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2023 DIGILAW 279 (HP)

Aakash v. State of H. P.

2023-05-18

SATYEN VAIDYA

body2023
JUDGMENT : (Satyen Vaidya, J.) 1. Both these petitions are being decided together as these arise out of the same FIR and involve common questions of facts and law. 2. Petitioners are accused in Case FIR No.50 of 2023, dated 25.02.2023 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short “NDPS Act”), registered at Police Station Sadar Shimla, H.P. 3. Petitioners herein are husband and wife in relation. On 25.02.2023, on the basis of a secret information they were intercepted by the police party near ISBT, Shimla. Petitioner Aakash was riding motorcycle No. PB-39G-4081 and petitioner Shivani was on the pillion. The motorcycle of the petitioners was search and 7.84 grams of heroin/chitta was found wrapped in a polythene packet and placed between the visor glass and speedometer of the motorcycle. The case was registered and petitioners were arrested. 4. Petitioners have prayed for grant of bail on the ground that a little more than small quantity of heroin/chitta has allegedly been recovered from them, which does not attract the rigors of Section 37 of the NDPS Act. The investigation is already complete and no fruitful purpose shall be served by allowing the petitioners to be kept in custody till indeterminate period. It is further submitted that both the petitioners are of young age and their prolonged incarceration will affect their future. 5. On the other hand, the bail petition has been vehemently opposed. It is submitted that the petitioners have been found to be indulging in the trade of selling heroin/chitta. It is further submitted that the petitioners have also been arrayed as accused in another case registered in the same police station vide FIR No. 52 of 2023, dated 27.02.2023 under Section 21 and 29 of the NDPS Act. As per respondent, the petitioners originally are not residents of State of Himachal Pradesh, however, they have taken a residential accommodation on rent at Ramnagar, Shimla. Still, on the night of 24.02.2023, they had hired a room in a home stay named “Four Season B & B” near Auckland Tunnel, Shimla. They had visited the hotel in a car No. CH-03V-7374. On 25.02.203, they had left the hotel by leaving the keys with the Manager on the pretext that they were going out and would return back. They had visited the hotel in a car No. CH-03V-7374. On 25.02.203, they had left the hotel by leaving the keys with the Manager on the pretext that they were going out and would return back. They had instructed the Manager of the hotel that their luggage was lying inside the room and room could be got cleaned in their absence. They had also left their vehicle parked on the road near Four Season B & B. They did not return to home stay till 27.02.2023 and when a police official visited the home stay for routine checking, the Manager had disclosed the factum of petitioners having left the home stay on 25.02.2023 and having not returned since then. The room was checked by the police and from the bag of the petitioners 18 grams of heroin/chitta was recovered besides a large number of small polythene pouches. 6. I have heard learned counsel for the parties and have also gone through the entire record carefully. 7. No doubt the contraband recovered from the petitioners in FIR No.50/2023 registered at Police Station Sadar, Shimla, constitutes intermediate quantity and rigors of Section 37 of the NDPS Act will not be applicable, yet this by itself will not entitle the petitioners for grant of bail. The entirety of facts and circumstances has to be assessed. 8. The manner in which petitioners have been found to be operating is suspicious. In FIR No. 50 of 2023 contraband has been recovered from the conscious possession of the petitioners in the presence of independent witnesses. The police already had some secret information regarding the activities of the petitioners. In FIR No. 52 of 2023, the contraband recovered from the room of home stay/hotel Four Season B & B near Auckland Tunnel, Shimla, is also found connected to the petitioners. Petitioners have rented accommodation in one of the localities of Shimla. There is no explanation that when the petitioners had a rented accommodation in Shimla, why they had visited a home stay on the night of 24.02.2023 and had booked a room there. In the vicinity of home stay, the car used by the petitioner was found parked, whereas on 25.02.2023, they were nabbed on a motorcycle. All the circumstances, prim facie indicate the involvement of petitioners in drug trade. 9. The drug menace has already assumed serious proportions. In the vicinity of home stay, the car used by the petitioner was found parked, whereas on 25.02.2023, they were nabbed on a motorcycle. All the circumstances, prim facie indicate the involvement of petitioners in drug trade. 9. The drug menace has already assumed serious proportions. The addiction of drugs more specifically synthetic drug like chitta/heroin has taken toll of a large number of adolescents. It not only has remained a simple law and order problem, the drug abuse has seriously affected the socio economic ethos of the society. 10. In Gurdev Singh vs. State of Punjab, reported in (2021)6 SCC 558 , highlighting some of the dimensions of the above noted problem Hon'ble Supreme Court has observed as under:- “16. While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to number of innocent young victims who are vulnerable; it cause deleterious effects and deadly impact on the society; they are hazard to the society. Organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole. Therefore, while awarding the sentence/punishment in case of NDPS Act, the interest of the society as a whole is also required to be taken in consideration. Therefore, while striking balance between the mitigating and aggravating circumstances, public interest, impact on the society as a whole will always be tilt in favour of the suitable higher punishment. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Therefore, merely because the accused is a poor man and/or a carrier and/or is a sole bread earner cannot be such mitigating circumstances in favour of the accused while awarding the sentence/punishment in the case of NDPS Act. Even otherwise, in the present case, the Special Court, as observed hereinabove has taken into consideration the submission on behalf of the accused that he is a poor person; that he is sole bread earner, that it is his first offence, while not imposing the maximum punishment of 20 years R.I. and imposing the punishment of 15 years R.I. only.” 11. While adjudicating the plea of bail, this Court is to balance between the rights of an individual with the rights of the society as a whole. Merely, because the allegations against the petitioners in both the cases are of having possession of intermediate quantity of heroin/chitta, seriousness and gravity attached to the offence allegedly committed by the petitioners is not lessened. On the one hand, there are serious accusation against the petitioners on the other there exists prima facie material to support such accusation. 12. The trial in the case is yet to begin and material witnesses are yet to be examined. Keeping in view the fact that the antecedents of petitioners are suspicious, the possibility of winning over the prosecution witnesses cannot be ruled out. In this manner, the petitioners have potential to affect the conclusion of a fair trial. 13. Keeping in view the entirety of the facts and circumstances of the case, the petitioners are not held entitled to bail in above noted case at this stage. In result, both the petitions are dismissed. 14. However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.