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2014 DIGILAW 152 (HP)

Pankaj Sharma v. State of Himachal Pradesh

2014-03-05

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral). This petition under Section 439 Cr.P.C. for the grant of bail arises out of case FIR No. 7 of 2014 dated 25.1.2014 registered at Police Station, Sunni, District Shimla, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). 2. The petitioner has contended that he is a good character and has been arraigned as an accused with the object of injuring and humiliating him, by having him so arrested. It is also contended that nature and gravity of accusations is not so grave that the bail should be opposed by the respondent. It is also contended that bar of Section 437 (1) (ii) of Cr.P.C. shall not apply in the present case because the petitioner has never been convicted for any offence punishable with sentence of death or life or with imprisonment for a term of seven years or more. The antecedents of the petitioner are clean and cannot be termed as a habitual offender. There is no possibility of the petitioner fleeing from justice and he does not have any previous criminal history. 3. Notice of this petition was issued to the State of Himachal Pradesh. I have gone through the records of the case and find that the prosecution story proceeds in the following manner: “On the intervening night of 24/25.1.2014 at about 12.15 AM at place Gharat Nala, HC Suresh Kumar No.141, alongwith HHC Tek Singh No. 1141, C. Karan Singh No. 1388 and C. Ranjan No. 1387 were exercising their routine patrolling duty in government vehicle No. HP-07A-0727 when they detected a Maruti Car bearing registration No. CH-01X-8819. The vehicle was stopped on signal. The two occupants disclosed their names as Anil Kumar @ Anu and Kuldeep @ Kaku. During the intensive search of the vehicle, it was found that the accused persons were carrying one carton box carrying 120 bottles of Rexcof of 100 ml. There was also lying one cream colour bag containing 15 bottles of the same mark and quantity. Thus, in total these persons were carrying 135 bottles of Rexcof 100 ml and the name of company manufacturing the said product was mentioned as ‘Cipla’. These persons were asked to produce the valid permit or licence and they failed to do so. These 135 bottles of Rexcof containing 100 ml were taken into police custody vide separate memos. Thus, in total these persons were carrying 135 bottles of Rexcof 100 ml and the name of company manufacturing the said product was mentioned as ‘Cipla’. These persons were asked to produce the valid permit or licence and they failed to do so. These 135 bottles of Rexcof containing 100 ml were taken into police custody vide separate memos. During the investigation, the aforesaid two accused persons revealed that they had purchased these 135 bottles of Rexcof from Gautam Kumar and Pankaj, who are running a medical store at Oddi, Tehsil Kumarsain, District Shimla. On finding the information genuine, the investigating agency raided the medical store at Oddi and during search, Gautam Kumar and Pankaj were found to be in conscious and exclusive possession of 101 bottles of Rexcof containing 100 ml. They were also found in possession of 72 empty bottles of Rancof, 9 empty bottles of Rexcof, 3 empty bottles of Relexcof and Recof containing 100 ml each. Necessary formalities were completed by complying with the provisions of Sections 50, 55, 57 etc. by the investigating agency. FIR No. 7 of 2014 was registered on the basis of the statement of the complainant under Section 154 Cr.P.C.” 4.I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and perused the records of FIR No. 7 of 2014. 5.The learned counsel for the petitioner has strenuously argued that even as per the prosecution case the bail-petitioner was never found either in conscious or exclusive possession of 101 bottles of Rexcof containing 100 ml. or in possession of 72 empty bottles of Rancof, 9 empty bottles of Rexcof, 3 empty bottles of Relexcof and Recof measuring 100 ml. each. He further contended that there was no prohibition for him to store as many bottles of Rexcof, Relexcof, Recof or any other product containing ‘codeine’ so long, there was no violation of the provisions of the Drugs and Cosmetics Act, 1940 or the Narcotic Drugs and Psychotropic Substances Act, 1985. He further contended that even as per the notification specifying the small quantity and commercial quantity, the small quantity prescribed for codeine is 10 grams, while the commercial quantity is 1 Kg. Therefore, the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, are not attracted to the facts of the present case. He further contended that even as per the notification specifying the small quantity and commercial quantity, the small quantity prescribed for codeine is 10 grams, while the commercial quantity is 1 Kg. Therefore, the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, are not attracted to the facts of the present case. According to him, the quantity of codeine phosphate, if calculated, works out to hardly about 20 grams and, therefore, since the quantity of codeine phosphate was as good as small quantity, his client should be released on bail. 6. On the other hand, Mr. Virender Kumar Verma, learned Additional Advocate General contended that irrespective of the quantity, the bail petitioner deserves no sympathy because the petitioner alongwith his co-accused was responsible for disbursing and distributing this drug among the school children and other vulnerable sections of the society which was a menace to the society. He further contended that the petitioner belonged to a gang of mafia involved in selling of so called ‘medicine’ which in fact was a potent ‘drug’ containing codeine phosphate. 7.It is settled law that while granting bail, the Court has to keep in mind the nature of accusation, evidence in support thereof, severity of punishment in the event of his conviction; the other factor is character, behaviour, means and standing of the accused. The Court has also to keep in view the reasonable possibility of securing the presence of the accused in the trial, circumstances which are peculiar toe the accused, reasonable apprehension of the witnesses, above all, the larger interest of the public and the State. 8. The Court cannot be unmindful of the facts that the detailed examination of the evidence and elaborate documentation of the case is to be avoided, while dealing with the bail application. There is no gain saying that the Court still has to be satisfied regarding the existence of prima facie case or not. 9.From the records of the investigation, the complicity of the bail petitioner at this stage cannot be equated with those of the co- accused. The co-accused Anil Kumar and Kuldeep Singh during the course of investigation have only named Gautam Kumar alias Gautam Bangali as the person from whom they brought the consignment of 135 bottles of Rexcof. 9.From the records of the investigation, the complicity of the bail petitioner at this stage cannot be equated with those of the co- accused. The co-accused Anil Kumar and Kuldeep Singh during the course of investigation have only named Gautam Kumar alias Gautam Bangali as the person from whom they brought the consignment of 135 bottles of Rexcof. Not only this, in the recoveries made from the medical store, it is Gautam Bangali alone, who has been associated and not the bail petitioner. At this stage, it would not be proper to further comment on the role of each of the accused. But suffice it so say that this is a fit case where the bail petitioner is enlarged on bail. 10. Though the adverse effects of drugs, particularly amongst the school going children cannot be ignored but then the liberty of an individual which is one of the most precious rights under Article 21 of the Constitution of India is also required to be protected and balance is required to be maintained. The petitioner otherwise does not have any previous criminal history and is a permanent resident of Village Kachari, P.O. Oddi, Tehsil Kumarsain, District Shimla and, therefore, there is remote chance of his fleeing from justice. 11. Accordingly, the present bail petition is allowed and the petitioner is ordered to be released on bail in FIR No. 7 of 2014 dated 25.1.2014 registered at Police Station, Sunni, District Shimla, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on his furnishing personal bond in the sum of 150,000/- with one surety of the like amount to the satisfaction of the Judicial Magistrate 1st Class, Shimla, with the following conditions: (i) That the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (ii) that the petitioner shall not temper with the prosecution evidence or threaten the witnesses; (iii) that the petitioner shall make himself available for interrogation by the police officer as and when and if required. (iv) that the petitioner shall not misuse his liberty in any manner. (iv) that the petitioner shall not misuse his liberty in any manner. 12.It is made clear that the observations made in this order are solely for the purpose of deciding the bail application and shall not be read or referred to at the time of trial or at any later stage. Copy ‘dasti’.