Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 485 (HP)

Vidya Sagar v. State Of H P

2021-07-30

SATYEN VAIDYA

body2021
JUDGMENT Satyen Vaidya, J. - Petitioner has sought his release on bail in case registered vide FIR No. 50 of 2021 dated 10th March, 2021 at Police Station, Jogindernagar, District Mandi, H.P under Section 20 of the Narcotic Drugs and Psychotropic Substances Act ( in short 'the NDPS Act') 2. Petition has been filed on the ground that the petitioner is a law abiding citizen and has no art and part in the commission of any offence. He has been falsely involved in the case. The quantity of alleged contraband recovered in the case is doubtful. There is no compliance of mandatory provisions of the NDPS Act. 3. It has further been submitted on behalf of the petitioner that he is permanent resident of village Chhuchhal, Post Office Ropa, Tehsil Padhar, District Mandi, H.P. and there is no likelihood of petitioner fleeing from the course of justice. Petitioner has undertaken that in case of his release on bail, he will abide by all the conditions imposed by the Court. 4. On notice, the respondent has submitted the status report. Its perusal reveals that the petitioner was apprehended with 1 kg 20 grams of charas on 10.03.2021 at place Kadhaar by the police party. The recovery was effected in presence of independent witnesses named Yashodha Devi wife of Hemant Ram and Piar Singh son of Katku. The investigation was carried and petitioner was arrested. He was remanded to police custody till 12th March, 2021, on which day, he was ordered to be kept in judicial custody. On 12.03.2021, the certification of the inventory, as per Section 52A of the NDPS Act was done by learned JMIC, Jogindernagar. 5. The respondent, in the status report, has also submitted that the petitioner is an accused in another case registered vide FIR No. 65/2020 dated 28.02.2020, registered at Police Station, Sadar, District Mandi, H.P. under Section 20 NDPS Act and trial in the said case was pending. 6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have gone through the status report as well as the report under Section 173 Cr.P.C., placed on record by the petitioner along-with documents annexed therewith. 7. 6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have gone through the status report as well as the report under Section 173 Cr.P.C., placed on record by the petitioner along-with documents annexed therewith. 7. At the out set, learned counsel for the petitioner has drawn the attention of the Court to the report of State Forensic Science Laboratory, Junga, in which the weight of the contraband after deducting the weight of carry bags and parcel cloth is mentioned as 0.990 Kgs. On the strength of the said report, it has been submitted on behalf of the petitioner that since the intermediate quantity of contraband is involved in the case in hand, therefore, the rigors of Section 37 of the NDPS Act are not applicable. 8. No doubt, the report of State Forensic Science Laboratory, relied upon by the petitioner mentions the weight of contraband as 0.990 kgs., but it is revealed from the report under Section 173 Cr.P.C submitted by the police that during investigation certification of the inventory and photographs of contraband was got done from learned JMIC, Jogindernagar and as per said certification, contraband weighs 1 Kg 20 grams 9. Learned counsel for the petitioner submits that the probably the weight of the contraband at the time of certification included the weight of parcel cloth and the carry bags and hence the contraband cannot be said to be of commercial quantity. Order passed by a Co-ordinate Bench of this Court on 12.05.2020 in Cr.M.P(M) No. 603 of 2020 titled as Gokul Chand vs. State of H.P. has been relied upon by the petitioner in which also, the cannabis after deducting the weight of wrappers, poly bags etc. was found to be 0.989 Kgs. and the Court had proceeded to grant the bail. 10. was found to be 0.989 Kgs. and the Court had proceeded to grant the bail. 10. It has also been contended on behalf of the petitioner that though he is an accused in an earlier case registered vide FIR No. 65/2020 dated 28th February, 2020 at Police Station, Sadar, District Mandi, H.P. with the allegations of having been apprehended with 480 grams of charas, but the said fact cannot be taken to be a deterrent in grant of bail to the petitioner in the present case on the ground that the offence in both the cases is yet to be proved against the petitioner and till such time, he is to be presumed an innocent. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in Maulana Mohammed Amir Rashadi vs. State of Uttar Pradesh and another, (2012) 2 SCC 382 , relied upon by a Co-ordinate Bench of this Court in Ashish Sardana vs. State of H.P., Cr.M.P(M) No. 1423 of 2019 decided on 2nd September, 2019. The relevant para of the judgment reads as under:- "10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc." 11. The Court at this stage has not to scan the evidence collected by the investigating agency minutely. The fact whether the commercial or intermediate quantity was found from the person of petitioner can only be decided after recording of evidence by the Court of competent jurisdiction. The Court at this stage, has to look into the available material only to form prima-facie opinion for the disposal of this application. The fact whether the commercial or intermediate quantity was found from the person of petitioner can only be decided after recording of evidence by the Court of competent jurisdiction. The Court at this stage, has to look into the available material only to form prima-facie opinion for the disposal of this application. In the teeth of the fact that learned Judicial Magistrate 1st Class while exercising power under Section 52A of the NDPS Act has certified inventory of the contraband as well as photographs of such contraband which reveal the weight of the contraband to be 1 kg 20 grams, the quantity involved in the case thus, prima-facie, appears to be commercial quantity. Learned counsel for the petitioner has not been able to make out any ground so as to take the case of the petitioner out of rigors of Section 37 of the NDPS Act. From the available records, reasonable grounds for believing that the petitioner is not guilty of the alleged offence and that he is not likely to commit any offence while on bail, are not made out. 12. It has been brought on record that the petitioner is an accused in another case under Section 20 of the NDPS Act registered vide FIR No. 65/2020 dated 28th February, 2020 at Police Station, Sadar, District Mandi, H.P. in which he is alleged to have been carrying 480 grams of charas. Though, petitioner is stated to be on bail in the said case, but it cannot be ignored that the petitioner has been apprehended with larger quantity of contraband within almost one year. 13. This Court is not in agreement with the contentions raised on behalf of the petitioner. Firstly, the rigors of Section 37 of the Act prohibits the release of petitioner on bail and secondly, his own act dis-entitles him from being released on bail. The fact remains that menace of drugs has infected a large number of population including alarming number of students and adolescents. With all deference to the judgments cited on behalf of the petitioner, it cannot be said as a absolute rule that the criminal history of the person has to be ignored altogether while deciding his bail application. The fact remains that menace of drugs has infected a large number of population including alarming number of students and adolescents. With all deference to the judgments cited on behalf of the petitioner, it cannot be said as a absolute rule that the criminal history of the person has to be ignored altogether while deciding his bail application. The Apex Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, (2010) 14 SCC 496 while culling out principles to be kept in mind while deciding petitions for bail has held character, behavior, means, position and standing of the accused and also the likelihood of the offence being repeated as one of the relevant consideration. The serious dimensions of the drug abuse in the society makes the offence of which the petitioner is accused to be of extreme serious nature. The repeated involvement of the petitioner in offence under Section 20 NDPS Act for the same offence, that too, with 480 grams and 1 kg 20 grams of contraband, cannot be over-looked. In the given facts of the case, it also cannot be said that petitioner, if released on bail, shall not indulge in the same activity again. Petitioner cannot draw help from the order passed in Cr.P.M(M) No. 603 of 2020, as noted above, for the reason that facts in the said case were different and the petitioner in that case had no criminal antecedents. 14. In view of the discussion made above, the bail petition deserves dismissal and the same is accordingly dismissed. 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 hereinabove.