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2020 DIGILAW 229 (HP)

ROHIT v. STATE OF HIMACHAL PRADESH

2020-03-13

ANOOP CHITKARA

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JUDGMENT : Anoop Chitkara, J. 1. For possessing 20.02 grams of Heroin, the petitioner, who is under arrest, on being arraigned as an accused in FIR Number 148/2019 dated 14.7.2019, registered under Sections 21, 29 of the Narcotic Drugs and Psychotropic Substances Act (after now called "NDPS Act") and 181 of the Motor Vehicles Act, 1988, in the file of Police Station, Sadar Solan, District Solan, H.P., disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail. 2. Status report stands filed in Cr.MP(M) No.165/2020. 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. I have heard learned counsel for the petitioner and learned Additional Advocate General, for the respondent/ State. FACTS 3. The gist of the First Information Report and the investigation is that on 14.7.2019, the Police party was present at Solan city within the jurisdiction of Police Station, Sadar Solan. The Police party had proceeded in a private vehicle for deduction of crime and to erect a Check Post for the said purpose at a place known as Dohri Diwar. At around 11:45 a.m., when the Police party was present at Dohri Diwar, then one motorcycle bearing No.HP-16-8160 came from Barog side. There were two persons sitting on the motorcycle. The Police party asked them to stop and after stopping, the person who was sitting on the back seat threw a small bag on the hill side near the road. On asking, the driver of the motorcycle revealed his name as Arun Sharma. The person, who was sitting on the rear seat and had thrown the bag revealed his name as Rohit, resident of Solan and of Nepali origin, the present bail petitioner. On this, the Police party prima facie had reasons to believe that the bag which the pillion rider had thrown contain some narcotic substance. Thereafter, the Police party stopped one car and associated its occupants as independent witnesses. After that, the Police picked up the said bag thrown by the pillion rider of the motorcycle, Rohit Kumar. In the said bag, there was one cigarette packet and within that there was a polythene pouch which contained a yellow coloured substance. The pouch also contained nine insulin syringes, one steel spoon and one lighter. After that, the Police picked up the said bag thrown by the pillion rider of the motorcycle, Rohit Kumar. In the said bag, there was one cigarette packet and within that there was a polythene pouch which contained a yellow coloured substance. The pouch also contained nine insulin syringes, one steel spoon and one lighter. On weighing the yellow coloured substance, it was found to be 20.2 grams and prima facie it was found to be Heroin. Subsequently, the Police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner. The report of Laboratory has opined the recovered substance as Diacetylmorphine (Heroin). 4. Vide order dated 26.2.2020, this Court had directed the State and the petitioner to give particulars about the nationality and citizenship of the petitioner, in view of the fact that in the status report, the petitioner was mentioned as a person of Nepali origin. Consequent upon to that order, the petitioner, through his father, has filed an affidavit, as per which, the father of the petitioner is bonafide Himachali and residing in Himachal Pradesh for more than 20 years. He has PAN card and they have also placed on record the Aadhar card of the bail petitioner. Apart from that, middle standard examination certificate of the petitioner is also placed on record, according to which, he had appeared in the examination in Government Boys Senior Secondary School, Solan. Furthermore, it is also submitted in the affidavit that he is residing there for last 25 years and is a bona-fide Himachali. ANALYSIS AND REASONING: 5. 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. 6. 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. 6. 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. 7. The substance recovered from the petitioner is 20.02 grams. In view of the documents produced on behalf of the petitioner, which the prosecution did not dispute, there is prima facie no possibility of the petitioner absconding from the trial, as such, 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. 8. 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. (c) The petitioner is in judicial custody since 14.7.2019. (d) The investigation is almost complete. (e) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. 9. In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR. (d) The investigation is almost complete. (e) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. 9. 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 any other Court exercising jurisdiction over the concerned Police Station where FIR is registered. 10. 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. 11. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner. 12. 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. (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. (i) In case the petitioner repeats the offence or commits any offence where the sentence is seven years or more, then before granting bail, the Courts shall consider the fact that he was also warned earlier about not repeating the offence and not committing it. 13. 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. 14. 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). 15. It is clarified that the present bail order is only with respect to the above-mentioned FIR. 14. 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). 15. 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. 16. 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. 17. The petition stands allowed in the aforesaid terms.