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Himachal Pradesh High Court · body

2019 DIGILAW 991 (HP)

Gurmeet Singh v. State Of Himachal Pradesh

2019-07-22

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Bail petitioner, Gurmeet Singh, who is behind the bars since 29.4.2019, has approached this Court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 112, dated 29.4.2019, under S.21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter Act) registered at Police Station, Baddi, Solan, Himachal Pradesh. 2. Sequel to order dated 18.7.2019, SI Mohar Singh Chauhan, has come present with the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned. 3. Close scrutiny of record reveals that on 29.4.2019, police intercepted Car bearing registration No. HP-12-3834 at Morepan Road, Baddi. On checking, Police allegedly recovered green coloured bag containing 2880 tablets of Lomotil . Since bail petitioner failed to produce any permit to keep the aforesaid prohibited drug, FIR, as has been taken note herein above, came to be lodged against the bail petitioner on 29.4.2019 and, since then the bail petitioner is behind the bars. After completion of investigation, police presented the Challan in the competent Court of law and at this stage, nothing is required to be recovered from the bail petitioner. 4. Mr. O.C. Sharma, Advocate appearing for the bail petitioner, while inviting attention of this Court to the report submitted by SFSL, Junga, strenuously argued that the drug namely Lomotil does not fall under the definition of manufactured drug as defined under Section 2 (xi) of the Act ibid. Mr. Sharma also invited attention of this Court to the Notifications No. S.O. 826(E), dated 14.11.1985, S.O. 49 (E), dated 29.1.1993 and S.O. 1431 (E), dated 21.6.2011 to demonstrate that the preparations of Diphenoxylate calculated as base and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate does not fall under the definition of manufactured drug , as notified vide aforesaid notifications. Mr. Mr. Sharma further contended that though in the report referred to herein above, total weight of the tablets has been shown to be 182.304 grams but as per report of SFSL, prohibited drug namely Diphenoxylate Hydrochloride has been found to be 2.49 mg per tablet and as such, prohibited drug, if any, alleged to have been recovered from the conscious possession of the bail petitioner, cannot be said to be of commercial quantity. He contended that though recovery, if any, of the prohibited drug from the conscious possession of the bail petitioner is yet to be proved by the prosecution by leading cogent and convincing evidence, but, even if it is presumed that such dug came to be recovered from the conscious possession of the bail petitioner, he deserves to be enlarged on bail, keeping in view the quantity, which is an intermediate quantity. Mr. Sharma, also invited attention of this Court to judgment dated 17.7.2017, passed by this court in CrMP(M) No. 792 of 2017, to contend that this court, having taken note of entry at Sr. No. 58 in the Notifications referred to herein above, has concluded that the tablet namely Lomotil , having Diphenoxylate Hydrochloride as 2.50 mg and 0.025 mg Atropine Sulphate, does not fall under the definition of manufactured narcotic drug , as such, it does not come within the purview of the Narcotic Drugs and Psychotropic Substances Act. 5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while opposing aforesaid prayer having been made on the part of the bail petitioner for grant of bail, vehemently argued that the contraband/narcotic substance recovered from the bail petitioner is of commercial quantity, as such, no leniency can be shown while considering petitioner s prayer for grant of bail. He further contended that as per settled law, entire material contained in the recovered contraband is to be taken into consideration while determining quantity of the narcotic substance. 6. While refuting submission made by Mr. O.C. Sharma, Advocate, with regard to conclusion drawn by SFSL, Mr. He further contended that as per settled law, entire material contained in the recovered contraband is to be taken into consideration while determining quantity of the narcotic substance. 6. While refuting submission made by Mr. O.C. Sharma, Advocate, with regard to conclusion drawn by SFSL, Mr. Bhatnagar, learned Additional Advocate General made a serious attempt to persuade this court to agree with his contention that the SFSL has concluded in its report that on quantitative analysis, Diphenoxylate Hydrochloride was found to be 2.49 mg per table in the Lomotil , i.e. prohibited drug, as such, by no stretch of imagination, it can be contended that contraband/prohibited substance as recovered from the bail petitioner is of an intermediate quantity, as claimed by the bail petitioner. 7. Having heard learned counsel for the parties and perused the material available on record, especially report of SFSL, it clearly emerges that the prohibited substance i.e. Diphenoxylate Hydrochloride has been found to be 2.49 mg per tablet meaning thereby quantity of the prohibited drug, after taking into consideration 2880 tablets, allegedly recovered from the bail petitioner, comes out to be 7.172 grams i.e. above small quantity and less than the commercial quantity. SFSL, while concluding that 2.49 mg of Diphenoxylate Hydrochloride has been found in each tablet, has admittedly nowhere rendered opinion, if any, with regard to remaining contents/mixture contained in the tablet namely Lomotil . Hence, inference can be drawn that 7.172 grams of Diphenoxylate Hydrochloride is present in the recovered tablets. 8. At this stage, it may be apt to take note of Entry at Sr. No. 58 contained in the Notifications, referred to herein above, which reads as under: Elthy1 1-(3- Cyano-3, 3-diphenylpropy)-4 phenylpiperidine-4- carboxylic acid ethyl ester(the international non-proprietary name of which is Diphenoxylate) and its salts and preparations, admixture, extracts or other substances containing any of these drugs except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. 9. Careful perusal of aforesaid entry at Sr. No.58 in the notification, as referred hereinabove, clearly suggests that Diphenoxylate and its salts and preparations, admixtures, extracts or other substances containing any of these drugs are manufactured narcotic drugs, but save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. No.58 in the notification, as referred hereinabove, clearly suggests that Diphenoxylate and its salts and preparations, admixtures, extracts or other substances containing any of these drugs are manufactured narcotic drugs, but save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. Learned counsel for the petitioner, while referring to the report submitted by SFSL, contended that the drug namely Diphenoxylate Hydrochloride has been found to be 2.49 mg per tablet and similarly 0.025 mg of Atropine Sulphate i.e. 1% of dose of Diphenoxylate Hydrochloride has been also found in each tablet, meaning thereby tablet namely Lomotil having 2.49 mg of Diphenoxylate hydrochloride with 0.025 mg of Atropine Sulphate does not fall under the definition of manufactured narcotic drug and as such, does not come under the purview of the Narcotic Drugs and Psychotropic Substances Act. 10. At this stage, it would be profitable to reproduce Section 2(xi) of the Act, herein:- Manufactured drugs mean:- (a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate; (b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette (declared to be a manufactured drug) 11. Careful perusal of aforesaid provision of law suggests that all the coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrates and any other narcotic substance or preparation which central government may notify in the official Gazette would be termed as manufactured drugs , but it further suggests that it will not include any narcotic substance or preparation which the Central Government may, having regard to the available information or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be manufactured drugs. Aforesaid provision of law, clearly suggests that narcotic substance or preparations declared by Central Government by issuing notification in the Official Gazette shall only be deemed to be manufactured drugs save and except of coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, as prescribed under Section 2(xi) of the Act. Aforesaid provision of law, clearly suggests that narcotic substance or preparations declared by Central Government by issuing notification in the Official Gazette shall only be deemed to be manufactured drugs save and except of coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, as prescribed under Section 2(xi) of the Act. Aforesaid provisions of law i.e. section 2(xi((b), certainly suggests that the narcotic substance or preparations not included in the notification, if any, issued by the Central Government declaring certain narcotic substances or preparations to be manufactured drugs shall not be considered as manufactured drugs in terms of Section 2(xi) of the Act. In the instant case, entry made at Sr. No.58 of Notification, as referred above, certainly suggests that Diphenoxylate Hydrochloride and its slats and preparations and admixtures, extracts or other substances containing any of these drugs are to be treated as manufactured narcotic drugs save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. 12. In the case at hand, 2.49 mg of Diphenoxylate Hydrochloride has been found in one tablet whereas, Atropine Sulphate has been found to be 0.025 mg per tablet i.e. 1% of the dose of Diphenoxylate Hydrochloride. Though this Court, having carefully perused Entry at Sr. No. 58 of the Notification, is in agreement with Mr. O.C. Sharma, Advocate appearing for the bail petitioner that the tablet namely Lomotil does not fall under the definition of manufactured drug , as defined under S.2(xi) of the Act ibid, but said aspect of the matter is to be considered and examined by learned trial Court during the course of trial. However, having taken note of the fact that investigation in the case is complete and Challan stands filed before the competent Court of law, this Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial, especially, when guilt, if any, of the bail petitioner is yet to be ascertained/determined by the learned trial Court, in the totality of evidence collected by the prosecution. Bail petitioner has already suffered for more than two and a half years and nothing has been placed on record to compel this Court to infer that the bail petitioner has been indulging in illegal trade of narcotics in the past, as such, considering the fact that the bail petitioner is a first offender and the quantity involved is not commercial , this court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. Moreover, rigours of Section 37 of the Act ibid, are not attracted in the present case, keeping in view the quantity of contraband allegedly recovered from the bail petitioner. 13. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, 2012 1 SCC 49; has been held as under:- The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson. 14. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. (Emphasis supplied) 15. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra, (2014) 16 SCC 623 , has held as under:- 8. Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being brought before a Court , the present provision postulates the accused being brought before a Court other than the High Court or a Court of Session in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State(Delhi Admn), (1978) 1 SCC 118 , there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal, (1992) Supp1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any nonbailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. where there is a right there is a remedy. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word custody the same or closely similar meaning and content as arrest or detention. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word custody the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of Committal of cases to the Court of Session because of a possible hiatus created by the CrPC. 16. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. 17. Needless to say object of the bail is to secure the presence of the accused in the trial and proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take its trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 18. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 19. 19. In view of above, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his furnishing personal bonds in the sum of Rs.5,00,000/-(Rupees Five Lakh) with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial court, with following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises 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 Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall deposit passport, if any, held by him, with the Investigating Officer. 20. It is clarified that if the petitioner misuses the 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. 21. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.