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Himachal Pradesh High Court · body

2015 DIGILAW 173 (HP)

Nirmal Singh v. State of Himachal Pradesh

2015-03-12

P.S.RANA

body2015
JUDGMENT : P.S.Rana, J. Present petition filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in connection with case FIR No. 82 of 2012 dated 27.10.2012 registered under Sections 15-61 of Narcotic Drugs and Psychotropic Substance Act 1985 at Police Station Barotiwala District Solan H.P. 2. It is pleaded that investigation is complete and challan already stood filed and trial of case would be completed in due course of time and no useful purpose would be served by keeping the applicant in custody. It is pleaded that accused is presumed to be innocent till convicted by competent Court of law and applicant undertakes to abide by all conditions imposed by the Court and it is further pleaded that applicant also undertakes not to influence any of prosecution witnesses in any manner. Prayer for acceptance of bail application filed under Section 439 Cr.P.C. sought. 3. Per contra police report filed on behalf of non-applicant pleaded therein that FIR No. 82 was registered on dated 27.10.2012 under Section 15 of Narcotic Drugs and Psychotropic Substances Act in P.S. Barotiwala. There is recital in police report that poppy straw measuring 1 quintal 23 Kg. was recovered from constructive possession of applicant from one room situated in ground floor of HIMUDA colony at Batolikalan. There is recital in police report that one electronic weighing machine was also found nearby the contraband which was purchased by applicant from Jaswinder Singh goldsmith. There is also recital in police report that Jaswinder Singh has given affidavit that he had sold the electronic weighing machine which was found nearby contraband to applicant. There is further recital in police report that 1 quintal 23 Kg. of poppy straw was found from possession of applicant which falls in the category of commercial quantity and bail application filed by applicant be rejected. 4. Following points arise for determination in the present bail application: (1) Whether bail application filed by applicant under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail application? (2) Final Order. 5. Court heard learned Advocate appearing on behalf of applicant and learned Additional Advocate General appearing on behalf of State and also perused record carefully. Finding upon Point No.1. 6. (2) Final Order. 5. Court heard learned Advocate appearing on behalf of applicant and learned Additional Advocate General appearing on behalf of State and also perused record carefully. Finding upon Point No.1. 6. Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and applicant did not commit any offence as alleged by prosecution cannot be decided at this stage. Same fact will be decided when case shall be finally disposed of on merits by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of applicant that trial of the case would be completed in due course of time and no useful purpose would be solved by keeping the applicant in custody and on this ground bail application filed by applicant be allowed is rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that direction will be issued to learned trial Court to dispose of the case expeditiously because applicant is in judicial custody. 8. Another submission of learned Advocate appearing on behalf of the applicant that there is no iota of evidence to connect the applicant with commission of offence under Narcotic Drugs and Psychotropic Substances Act 1985 is rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in police report that electronic weighing machine was found nearby the place from where contraband was recovered and Shri Jaswinder Singh had given a affidavit that he had sold the electronic weighing machine found nearby the contraband to the applicant. Even there is prima facie evidence against the applicant that call details of mobile of applicant obtained by Investigating Officer and as per call details of mobile phone applicant was found in locality where contraband was recovered. At the time of granting bail following factors are considered such as (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. There is additional rider for granting bail under Section 37 of NDPS Act 1985 which is quoted. Section 37 of NDPS Act 1985 Offences to be cognizable and non-bailable- (1) Not with standing anything contained in the Code of Criminal Procedure 1973 (2 of 1974). (a) Every offence punishable under this Act shall be cognizable. (b) No person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless (i) The Public Prosecutor has been given an opportunity to oppose the application for such release. (ii) Where Public Prosecutor opposes the application the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Limitations on granting of bail specified in Section 37 of NDPS Act 1985 are in addition to the limitations under the Code of Criminal Procedure 1973 (2 of 1974) or any other law for the time being in force on granting bail. Narcotic Drugs and Psychotropic Substances Act 1985 is a special Act and it is well settled law that when there is conflict between general law and special law then special law always prevails. As per Section 37 of Narcotic Drugs and Psychotropic Substances Act 1985 bail should not be granted qua offence involving commercial quantity in NDPS cases. Prima facie it is proved on record that contraband allegedly recovered from exclusive and conscious possession falls under the category of commercial quantity. Court is of the opinion that bail under Section 37 of the NDPS Act qua commercial quantity should be granted only when Court is satisfied that there are reasonable grounds for believing that accused is not guilty of offence under NDPS Act 1985 and accused is not likely to commit any offence while on bail. Court is of the opinion that finding qua the fact that accused is not guilty of offence could not be given at this stage because charge already stood framed against the applicant on dated 7.10.2014 by learned trial Court and case is fixed for prosecution evidence. 9. Court is of the opinion that finding qua the fact that accused is not guilty of offence could not be given at this stage because charge already stood framed against the applicant on dated 7.10.2014 by learned trial Court and case is fixed for prosecution evidence. 9. Submission of learned Additional Advocate General appearing for the State that case falls under commercial quantity and bail is prohibited qua commercial quantity as per Section 37 of NDPS Act 1985 is accepted for the reasons hereinafter mentioned. In view of rider imposed under Section 37 of NDPS Act 1985 qua commercial quantity Court is of the opinion that it is not expedient in the ends of justice to release the applicant on bail. Point No. 1 is answered in negative. Final Order 10. In view of my finding upon point No.1 present bail application filed under Section 439 of the Code of Criminal Procedure 1973 is rejected. However learned trial Court is directed to dispose of case expeditiously because applicant is in judicial custody and case requires expeditious disposal. Observations made in bail order will not effect merits of criminal case in any manner. All pending application(s) if any are also disposed of.