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2017 DIGILAW 566 (HP)

Mukesh Kumar v. State Of Himachal Pradesh

2017-05-22

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. (Oral)—The present bail application has been maintained by the petitioner under section 439 of the Code of Criminal Procedure, 1973 seeking his release in case FIR No. 138 of 2016, dated 26.07.2016, under Section 21 of the Narcotic Drugs & Psychotropic Substances, Act (hereinafter referred to as "NDPS Act"), registered at Police Station Nalagarh, District Solan, H.P. 2. As per the petitioner, he is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. 3. Police report stands filed. As per the prosecution, during the intervening night of 25-26.07.2016, around 12:30 a.m., when the police was patrolling near Soban Majara, Barnu Road, near Talab, they spotted a person holding a bag and on seeing the police he tried to fled away from the spot. Thus he was apprehended. On search, the said bag contained 20 vials of plastic having Corex Cough Syrup 100 ML written over them. The recovered vials of corex are prohibited medicine. The said person (the petitioner) could not produce any valid document for possessing 20 vials of corex. Thereafter, the police completed all the codal formalities. The accused was arrested and he disclosed that he brought the same from Punjab. Later on, the accused was released on bail by the learned Trial Court. After the receipt of report from FSL, Junga, which revealed that total quantity of Corex Cough Syrup is 122.100mg x 20 = 2.442 kg. Thus the accused was again arrested. The accused is behind the bars for the last more than nine months. Lastly, the prosecution has prayed that the bail application of the petitioner may be dismissed. 4. Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor to flee from justice. 4. Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor to flee from justice. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious offence and in case he is enlarged on bail he may again indulge in such kind of activities and may also tamper with the prosecution evidence, so he prayed that the bail application of the petitioner may be dismissed. 5. I have gone through the rival contentions of the parties and the police reports in detail. 6. It is seen from the report of the chemical examiner that quantity of codeine phosphate, a narcotic drug in 20 vials of 100 ml each allegedly recovered from the possession of the petitioner comes to 4 grams. As per Notification, annexed to the N.D.P.S. Act, the quantity of such drug up to 10 grams is small quantity. The present, as such, is a case of recovery of small quantity of drug, namely, codeine phosphate. In a such like case ( Cr.MP(M) No. 499 of 2017, titled Sunil Kumar v. State of H.P.), this Hon''ble High Court has granted bail to the petitioner therein, vide judgment dated 27.04.2017 . 7. True it is that in State of Himachal Pradesh v. Mehboob Khan 2013(3) Himachal Law Report (FB) 1834 , a larger Bench of this Court, in a case of recovery of charas, has held that presence of tetrahydrocannabinol and cystolithic 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. 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 4 grams, which is small quantity and as such, rigors of section 37 of the NDPS Act, which is extracted hereunder for the sake of convenience, are not attracted in the case in hand: "[37. Offences to be cognizable and non-bailable.- (1) Notwithstanding 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, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on ground of bail specified in clause (b) of sub-section (1) 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 of bail.]" 8. True it is that the offence, the 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. True it is that the offence, the 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. The petitioner is 40 years of age, having two school going children, and there is possibility that he was carrying the contraband for his own use. 9. Above all, the petitioner is permanent resident of Nalagarh, therefore, there is no likelihood of his fleeing away from justice, if admitted on bail. He is in custody for the last more than nine months, in case, it is ultimately held that the quantity of drug recovered from him is 4 grams, there is provision to impose maximum sentenced up to one year and also to pay fine of Rs. 10,000/-. Since he is already in judicial custody for the last more than nine months, therefore, on this score also, he deserves to be admitted on bail. 10. This petition, therefore, is allowed and it is ordered that the petitioner, who has been arrested by the police of Police Nalagarh, District Solan, in case FIR No. 138 of 2016, dated 26.07.2016, under section 21 of NDPS Act, he shall be released on bail, subject to his furnishing personal bond in the sum of Rs. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will 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/her from disclosing such facts to the Investigating Officer or Court. 11. In view of the above, the petition is disposed of.