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2020 DIGILAW 160 (HP)

Vishal Thakur v. State Of Himachal Pradesh

2020-02-20

ANOOP CHITKARA

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JUDGMENT Anoop Chitkara, Vacation J. - For selling 1 kg & 43 grams of charas and possessing 224 grams of Charas, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 73 of 2017, dated Apr 26, 2017, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called 'NDPS Act'), in the file of Police Station Palampur, Distt. Kangra, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail. 2. Status report stands filed and taken on record. 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. 3. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC , before Special Judge-IV, Kangra at Dharamshala, Campat Baijnath, Distt. Kangra, HP. However, vide order dated 19.12.2019 (Annexure P- 1), the Court dismissed the petition. Facts 4. The gist of the First Information Report and the investigation is that on Apr 25, 2017, a police party was on patrolling duty for detection of crime and traffic checking, at place Chadiyar Chowk. At 10.45 p.m. the police party received a secret information that a vehicle bearing No. HP37E 4437, make Alto, is coming from Baijnath towards Palampur. The information further revealed that the driver of the car is carrying charas. On this the police complied with the provisions of Section 42(2) of the NDPS Act and after that started waiting for the said car. Thereupon, one taxi came which was stopped. Behind the said taxi the aforesaid Alto Car came which was stopped on which its driver became perplexed. On inquiry, he revealed his name as Sunil Kumar (accused No. 1). He also claimed to be the owner of the said car. On this, police associated the occupants of the taxi which was stopped before this Alto car as independent witnesses and then conducted search of the Alto car. From the front right tyre, beneath the mud guard, police recovered a bag which contained Charas and when weighed with an electronic scale was found to be 1 kg and 43 grams. On this, police associated the occupants of the taxi which was stopped before this Alto car as independent witnesses and then conducted search of the Alto car. From the front right tyre, beneath the mud guard, police recovered a bag which contained Charas and when weighed with an electronic scale was found to be 1 kg and 43 grams. Subsequently, the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the said person Sunil Kumar (accused No. 1). 5. During custody accused Sunil Kumar made a disclosure statement under Section 27 of the Indian Evidence Act, claiming that he had purchased the said charas from one person named Vishal Thakur and that he could identify him. After that accused Sunil Kumar took the police to a place near the HPSEB Sub Station, Tikan, Mandi and near a forest identified Vishal Thakur, petitioner herein, as the person from whom he had purchased the said charas. On seeing the police party, the bail petitioner tried to abscond and jumped in the forest and in the process one packet also fell from his pocket. At that time the police associated two passers-by as independent witnesses and opened the said packet which contained charas in the shape of balls and sticks. Upon weighment on an electronic scale it measured 224 grams. Consequently the police added section 29 of the NDPS Act in the F.I.R. Finally the petitioner who had absconded was arrested on Nov 17, 2019. Analysis And Reasoning: 6. Pre-trial incarceration needs to be justified depending 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. 7. 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. 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. 8. In the nutshell the bail petitioner is facing a case of direct possession of 224 grams of charas which would fall under Section 20 of the NDPS Act as well as allegations of selling 1kg & 43 grams of charas to accused Sunil Kumar which would fall under section 29 of the NDPS Act. As far as 224 grams of charas is concerned it is not a commercial quantity and consequently the rigors of Section 37 of the NDPS Act would not apply and there is no impediment for grant of bail, if otherwise made out. 9. Insofar as, recovery of 1kg & 43 grams of charas is concerned, evidence is only the confession of accused Sunil Kumar from whose possession the said charas was recovered. Such confession made to the police is hit by Section 25 of the NDPS Act and prima facie cannot be read in evidence for the purpose of denying bail. Therefore, there is no legal evidence to deny bail to the petitioner for possessing 1kg & 43 grams of charas. 10. In the status report, there is no mention of any previous criminal history of the bail petitioner. 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. 11. 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 Charas, mentioned at Sr. No. 23 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 petitioner is in judicial custody since Nov 17, 2019. No. 23 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 petitioner is in judicial custody since Nov 17, 2019. d) The investigation in the case is complete and report under Section 173(2) CrPC stands filed. e) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. f) In the status report, there is no mention of previous criminal history of the bail petitioner. 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. h) Apart from above, in case the Petitioner does not turn up before the Trial Court, then the trial Court may issue Non-Bailable warrants and send the petitioner to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail. 12. This order of bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the petitioner. 13. 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). 14. It is clarified that the present bail order is only with respect to the abovementioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the Petitioner. 15. 14. It is clarified that the present bail order is only with respect to the abovementioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the Petitioner. 15. 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. 16. The petition stands allowed in the aforesaid terms. Copy dasti.