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2021 DIGILAW 289 (HP)

Mohd. Asad v. State of Himachal Pradesh

2021-05-04

VIVEK SINGH THAKUR

body2021
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Present petition has been filed on behalf of the petitioner, seeking his enlargement on bail under Section 439 Code of Criminal Procedure (in short Cr.P.C.) in Complaint Case No. 2 of 2021, titled as Drug Inspector, through State of H.P. vs. Mohd. Asad, under Sections 18(c) and 18A of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’) punishable under Sections 27(b)(ii) and 28 of the Act. 2. Reply has been filed on behalf of the respondent- State through Drug Inspector complainant. Record has also been produced. 3. It has emerged from the record that on 24.09.2018, business premises/shop of petitioner was raided by Drug Inspector alongwith police and independent witnesses wherein petitioner was found doing business of stocking and exhibiting for sale huge quantity of allopathic drugs without licence and he also failed to produce complete sale/purchase records and other particulars related to the said allopathic drugs and also to disclose name and address and other particulars of those from whom he had acquired the said allopathic drugs and, thus, petitioner was found to have committed an offence under Sections 18(c) and 18A of the Act and Rules made thereunder. 4. Drugs Inspector had completed investigation after performing all codal formalities and following prescribed procedure and filed complaint before the Magistrate on 31.10.2020, concluding that petitioner had been found to have committed offence under Section 18(c) punishable under Section 28(b)(ii) of the Act and also under Section 18A punishable under Section 28 of the Act. 5. Upon receiving complaint, learned Judicial Magistrate 1st Class issued notice to the petitioner for 08.03.2021 and on that day, on appearance of the petitioner before the Magistrate, petitioner was ordered to be arrested and sent to judicial custody on the same day. 6. 5. Upon receiving complaint, learned Judicial Magistrate 1st Class issued notice to the petitioner for 08.03.2021 and on that day, on appearance of the petitioner before the Magistrate, petitioner was ordered to be arrested and sent to judicial custody on the same day. 6. Petitioner had approached the Court of learned Special Judge-II, Sirmaur at Nahan, under Section 439 Cr.P.C. for enlarging him on bail, but his bail application was rejected by learned Special Judge-II vide order dated 17.03.2021, on the ground that in view of provisions of Section 36AC of the Act, offence committed by the petitioner is cognizable and non-bailable and there is statutory bar created under the law under Section 36AC(1)(b)(i) and (ii) which provides that before considering application for bail filed by the accused in a case for commission of offence enumerated in Section 36AC(1)(b) of the Act, an opportunity to oppose such application has to be given to the Public Prosecutor and where Public Prosecutor opposes the application, Court shall not release the applicant on bail or on his own bond unless 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. 7. Learned counsel for the petitioner has submitted that petitioner is 62 years old and he has been made an accused in a case pertaining to year 2018 alleging that on 24.09.2018 he was found involved in the business of stocking and exhibiting sale of allopathic drugs without any licence to do so and thereafter, he was summoned by the Court in March 2021 and during intervening period, there is no instance of commission of the same or similar offence by the petitioner and petitioner, being a law abiding citizen, had followed the direction of the Court and had appeared before the Magistrate in compliance of notice issued to him in present case. Further that petitioner has roots in the society and is ready to furnish local surety bond ensuring his availability during trial and further that rigours of Section 36AC of the Act are not applicable in present case. Further that petitioner has roots in the society and is ready to furnish local surety bond ensuring his availability during trial and further that rigours of Section 36AC of the Act are not applicable in present case. He has further stated that for the offences alleged to have been committed by the petitioner are not cognizable rather bailable and police is not empowered to take cognizance thereof and Court can take cognizance for commission of these offences on a complaint filed by the Drug Inspector, who has no authority to arrest the petitioner and thus arrest and detention of petitioner is illegal. 8. As per Section 27(b)(ii) offence committed under Section 18(c) of the Act is punishable for a term which shall not be less than three years, but which may extend to five years, and with fine not less than one lac rupees or three times value of drugs confiscated whichever is more. 9. For commission of offence under Section 18A of the Act maximum imprisonment provided under Section 28 of the Act is one year or with fine which shall not be less than twenty thousand rupees or with both. 10. Earlier, before amendment of 2008, applicable w.e.f. 10.08.2009, punishment under Section 27(b)(ii) of the Act was not to be less than two years but extendable to three years and with fine not less than five thousand rupees. It appears that learned counsel for the petitioner has not noticed the amendment carried out in Section 27(b)(ii) of the Act, whereby quantum of sentence which can be imposed under this Section has been enhanced. Otherwise also, irrespective of quantum of punishment provided under Section 27(b)(ii) and 28 of the Act, a new Section 36AC has been inserted in the Act providing that offence punishable under Section 28 of the Act shall be cognizable and non-bailable. In the same Section under Sub-Section (1)(b) the provision identical to Section 37 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) has been incorporated which provides special consideration to be taken into account by the Court before granting bail to a person accused for offence punishable under Section enumerated in Section 36AC of the Act itself. In the same Section under Sub-Section (1)(b) the provision identical to Section 37 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) has been incorporated which provides special consideration to be taken into account by the Court before granting bail to a person accused for offence punishable under Section enumerated in Section 36AC of the Act itself. But at the same time, in proviso to Section 36AC(1)(b) of the Act, it has been provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs. 11. Undoubtedly, Section 36AC of the Act creates restriction upon the Court to take into consideration, before granting bail, submissions of Public Prosecutor and also to satisfy itself that there are reasonable grounds for believing that petitioner is not guilty of such offence and he is not likely to commit any offence while on bail. 12. Petitioner is a 62 years old person. It is noticeable that alleged offence was committed by the petitioner in September 2018 and nothing has been produced on record that since then till date, petitioner was found involved in repeating the offence committed by him which reflects that petitioner is not likely to commit same offence again while on bail as after raid on his shop till date, he has not committed any such offence. 13. Petitioner has been arrested in January 2021 for commission of offence committed in September 2018. Petitioner did not flee away, but has submitted himself to the jurisdiction of the Court on the date when he was called to attend the Court. For conduct of the petitioner, after the alleged commission of offence by him in the year 2018, it can be inferred that he is not likely to commit any such offence while on bail. 14. Considering the facts in entirety, including age of the petitioner and his conduct, I find that in present case petitioner can be enlarged on bail at this stage. 15. Accordingly, petition is allowed and petitioner is ordered to be released on bail in Complaint Case No. 2 of 2021, titled as Drug Inspector, through State of H.P. vs. Mohd. Asad, on his furnishing personal bond in the sum of Rs. 15. Accordingly, petition is allowed and petitioner is ordered to be released on bail in Complaint Case No. 2 of 2021, titled as Drug Inspector, through State of H.P. vs. Mohd. Asad, on his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount, to the satisfaction of the trial Court, within three weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time of trial and also subject to following conditions:- (i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required. (ii) that the petitioner shall 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses. (iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial. (iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected. (v) that the petitioner shall not misuse his liberty in any manner. (vi) that the petitioner shall not jump over the bail. (vii) that in case petitioner indulge in repetition of similar offences then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution. (viii) that the petitioner shall not leave the territory of India without prior permission. (ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future. 16. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 17. 17. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law. 18. Trial Court is directed to comply with the directions issued by the High Court, vide Communication No. HHC/VIG/Misc. Instructions/93-IV/7139 dated 18.03.2013. 19. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 20. Petition is disposed of in aforesaid terms. 21. Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.