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Himachal Pradesh High Court · body

2022 DIGILAW 871 (HP)

Ajay Kumar v. State of H. P.

2022-12-26

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. By way of instant petition, a prayer has been made to release the petitioner on bail in case registered vide FIR No. 125 of 2022, dated 3.8.2022, at Police Station, Damtal, District Kangra, H.P. under Section 21 of the Narcotic Drugs and Psychotropic Substances, Act (for short, “ND&PS” Act). 2. Petitioner is in custody since 02.08.2022. It is alleged that 6.05 grams of heroin (Chitta) was recovered from his conscious possession. 3. From the status report filed on behalf of the respondent, it is revealed that after completion of investigation, challan has been presented against the petitioner on 26.9.2022. Petitioner is stated to be involved in four other cases under the ND&PS Act. The details of all such cases have been provided as under: “(i) Case FIR No.148/2018, dated 10.6.2018, under Section 21-61-85 of ND&PS Act, P.S. Indora. Recovery 3.66 gm. Heroin/chitta. (ii) Case FIR No. 167/2019, dated 10.12.2019, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 6.32 gm. Heroin/chitta. (iii) Case FIR No. 67/2020, dated 27.7.2020, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 6.70 gm. Heroin/chitta. (iv) Case FIR No. 51/2022, dated 22.3.2022, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 4.08 gm. Heroin/chitta.” The plea of the petitioner has been contested on the ground that he is a habitual offender and in case released on bail, will again indulge in similar activities. 4. On the other hand, it has been contended on behalf of the petitioner that he is of young age and has been a victim of drug abuse. It has been submitted that the petitioner was undergoing rehabilitation process, but his relapse landed him in the present case. Today, Sh.Yashwinder Pal S/o Sh. Rajinder Pal, is also present in the court, who was identified by the counsel for the petitioner. Sh. Yashwinder Pal, disclosed that the petitioner was his real brother and was addicted to I.V. Drug Abuse. He further submitted that he is ready and willing to take care of his brother by providing all means for rehabilitation and medical treatment. It is further disclosed that petitioner is married and has two children, who are totally dependent upon him. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. It is further disclosed that petitioner is married and has two children, who are totally dependent upon him. 5. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 6. Noticeably, in all the previous cases, as detailed above, the quantity of heroin recovered from the petitioner is either small quantity or marginally more than small quantity. Same is the nature of instant case. As per the notification issued by the Central Government specifying the small and commercial quantity, the heroin is mentioned at serial No. 56 of the Table. Upto 5 grams of heroin, is small quantity and from 5 grams to 250 grams, is intermediate quantity. The quantity with which the petitioner has been apprehended by the police every time, suggests that the petitioner himself is a victim of drug abuse, as the quantity recovered cannot be reasonably said to be possessed for commerce or trade. 7. Undoubtedly, the possession of intermediate quantity of heroin, attracts severe punishment as it is considered to be a heinous offence, nonetheless, its social implication cannot be undermined especially keeping in view the age group in which the petitioner is. The contention raised by learned counsel for the petitioner that petitioner requires rehabilitation, medical care as also the care by the family members does not appear to be without substance. The fact that the brother of petitioner has come-forth to offer all help to petitioner also strengthens the contention so raised on behalf of the petitioner. 8. Petitioner has already been in custody in the present case almost for about five months. His further incarceration may not be in the interest of justice, as no fruitful purpose is likely to be served, rather it may prove to be an impediment in rehabilitation of the petitioner and his cure from the disease in which he had been enroped. Pre-trial incarceration is not the rule and the prayer for grant of bail is to be decided keeping in view the facts and circumstances of each specific case. 9. The petitioner is permanent resident of Village and Post Office Channi, Tehsil Indora, District Kangra, H.P. and in order to secure the purpose of grant of bail to the petitioner, appropriate conditions can be imposed. 10. 9. The petitioner is permanent resident of Village and Post Office Channi, Tehsil Indora, District Kangra, H.P. and in order to secure the purpose of grant of bail to the petitioner, appropriate conditions can be imposed. 10. It is not the case of the respondent that in case of release of petitioner on bail, he will be able to tamper with the prosecution evidence or to defeat or delay the fair trial. 11. The challan has already been presented, but it is not likely that the trial of the petitioner will be concluded shortly. Keeping in view the balance between the rights of the petitioner and the gravity of crime and also keeping in mind the peculiar facts of the case, the prayer made in the petition is allowed. The petitioner is ordered to be released on bail in case registered vide FIR No. 125 of 2022, dated 3.8.2022, at Police Station, Damtal, District Kangra, H.P. under Section 21 of the ND&PS Act, on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One lac) with one surety in the like amount, to the satisfaction of learned trial Court. This order is, however, subject to the following conditions: - i) That the petitioner shall regularly attend the trial of the case before learned trial Court and shall not cause any delay in its conclusion. ii) That the petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand. iii) That the petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail. iv) That the petitioner shall not leave India without the prior permission of the trial Court till completion of trial. 12. Any observation made in this order 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.