulterior designs of the respondentaccused."

vi) On merits, no person shall
be granted bail unless the two conditions
are satisfied, that is, 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.

The Supreme Court in the case of
Union of India Vs. Shiv Shanker
Kesari4, while considering an appeal
against bail which was granted to the
respondent by this Court on the ground that
the recovery was not from the exclusive
possession of the accused-respondent and
other members of the family are involved
in the case and that the respondent had no
criminal history, observed as follows:

"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
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.
........
........
........

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
and there should also exist some materials
to come to such a conclusion."

Earlier, in the case of Babua v.
State of Orissa13, the Apex Court held:

"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 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."
(emphasis by Court)

vii) Even in a criminal appeal
against the order of conviction under the
NDPS Act, the mandatory provisions of
Section 37 of the Act cannot be ignored
while suspending the sentence.

The Supreme Court in the case of
Union of India v. Rattan Mallik14
observed as follows:

"10. As already noted, in the
present case, the respondent has been
convicted and sentenced for the offences
under the NDPS Act and therefore, while
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1319
dealing with his application for grant of
bail, in addition to the broad principles to
be applied in prosecution for the offences
under the Penal Code, 1860 the relevant
provision in the said special statute in this
regard had to be kept in view.

................

................

15. .............. It is evident from the
afore-extracted
paragraph
that
the
circumstances which have weighed with
the learned Judge to conclude that it was a
fit case for grant of bail are: (i) that nothing
has been found from the possession of the
respondent; (ii) he is in jail for the last three
years, and (iii) that there is no chance of his
appeal being heard within a period of seven
years.
In
our
opinion,
the
stated
circumstances may be relevant for grant of
bail in matters arising out of conviction
under the Penal Code, 1860, etc. but are not
sufficient
to
satisfy
the
mandatory
requirements as stipulated in clause (b) of
sub-section (1) of Section 37 of the NDPS
Act.

16. Merely because, according to
the learned Judge, nothing was found from
the possession of the respondent, it could
not be said at this stage that the respondent
was not guilty of the offences for which he
had been charged and convicted. We find
no substance in the argument of learned
counsel for the respondent that the
observation of the learned Judge to the
effect that "nothing has been found from
his possession" by itself shows application
of
mind
by
the
learned
Judge
tantamounting to "satisfaction" within the
meaning of the said provision. It seems that
the provisions of the NDPS Act and more
particularly Section 37 were not brought to
the notice of the learned Judge."

viii) The seriousness of cases
under the NDPS Act have to be viewed
like this 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 in causing death or in
inflicting death-blow to a number of
innocent
young
victims,
who
are
vulnerable: it causes deleterious effects
and deadly impact on the society.

The Supreme Court in the case of
Union of India Vs. Ram Samujh and
another6 has observed as follows:

"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 murder
case, the accused commits murder of one or
two persons, while those persons who are
dealing in narcotic drugs are instrumental
in causing death or in inflicting death-blow
to a 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
contention with regard to punishment under
NDPS Act, has succinctly observed about
the adverse effect of such activities in
Durand Didier v. Chief Secy., Union
Territory 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
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
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, the 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, the
Parliament has 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 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 respondentaccused on bail. Instead of attempting to
take a holistic view of the harmful socioeconomic consequences and health hazards
which
would
accompany
trafficking
illegally in dangerous drugs, the Court
should implement the law in the spirit with
which
the
Parliament,
after
due
deliberation, has amended."

ix) Compliance or otherwise of
Section 50 of the NDPS Act is a factual
issue that can only be considered during
trial.

The
Supreme
Court
in
the
Constitution Bench judgments in the
matters of State of Punjab v. Baldev
Singh15
and
Vijaysinh
Chandubha
Jadeja v. State of Gujarat16 has observed
that compliance of Section 50 of the NDPS
Act can be looked into during trial.
Therefore, this aspect may not be looked
into at the stage of grant of bail.

x) Compliance or otherwise of
Section 42 of the NDPS Act is also a
factual issue which can be considered
during trial.

A Constitution Bench of the
Supreme Court, in the matter of Karnail
Singh v. State of Haryana, while looking
into the mandate of Section 42 has
observed:

"35. In conclusion, what is to be
noticed is that Abdul Rashid [(2000) 2 SCC
513 : 2000 SCC (Cri) 496] did not require
literal compliance with the requirements of
Sections 42(1) and 42(2) nor did Sajan
Abraham [(2001) 6 SCC 692 : 2001 SCC
(Cri) 1217] hold that the requirements of
Sections 42(1) and 42(2) need not be
fulfilled at all. The effect of the two
decisions was as follows:

(a) The officer on receiving the
information [of the nature referred to in
sub-section (1) of Section 42] from any
person had to record it in writing in the
register concerned and forthwith send a
copy to his immediate official superior,
before proceeding to take action in terms of
clauses (a) to (d) of Section 42(1).

(b) But if the information was
received when the officer was not in the
police station, but while he was on the
move either on patrol duty or otherwise,
either by mobile phone, or other means,
and the information calls for immediate
action and any delay would have resulted in
the goods or evidence being removed or
destroyed, it would not be feasible or
practical to take down in writing the
information given to him, in such a
situation, he could take action as per
clauses (a) to (d) of Section 42(1) and
thereafter, as soon as it is practical, record
the information in writing and forthwith
inform the same to the official superior.
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1321

(c)
In
other
words,
the
compliance with the requirements of
Sections 42(1) and 42(2) in regard to
writing down the information received and
sending a copy thereof to the superior
officer, should normally precede the entry,
search and seizure by the officer. But in
special circumstances involving emergent
situations, the recording of the information
in writing and sending a copy thereof to the
official superior may get postponed by a
reasonable period, that is, after the search,
entry and seizure. The question is one of
urgency and expediency.

(d) While total non-compliance
with requirements of sub-sections (1) and
(2) of Section 42 is impermissible, delayed
compliance with satisfactory explanation
about
the
delay
will
be
acceptable
compliance with Section 42. To illustrate,
if any delay may result in the accused
escaping or the goods or evidence being
destroyed or removed, not recording in
writing the information received, before
initiating action, or non-sending of a copy
of such information to the official superior
forthwith, may not be treated as violation
of Section 42. But if the information was
received when the police officer was in the
police station with sufficient time to take
action, and if the police officer fails to
record in writing the information received,
or fails to send a copy thereof, to the
official superior, then it will be a suspicious
circumstance being a clear violation of
Section 42 of the Act. Similarly, where the
police
officer
does
not
record
the
information at all, and does not inform the
official superior at all, then also it will be a
clear violation of Section 42 of the Act.
Whether there is adequate or substantial
compliance with Section 42 or not is a
question of fact to be decided in each case.
The above position got strengthened with
the amendment to Section 42 by Act 9 of
2001.

It, therefore, is reflected in this
judgement that compliance of Section 42 is
a question of fact. Thus, it is to be looked
into by the Courts during trial and may not
be looked into for consideration of a bail
application.

xi) Whether possession of the
drug or substance is below or above the
commercial quantity, has to be viewed in
light
of
Note-4
appended
to
the
Notification of the Central Government
specifying
small
quantity
and
commercial quantity.

Note 4 was inserted at the foot of
the Notification of the Central Government
specifying small and commercial quantity
by means of S.O. 2941(E) dated 18th
November, 2009 which reads as follows:-

"The quantities shown in column
5 and column 6 of the Table relating to the
respective drugs shown in column 2 shall
apply to the entire mixture or any solution
or any one or more narcotic drugs or
psychotropic substances of that particular
drug in dosage form or isomers, esters,
ethers and salts of these drugs, including
salts of esters, ethers and isomers, wherever
existence of such substance is possible and
not just its pure drug content."

In the case of Harjit Singh v.
State of Punjab17, while distinguishing
the case of E. Micheal Raj18, and
considering the aforesaid Note 4, the
Supreme Court held:

"13. Notification dated 18-112009 has replaced the part of the
Notification dated 19-10-2001 and reads as
under:

"In the Table at the end after Note
3, the following Note shall be inserted,
namely:

(4) The quantities shown in
Column 5 and Column 6 of the Table
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
relating to the respective drugs shown in
Column 2 shall apply to the entire mixture
or any solution or any one or more narcotic
drugs or psychotropic substances of that
particular drug in dosage form or isomers,
esters, ethers and salts of these drugs,
including salts of esters, ethers and
isomers, wherever
existence of such
substance is possible and not just its pure
drug content."

14. Thus, it is evident that under
the
aforesaid
notification,
the
whole
quantity of material recovered in the form
of mixture is to be considered for the
purpose of imposition of punishment.
However, the submission is not acceptable
as it is a settled legal proposition that a
penal provision providing for enhancing the
sentence does not operate retrospectively.
This amendment, in fact, provides for a
procedure
which
may
enhance
the
sentence. Thus, its application would be
violative of restrictions imposed by Article
20 of the Constitution of India. We are of
the view that the said Notification dated 1811-2009 cannot be applied retrospectively
and therefore, has no application so far as
the instant case is concerned.

......

21. In the instant case, the
material recovered from the appellant was
opium. It was of a commercial quantity and
could
not
have
been
for
personal
consumption of the appellant. Thus the
appellant being in possession of the
contraband substance had violated the
provisions of Section 8 of the NDPS Act
and was rightly convicted under Section
18(b) of the NDPS Act. The instant case
squarely falls under clause (a) of Section
2(xv) of the NDPS Act and clause (b)
thereof is not attracted for the simple
reason that the substance recovered was
opium in the form of the coagulated juice
of the opium poppy. It was not a mixture of
opium with any other neutral substance.
There was no preparation to produce any
new substance from the said coagulated
juice.