Under S.37 of NDPS Act, onus on petitioner to prove not guilty and not likely to commit offence on bail: Himachal Pradesh High Court

While deciding a bail petition under the Narcotic Drug and Psychotropic Substances Act, for a case under section 37 of the act, the onus is on petitioner to prove not guilty of offence and not likely to commit offence on bail. This judgment was passed in the case of Suman vs. State of Himachal Pradesh [Cr.M.P.(M). No. 580/2021] by a Single Bench consisting of Hon’ble Justice Jyostsna Rewal Dua.

The petitioner was seeking a normal bail under the section 21 and 29 of the Narcotic Drug and Psychotropic Substances Act, 1985 (NDPS Act). It was the prosecution’s case that while the police of patrolling they received information that sh. Aanchal and his family were selling heroin in their house and on a raid they would find high quantities of the same. on raid, Aanchal his two daughters, the petitioner and minor son was present. They found cash worth Rs. 1,74,000/- and a bag full of brown coloured substance which they found to be heroin. FIR was filed that petitioner was arrested along with family members. The petitioner contended that her living in the House was in normal course and it cannot lead to the inference that she was aware of the presence of contraband. It was also submitted that the petitioner will abide by all conditions and will not influence the prosecution witness or tamper with evidence.

The counsel for state argued that all the conditions under Section 37 of NDPS act was satisfied and therefore she is not eligible for bail. In order to avail bail two conditions must be satisfied by the petitioner- court should be satisfied that there are reasonable grounds for believing that petitioner is not guilty of such offence and petitioner is not likely to commit an offence while on bail. The Hon’ble Supreme Court held in the case of State of Kerala vs. Rajesh and Ors. [(2020) 12 SCC 122], the term “reasonable grounds” refers to more that prima- face grounds and contemplates substantial causes for believing that the accused is not guilty of the offence. Further in the case of Mohan Lal vs. State of Rajasthan [2015 6 SCC 222], the term “possession” was held to physical control and intent to exercise the said control.

The petitioner was a 20 year old student and had no employment. Her presence in the house was said to be out of natural course. Further, there was no evidence which suggested that the petitioner was in possession of the contraband or knew about the possession other than her presence in her house. On a cumulative assessment of the said facts and the above mentioned case laws, the Hon’ble High Court held that there were sufficient grounds to believe that the petitioner is not guilty of the offence.

These grounds were mentioned only with respect to bail under Section 37 of the NDPS act. The court believed that she was a student with no income and employment there is no scope for her to tamper the evidence or witness. The bail petition was allowed with certain conditions.

The Hon’ble Himachal Pradesh High Court held, “In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of bail.”

Click here to read Judgement.

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