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2017 DIGILAW 427 (HP)

Sunil Kumar v. State Of H. P.

2017-04-27

DHARAM CHAND CHAUDHARY

body2017
JUDGMENT Dharam Chand Chaudhary, J. (Oral)—Petitioner is an accused in FIR No.232/16 registered against him in Police Station, Sadar, Shimla under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. He has been arrested in this case on 5th September, 2016 and presently is in judicial custody. It is stated that the previous application for bail filed in this Court was not pressed at that stage and rather dismissed as withdrawn. 2. The allegations against the accused-petitioner, in a nut-shell, are that he was apprehended by a police party below Shivalik Hotel while going from U.S. Club side to Ridge in Shimla town. On seeing the police party, he got nervous and tried to turn behind, however, over powered by the police and on inquiry, he disclosed his name and other antecedents. He was holding a carry bag in his hand. On search thereof, two polythene packets were found kept therein. Out of one packet, 25 bottles of ''Corex'', a cough syrup 100 ml. each, whereas, from the other 12 bottles 100ml each were recovered. The police demanded permit/licence or bill voucher from him, which he failed to produce. Therefore, after observing all codal formalities of the NDPS Act, he was arrested. In each bottle, prohibited substance i.e. codeine phosphate, a narcotic drug has been found to the extent of 2.006mg ml. in one 100ml. bottle of corex. 3. As per status report, challan against the accused-petitioner stands filed in the Court and the case is at the stage of consideration of charge by learned Special Judge (Additional Sessions Judge, Court No.1), Shimla. 4. It is seen from the report of chemical examiner that quantity of codeine phosphate, a narcotic drug in 37 bottles of 100ml each allegedly recovered from the possession of accused-petitioner comes to 7.4grams. As per Notification annexed to the N.D.P.S. Act, the quantity of such drug up to 10grams is small quantity. The present, as such, is a case of recovery of small quantity of drug namely, codeine phosphate. 5. True it is that in State of Himachal Pradesh v. Mehboob Khan 2013 (3) Him.L.R. (FB) 1834 , a larger Bench of this Court, in a case of recovery of charas has held that presence of tetrahydrocannabinol and cystolithic hair reveals that sample contains the resin contents and as such, sufficient to hold that the sample is of charas. 5. True it is that in State of Himachal Pradesh v. Mehboob Khan 2013 (3) Him.L.R. (FB) 1834 , a larger Bench of this Court, in a case of recovery of charas has held that presence of tetrahydrocannabinol and cystolithic hair reveals that sample contains the resin contents and as such, sufficient to hold that the sample is of charas. The resin obtained from the cannabis plants may be in ''crude'' or ''purified'' form and charas is hand made drug made from the extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of the cannabis is to be considered as a contraband article. However, in the case in hand, whether the remaining contents of ''Corex'' have also to be treated as codeine phosphate or not need further consideration and as such it is not deemed appropriate to go to this aspect of the matter at this stage and rather the same is left open to be considered at an appropriate stage during the course of trial. The facts, however, remain that the present is a case of recovery of narcotic drug i.e. codeine phosphate 7.4grams, which is small quantity and as such, rigors of Section 37 of the Act are not attracted in the case in hand. 6. True it is that the offence, the accused-petitioner allegedly committed is not only against an individual, but against the society as a whole, however, he is yet to be tried and if found to have committed the alleged offence to be dealt with in accordance with law. He is a young man of 23 years. He is a student and pursuing his studies. Any how, no proof in this regard is forthcoming. The fact remains that the boys of his age group are soft target of drug peddlers, therefore, possibility of he has purchased the bottles of corex from someone else for his own consumption, cannot be ruled-out. 7. Above all, the accused-petitioner is permanent resident of district Shimla, therefore, there is no likelihood of his fleeing away from justice, if admitted on bail. He is in custody for a period over seven months in case, it is ultimately held that the quantity of drug recovered from him is 7.4grams, there is provision to impose maximum sentence upto one year and also to pay Rs. 10,000/- fine. He is in custody for a period over seven months in case, it is ultimately held that the quantity of drug recovered from him is 7.4grams, there is provision to impose maximum sentence upto one year and also to pay Rs. 10,000/- fine. Since he is already in judicial custody for the last seven months, therefore, on this score also, he deserves to be admitted on bail. 8. This petition, therefore, is allowed and it is ordered that the accused-petitioner, who has been arrested by the police of Police Station, Sadar, Shimla, in connection with FIR No.232/16 dated 05.09.2016 shall be released on bail, subject to his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate/Judicial Magistrate, Shimla. He shall further abide by the following conditions: That he shall; (a) join the interrogation as and when called upon to do so and regularly attend the trial Court on each and every date of hearing. If prevented by any reason to do so, shall seek exemption from appearance by filing appropriate application; (b) not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner whatsoever; (c) not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Investigating Officer; (d) not leave the territory of India without the prior permission of the Court. 9. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him; the Investigating Agency shall be free to move this Court for cancellation of the bail. 10. The observations here in above shall remain confined to the disposal of this petition and have no bearing on the merits of the case. The application stands disposed of.