2016 (2) TMI 1404 - HC - Indian Laws

Bail under NDPS and parity in coaccused bail grants; court rules parity not decisive, burden on accused

Parity in grant of bail cannot be the sole ground; parity is a relevant but not decisive factor and cannot be relied upon where an earlier coaccused's ... Grant of bail u/s 439 Cr. P.C. - parity in grant of bail - application of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - commercial quantity - twin conditions for bail u/s 37 - burden on accused to satisfy reasonable grounds of not guilty - decision rendered per incuriam - HELD THAT:- The well settled legal position appears to be that parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another coaccused has been granted bail. In the present case, a commercial quantity to the extent of about 20 Kg. of narcotic drug (Charas) was found to be carried in a vehicle of which the petitioner was also one of the occupant. The order by which benefit of bail has been granted to co-accused-Shri Ranupal does not indicate that while granting bail to him Section 37 of the Act was taken into consideration and learned Co-ordinate Bench was satisfied from the material available on record that the twin conditions contemplated in the aforesaid provision are satisfied. As per the requirement of Section 37 of the Act burden is on the petitioner to satisfy the Court that there are reasonable grounds to believe that he is not guilty of the offence for which he has been charged and that he is not likely to commit any offence if benefit of bail is extended to him but no material has been placed on record for the fulfillment of these conditions. In considered view that principle of parity cannot be applied in a case in which an order has been passed in favour of a similarly situated co-accused if the same has been passed overlooking the relevant provision of law. It is a fit case in which benefit of bail is to be granted to the petitioner at this stage of the proceedings. Consequently, the second application for grant of bail under Section 439 Cr. P.C. is, hereby, dismissed. Issues: Whether petitioner, charged under the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession and transport of charas of commercial quantity, is entitled to bail on the ground of parity with a co-accused who has been granted bail.Analysis: The factual matrix on record and charge-sheet shows recovery of charas of about 20 Kg from the vehicle occupied by petitioner and co-accused; Section 37 of the NDPS Act bars grant of bail in respect of offences involving commercial quantity unless the court is satisfied on materials that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit an offence while on bail. Judicial authorities require satisfaction on both cumulative conditions; parity is a factor of consideration but cannot override statutory requirements or permit reliance on an earlier bail order passed without taking Section 37 into account.Conclusion: Bail is not granted to the petitioner; the decision is against the petitioner and in favour of the Respondent.