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Himachal Pradesh High Court · body

2012 DIGILAW 511 (HP)

State of HP v. Moshe Molinas

2012-09-06

KULDIP SINGH

body2012
JUDGMENT Kuldip Singh, Judge (Oral). This revision is directed against the order dated 30.5.2012 passed by learned Special Judge, Fast Track Court, Kullu in bail application No. 28/2012. 2. The facts in brief are that FIR No. 94/2012 dated 14.5.2012 was registered at Police Station, Kullu, under sections 18, 20, 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act). The further facts are that on 14.5.2012, an information was received that a foreigner was residing in a rented accommodation of Manohar Lal and possessing contraband. The raid was conducted and during search of the accommodation of respondent 20.8 grams charas, 8.1. grams of opium, 11.5 grams of hashish oil, 3.7 MDM (A) and three tubes of LSD were recovered. The sampling and sealing were done. The respondent was arrested. 3. The respondent moved an application for bail, which was allowed on 30.5.2012 by Special Judge (Fast Track Court), Kullu. It has been stated that three tubes of LSD were seized in which LSD was more than the commercial quantity. On 9.7.2012, an application for cancellation of bail was filed after receipt of FSL report dated 27.6.2012 indicating that three tubes of LSD contained 6.992 grams contraband. The impugned order dated 30.5.2012 is wrong, illegal and suffers from material irregularity. The bail has been granted without waiting for the SFSL report. The observation in the impugned order that contrabands are not of commercial quantity is illegal, perverse and based on no material on record. The court was apprised of the SFSL report vide application dated 9.7.2012 that LSD seized from the respondent was of commercial quantity. The court below has failed to exercise the jurisdiction by not cancelling the bail granted to the respondent. 4. It has been stated that as per the Act, the small quantity of LSD is 0.002 grams, whereas the commercial quantity of LSD is 0.1 gram. The three tubes recovered from the respondent contained 6.992 grams LSD in liquid form. 5. The learned Special Judge has passed the impugned order in hot haste and failed to exercise the jurisdiction in accordance with law. It has not been appreciated that foreign and Indian currency was recovered from the respondent, which prima facie, establishes that respondent was a commercial dealer and was engaged in distribution of drugs. The respondent is involved with other foreign and local people in the illicit trade, which required investigation. It has not been appreciated that foreign and Indian currency was recovered from the respondent, which prima facie, establishes that respondent was a commercial dealer and was engaged in distribution of drugs. The respondent is involved with other foreign and local people in the illicit trade, which required investigation. The release of the respondent hampered the investigation. The order of bail has frustrated the entire investigation as to from where the respondent had managed to smuggle various contrabands. The submission has been made for setting-aside the impugned order and cancellation of bail granted to the respondent. 6. Heard Mr. Ankush Dass Sood, learned Addl. Advocate General. The respondent appeared in the court on 14.8.2012 and on that date he took an adjournment on the ground that he wanted to engage a counsel, but thereafter none appeared on behalf of the respondent nor respondent himself appeared. The record has been perused. 7. The bail application was filed on 22.5.2012. It was assigned to learned Special Judge (Fast Track Court), Kullu by learned Special Judge (Sessions Judge) Kullu and posted for 23.5.2012. The State filed the status report on 26.5.2012 and the impugned order was passed on 30.5.2012. In the status report, the contrabands recovered from the respondent have been stated alongwith Indian and foreign currency recovered from the room of respondent. It was stated that SFSL report was awaited. The submission was made for rejection of the bail application. 8. In the impugned order, it has been observed that respondent was found in possession of 20.8 grams of charas, 3.7 grams of MDM (A), three tubes of LSD contraband, 11.5 grams of charas oil and 8.1 grams of opium. It has been observed that these are less than the commercial quantity. The learned Additional Advocate General has strenuously submitted that sweeping observation of the learned Special Judge that all contrabands are less than commercial quantity is not only wrong but based upon no material before him more specifically with respect to 3 LSD tubes. 9. A copy of SFSL report in FIR No. 94/12 dated 14.5.2012, Police Station, Sadar, Kullu has been placed on record. The SFSL report refers to five parcels marked 1, 2, 3, 4 and 5 as charas, LSD, charas oil, opium and MDM respectively. 9. A copy of SFSL report in FIR No. 94/12 dated 14.5.2012, Police Station, Sadar, Kullu has been placed on record. The SFSL report refers to five parcels marked 1, 2, 3, 4 and 5 as charas, LSD, charas oil, opium and MDM respectively. In the report under parcel No. 2, it has been stated that on opening the sealed cloth parcel marked as 2, the exhibit stated as LSD was found in three poly vials covered with black cello tape in black film roll box with grey lid in stainless steel box with lid and the liquid stated as LSD in three poly vials was measured in graduated cylinder and the volume was found to be 9.20ml and on weighing it on electronic balance the weight was found to be 6.992g. The results of the examination in the report are that charas, LSD , charas oil, opium, MDMA were found in the respective parcels. 10. The learned Additional Advocate General has not seriously urged the quantity of charas, charas oil, opium and MDMA whether it was commercial quantity or small quantity. However, he has specifically urged that quantity of LSD recovered from the respondent was commercial quantity. He has relied SO 957 (E) dated 27.9.2001 notification specifying small quantity and commercial quantity and has submitted that as per Entry No. 133, LSD 0.002 grams is the small quantity and 0.1 gram is the commercial quantity, whereas from the respondent LSD weighing 6.992 grams was recovered which is a commercial quantity. Section 37 of the Act imposes restriction for releasing an accused on bail for offences involving commercial quantity. 11. The Special Judge (Fast Track Court) has wrongly assumed that all contrabands recovered from the respondent were not commercial quantity. The Special Judge should have ascertained the weight of LSD and for that purpose could direct the prosecution to place on record SFSL report. The record does not suggest that any opportunity was given to the prosecution to specifically place on record the SFSL report. The Special Judge without any material on record has wrongly observed that entire contrabands including LSD recovered from the respondent was not commercial. It appears Special Judge in haste has decided the bail application. He has not considered that bail applicant before him was a foreign national. The allegations against the respondent were serious. The Special Judge without any material on record has wrongly observed that entire contrabands including LSD recovered from the respondent was not commercial. It appears Special Judge in haste has decided the bail application. He has not considered that bail applicant before him was a foreign national. The allegations against the respondent were serious. The prosecution case is that huge foreign and Indian currency was recovered from the respondent. The case of the prosecution is that respondent was involved in commercial dealing of the drugs with foreign nationals and local people and that is why he was having huge foreign and Indian currency. 12. In Criminal Appeal No. 39 of 2011 on 30.9.2011, Division Bench of this Court after noticing Union of India vs. Abdul Momin (2005) 13 SCC 144 , has observed as follows:- “3. It is also learnt that imposition of lenient conditions in the grant of bail also have led to a situation of accused absconding. In the peculiar background of the State of Himachal Pradesh and particularly in a few districts, where there are large number of NDPS cases, the matter requires serious consideration and all the duty holders should put their heads together to achieve the objects for which NDPS Act has been introduced in the year 1985. The Supreme Court in Union of India Vs. Abdul Momin ( 2005 13 SCC 144 ) has cautioned that while handling offences where foreign nationals are involved or where offences committed in a State adjoining the national frontiers, Courts should be circumspect in granting bail. 4. In any case, in view of several such instances of impersonation, the High Court which is vested with the duty of supervision in the matter of administration of civil and criminal justice, should issue appropriate timely directions. Pending consideration of the matter on administrative side of the High Court, situation urgently calls for certain directions. Therefore, pending further instructions from the High Court, the following directions are issued:- (i) Whenever an accused is produced before the Court(s), thereshall be a photograph of the accused, which shall be affixed in the records Saja Slip and the photograph shall be attested by the Magistrate at the time of production of the accused. (ii) As far as sureties are concerned, in their cases also, photos of the persons identified should form part of the records. (ii) As far as sureties are concerned, in their cases also, photos of the persons identified should form part of the records. In the NDPS cases, where foreign nationals are involved, as cautioned by the apex Court, the Court(s) should be circumspect in granting bails and even if bails are to be granted also, stringent conditions should be imposed with a minimum of two solvent sureties and the bonds of the sureties should be for substantial amounts. Though it may not be proper for this Court to give any indication as to what should be the substantial amount, in view of the changing economic conditions, we are of the view that each surety should be having solvency to the tune of rupees fifty lacs, where commercial quantity is involved, and in all other cases, except the small quantity the solvency should be of a minimum amount of rupees five lacs and in small quantity, the bond shall be for a minimum amount of rupees one lac for each surety. In order to ascertain solvency, the trial Court(s) may look into the revenue papers with respect to title, ownership or any other proof with regard to their solvency. iii) Wherever Unique Identity Proof Cards (Aadhar Cards) have been issued, the identification by the said UIPC shall be insisted by the Courts and police officers/officials. The learned trial Court shall insist for identification of the accused whenever they are directed to be present in Court(s). 5. As far as the factual position in the instant case is concerned and in view of also such instances coming to the notice of this Court on impersonation, unauthorized handling of cases and even fake documents being produced before various forums, there will be a direction to the Director General of Police to conduct a proper inquiry and get the same conducted by a proper investigation. The facts of the instant case may be used as base material for the same. After conducting such an inquiry/investigation, a report thereof shall be furnished to this Court within two months. There shall also be inquiry with regard to genuineness of the passports of the foreign national, who are involved in NDPS cases. The Registry is directed to communicate a copy of this order to all the Judicial Officers in the State and the DGP for guidance.” 13. There shall also be inquiry with regard to genuineness of the passports of the foreign national, who are involved in NDPS cases. The Registry is directed to communicate a copy of this order to all the Judicial Officers in the State and the DGP for guidance.” 13. There is a direction to the Registry to communicate the copy of direction dated 30.9.2011 to all the Judicial Officers in the State. The Special Judge despite the above directions dated 30.9.2011 has not complied the said directions in letter and spirit while releasing the respondent on bail who is an accused under the Act. The Special Judge has exercised the jurisdiction wrongly, illegally in releasing the respondent on bail vide order dated 30.5.2012. The Special Judge has not considered the seriousness of the case and without any material he jumped to the conclusion that contrabands including LSD recovered from the respondent was not commercial. He failed to consider the implication of Section 37 of the Act. The Special Judge has not realised that respondent is a foreign national and bail bonds of rupees one lac with two sureties in the like amount for releasing the respondent on bail was not in consonance with the directions dated 30.9.2011 in Cr. Appeal No. 39 of 2011. 14. In the facts and circumstances of the case, the revision is allowed, order dated 30.5.2012 passed by Special Judge, Fast Track Court, Kullu in bail application No. 28/2012 is set-aside, the bail application filed by the respondent before the Special Judge, Fast Track Court, Kullu is dismissed. The respondent is directed to surrender immediately. The police shall take into custody the respondent forthwith in accordance with law. . 15. Before parting with the judgement and in view of the seriousness of the case, the Registrar General is directed to place a copy of this judgement before Hon’ble the Chief Justice for consideration.