Court may grant bail application for offenses under Section 37 of the NDPS Act only after considering the prima facie merits of the appeal: Supreme Court of India
Section 37 of the NDPS Act contains stringent requirements before an application for bail can be allowed. The Courts can allow a bail application only if 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. This auspicious judgment was recently passed by the Supreme Court of India in the matter of THE STATE (GNCT OF DELHI) NARCOTICS CONTROL BUREAU V LOKESH CHADHA [CRIMINAL APPEAL NO 257 OF 2021] by Honourable Justice Dr Dhananjaya Y Chandrachud. This appeal arises from the judgment of High Court of Delhi by which the application filed by the respondent seeking suspension of sentence under Section 389(1) of the Code of Criminal Procedure 1973 was allowed. The respondent was convicted under Sections 23(c) and 25A of the Narcotic Drugs and Psychotropic Substances Act 1985 and was sentenced to suffer rigorous imprisonment for ten years under Section 23(c) and for three years under Section 25A.  The facts of the case are, on 2 December 2015, the IO of the Narcotics Control Bureau, Delhi Zonal Unit received a phone call from DHL Courier regarding two parcels that were lying in their office and were suspected to contain narcotic drugs. When the two parcels were seized, 325 grams of heroin and 390 grams of pseudoephedrine was found in them.  The parcels were booked to a foreign destination, at the behest of a foreign national, by the co-accused who was an employee of the respondent and the respondent himself is a proprietor of the courier agency which had accepted the parcels initially for booking from the foreign national.  Consequently, the Special Judge, came to the conclusion that the offence stood established as against the respondent but the benefit of doubt was granted to the co-accused on the ground that he was only an employee who was acting at the behest of the respondent. An appeal has been filed before the High Court of Delhi by the respondent for the suspension of
the sentence which was granted.  The Court observed that “Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. Where the trial has ended in an order of conviction, the High Court, when a suspension of sentence is sought under Section 389(1) of CrPC, must be duly cognizant of the fact that a finding of guilt has been arrived at by the Trial Judge at the conclusion of the trial. This is not to say that the High Court is deprived of its power to suspend the sentence under Section 389(1) of CrPC. The High Court may do so for sufficient reasons which must have a bearing on the public policy underlying the incorporation of Section 37 of the NDPS Act.” The Court relied on Preet Pal Singh v State of Uttar Pradesh to state that, “The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and the High Court unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) of CrPC was established. The order granting suspension of sentence under Section 389(1) of CrPC is unsustainable and would accordingly have to be set aside.” 
Writ Petitionwere wrongly shifted to open category on different cadre i.e. PAC and Fireman without actually changing their cadre as they are all working on the said post for last 3 years. Had the aforesaid 958 seats were not wrongly overlapped then the Petitioners would have made their place in the list published on 11.11.2019 by the Board. II. Because admittedly the Respondents had filled up only 1650 seats out of 2016 seats meant for male general category candidates in various select list till date in Constable PAC Post and 446 seats out of 1038 seats meant for male general category candidates in various select list till date in Constable Fireman Post.” The facts leading to the filing of this petition in brief are as under: A) By issuing an advertisement on 20.06.2013 selection process was undertaken to fill up 41610 posts of Police ConstablesFireman]. The petitioners had participated in the selection process as candidates of General Category. Writ PetitionAfter the requisite examinations results were declared on 16.07.2015 in which 38315 candidates were successful. Thus as on that date there were vacancies which were not filled as no suitable candidates were available. C) In Saket Kumar and ors. Vs. State of U.P. and Ors.1 the High Court of Judicature at Allahabad was concerned with the process of selection for Sub Inspectors in U.P. Police which process was going on simultaneously with the instant selection. The High Court dealt with the issue where the candidates had used blades or whiteners while answering their answer papers of the main examination. By its order dated 29.05.2015 the High Court had disqualified all such candidates and directed that their names be deleted from the selection list. In the appeal arising therefrom this Court in its decision in Hanuman Dutt Shukla and Ors. Vs. State of U.P. and 1 2015 SCC OnLine Allahabad 1250 Writ PetitionThe same principles were adopted in the selection process for Police Constables and consequently the candidates who had used blades or whiteners were considered in the instant process of selection. The selection list was re worked and it was found that 216 SCC 447 Writ Petition4 2018ADJ 37 : Writ C. No. 34116 Writ PetitionNo. 20015 of 2018 issued following directions: “It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed: A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly accordance with law. B) The State shall follow the principle of reservation while filling up these 2312 C) While filling up these vacancies the State shall adhere the minimum required qualifying marks as devised during the process of selection but subject to this the State shall consider all eligible candidates and go strictly in order of merit. D) The State shall before the next date of hearing shall file a list of all the selected It is also accepted that apart from these 2312 vacancies there are still 982 vacancies to be filled up in the original selection.” Writ PetitionTherefore further process of selection for 32955 posts was undertaken and the results were declared on 11.11.2019. The breakup of said 3295 posts was as under: Category Civil PAC Fireman Total H) In the affidavit of compliance filed on behalf of the State Government following details were submitted: “E. Details of result of selected 3295 candidates as per Hon’ble Supreme Court’s order In compliance of above order of Hon’ble Court following lists and details of last selected candidates are attached herewith. I) List 1 candidates selected in open category This list contains a) The names of candidates who have already been selected in their respective vertical category 5 Writ Petitionbut presently find their positions in open category after redrawing the merit on the basis of their merit irrespective of their social category and gender. b) New candidates purely on the basis of their merit irrespective of their social category. The composition of list as follows A) Already selected candidates OBC SC ST B) Now selected candidates Male Gen. Male Gen. DFF Female Gen. Female Gen. DFF Total Male Total Female Grand Total A copy of the List I is annexed hereto and marked as Annexure A 1 F. List 2 candidates selected in OBC category 1849Since 1118 candidates belonging to OBC category have already been selected and find their position in present open category list due to their higher merit hence 1118 unselected OBC candidates have been selected in lieu of selected candidates and 731 candidates have been selected afresh as against their respective 731 vacancies. It is submitted that this list contains 1849 names. Writ PetitionSince 132 candidates belonging to SC category have already been selected and find their position in present open category list due to their higher merit so 132 unselected SC candidates have been selected in lieu of selected candidates and 601 candidates have been selected afresh as against their respective 601 vacancies. It is submitted that this list contains 733 names. A copy of the List III is annexed hereto and marked as Annexure A 3 H. List IV candidates selected in ST category 59 Since 02 candidates belonging to ST category have already been selected and find their position in present open category list due to their higher merit so 02 unselected ST candidates have been selected in lieu of selected candidates and 57 candidates have been selected afresh as against their respective 57 vacancies. It is submitted that this list contains 59 names. A copy of the List IV is annexed hereto and marked as Annexure A 4” The present Writ Petition has been filed submitting inter alia that certain candidates coming from ‘Reserved Categories’ who were initially selected against Reserved Categories’ seats were now shown against the Writ Petitionbut depending on their merit were found entitled to be put in ‘Open Category’ and secondly new candidates who were selected on the basis of their merit in various categories. Break up of 1906 candidates who were considered in ‘Open Category’ was thus clearly set out. 7. It is not the grievance of the petitioners that any candidate who had secured marks lesser than the petitioners has been selected. The challenge is to the shifting of candidates who were earlier selected against posts meant for reserved categories to the open category. 8. Selection in respect of 3295 posts was undertaken in accordance with the directions issued by this Court in Ashish Kumar Yadav and Ors. vs. State Writ Petitionand the State Government and its functionaries were obliged to go strictly in order of merit and apply the principle of reservation. With the availability of 3295 additional posts in the re working exercise if the candidates who were already selected against reserved posts were entitled to be considered against open category posts that exercise cannot be termed as illegal or invalid on any count. These 3295 posts were part of the same selection process initiated in 2013 for filling up 41610 posts and as such the adjustment was rightly done by the State. 9. We therefore see no merit in this petition which is accordingly Uday Umesh Lalit] S. Ravindra Bhat] Hrishikesh Roy] New Delhi March 16 2021. 