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2020 DIGILAW 137 (HP)

Akshay Chauhan v. State Of Himachal Pradesh

2020-01-24

ANOOP CHITKARA

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JUDGMENT Anoop Chitkara, Vacation J. (oral) - For possessing 99.70 grams of Heroin (Chitta), the petitioner, who is under arrest, on being arraigned as accused in FIR Number 02/2020 dated 3.1.2020, registered under Sections 21, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called 'NDPS Act'), in the file of Police Station, West District Shimla, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC , seeking regular bail. 2. SI Jaspal Singh, Police Station, West District Shimla, H.P., is present alongwith record. Record perused and returned. Status report stands filed. I have seen the status report(s) as well as the Police file, to the extent it was necessary for deciding the present petition, and heard learned Counsel for the parties. Facts 3. The gist of the First Information Report and the investigation is that on 3.1.2020, when ASI Roshan Lal, IO Police Post, Shoghi, alongwith C. Suraj Negi No.121, C. Ajmer Ali No.834 at about 9.30 p.m., was patrolling and traffic checking near Shoghi Barrier, then a vehicle bearing No.HP-63A- 5415 came from Solan side in which including driver, three boys and a girl were sitting. On asking, the driver of the vehicle disclosed his name as Prajjawal Janartha and the other person sitting on the front seat disclosed his name as Akshay Chauhan. The third person sitting on the back seat dis- closed his name as Sahil Rajta and the girl disclosed her name as Arti Chauhan. On asking the documents of the vehicle, the driver handed over the RC and Insurance to the Police and being perplexed, he threw some article from the pocket of his pant between his legs. On the spot, no independent witnesses could be associated and in the presence of C. Suraj Negi and Ajmer Ali, the article thrown by Prajjwal Janarath, was checked, which contained two polythene packets which were tied, two foil papers and a ten rupee note which was wrapped in the shape of stick. On checking the packets, the same contained brown coloured substance which on smelling and on the basis of experience was found to be Heroin (Chitta). On weighing the contraband substance, it was found to be 99.70 grams. Subsequently the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner. Analysis And Reasoning : 4. On weighing the contraband substance, it was found to be 99.70 grams. Subsequently the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner. Analysis And Reasoning : 4. Pre-trial incarceration needs to be justified de- pending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State. 5. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. 6. The substance recovered from the petitioner is just 99.70 grams and very close to small quantity, therefore, this Court is inclined to afford last opportunity to the petitioner, making it very clear that in case, the petitioner repeats the offence, then this bail is liable to be cancelled. 7. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:- a) As per the FIR, the substance involved is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances. b) The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. b) The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. c) There is no case pending against the petitioner. d) The petitioner is in judicial custody since 3.1.2020. e) The investigation is almost complete. f) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. 8. In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs.10,000/- with two sureties in the like amount to the satisfaction of the Trial Court or the Court exercising jurisdiction over the concerned Police Station where FIR is registered. 9. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds. 10. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner. 11. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: a) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so. b) The petitioner shall not hamper the investigation. c) The petitioner undertakes not to contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics. d) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. e) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever. e) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever. f) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of more than seven years and in case the bail petitioner is arraigned as an accused in any case, under the provisions of the NDPS Act, irrespective of the quantity, be it a small quantity, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court or to the Trial Court for cancellation of this bail, if it deems fit and proper. It is made clear that in such case, the Court who would be considering such bail application(s), shall take into account that despite warning the accused has repeated the offence. g) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission. 12. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s). 13. It is clarified that the present bail order is only with respect to the above-mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner. 14. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case, and the trial Court shall decide the matter uninfluenced by any observation made herein above. The petition stands allowed in the aforesaid terms. Copy dasti.