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2023 DIGILAW 511 (HP)

Rakesh Kumar v. State of Himachal Pradesh

2023-12-12

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’), vide FIR no. 172/2022 dated 19.05.2022 registered at Police Station Sadar, Kullu, District Kullu, H.P. 2. As per the prosecution, 1.384 kgs of contraband was recovered from the petitioner. The investigation is complete. The petitioner has been in judicial custody since 19.05.2022. The Court has taken the sample but the same is not representative; hence, the petitioner is liable only for the possession of 26 grams of contraband. The compliance of Sections 41 and 42 of the NDPS Act was also not made. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 18.05.2022. The police saw the accused carrying a carry bag at 9:40 pm near a residential colony of Power Project Malana-II. The police stopped and searched the petitioner in the presence of witnesses and recovered 1.384 kgs of charas. The police arrested the petitioner and seized the charas. As per the report of analysis, the Exhibit was an extract of Cannabis and a sample of charas. The challan was prepared and presented before the Court on 10.08.2023. The matter is pending before the learned Additional Sessions Judge, Kullu. 09 witnesses have been examined and witnesses at Sr. No. 14 and 15 are to be examined on 27.12.2023. 4. I have heard Mr. Bhupinder Ahuja, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State. 5. Mr. Bhupinder Ahuja, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The sample of 26 grams was taken in the Court, which is not representative; therefore, the petitioner is liable only for the possession of 26 grams, which is a small quantity. The petitioner has already spent more than one and a half years in custody and has undergone the maximum sentence, which can be awarded by the Court for possession of a small quantity, therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. The petitioner has already spent more than one and a half years in custody and has undergone the maximum sentence, which can be awarded by the Court for possession of a small quantity, therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the trial is continuing and the quantity is to be determined by the learned Trial Court. Learned Magistrate had specifically noticed while taking the sample that it was representative and it cannot be said that the sample was not representative. The petitioner was found in possession of a commercial quantity of charas and the rigours of Section 37 of the NDPS Act apply to his case. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:- 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. 13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [ (2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 9. A similar view was taken in State of Haryana vs. Dharamraj, 2023 SCC Online 1085, wherein it was observed : 7. A foray, albeit brief, into relevant precedents is warranted. A similar view was taken in State of Haryana vs. Dharamraj, 2023 SCC Online 1085, wherein it was observed : 7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.’ 10. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. Sh. Bhupender Ahuja, learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court in Gaunter Edwin Kircher vs. State of Goa, 1993 (3) SCC 145 , Pankaj v. State of H.P., 2023 HHC 6111 and Mangilal v. State of M.P., 2023 SCC OnLine SC 862 : 2023 INSC 634 to submit that since the quantity of sample taken before the Magistrate was 26 grams, the petitioner can at best be said to be in the possession of 26 grams of charas. The petitioner is already in custody for about one and a half years and therefore, he should be released on bail. This submission is not acceptable. The petitioner is already in custody for about one and a half years and therefore, he should be released on bail. This submission is not acceptable. The copy of the order dated 20.05.2022 passed by learned CJM, Kullu shows that two representative samples of 25 grams were drawn in his presence from the alleged bulk of contraband/charas, which was sealed in two small separate cloth parcels with three seals of seal impression ‘CJM’. This is a finding recorded by a competent Court that two representative samples were taken and has to be accepted as correct at this stage. Section 114 of the Indian Evidence Act provides a presumption regarding the regularity of the official acts. Illustration (e) reads that the Court may presume that judicial and official acts have been regularly performed. It is an admitted case that evidence is continuing, therefore, the prosecution has a right to examine the learned CJM to establish that the sample was drawn as per the Rules framed by the Central Government and it is premature to say, at this stage, that the sample was not representative. 12. In Pankaj (supra) this Court had found that the Investigating Officer randomly took three sticks each weighing 52 grams and prepared the sample without making the entire bulk homogenous, which is not the case here. Similarly, in Gauntar (supra), the Hon’ble Supreme Court found that only a small quantity was sent for analysis and the entire quantity was not sent. There was no evidence that the quantity was representative in nature, which is not the case here. In Mangilal (supra), the Hon’ble Supreme Court held that Section 52A of the NDPS Act has to be complied with. The remaining case property was not disposed of by the Executive Magistrate and there was nothing to show what happened to the remaining case property, which is not the case here. 13. It was submitted that this Court is bound to refer the matter to a Larger Bench in case, it does not agree with the judgment of the Co-ordinate Bench in Pankaj (supra). Reliance was placed upon the judgment of S. Kasi v. State, 2023 (1) SCC 1 in support of this submission. This submission is not acceptable. 13. It was submitted that this Court is bound to refer the matter to a Larger Bench in case, it does not agree with the judgment of the Co-ordinate Bench in Pankaj (supra). Reliance was placed upon the judgment of S. Kasi v. State, 2023 (1) SCC 1 in support of this submission. This submission is not acceptable. It was laid down by Hon’ble Supreme Court in Naib Singh v. State of Punjab, (1986) 4 SCC 401 that there is nothing like a precedent in criminal cases and each case turns on its own facts. This position was reiterated in Megh Singh v. State of Punjab, (2003) 8 SCC 666 , wherein it was held:- “18. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact-based.” 14. A similar view was taken in Parasa Raja Manikyala Rao v. State of A.P., (2003) 12 SCC 306 , wherein it was held:- “9. Each case, more particularly a criminal case, depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” 15. Similar is the judgment in Gian Chand v. State of Haryana, (2013) 14 SCC 420 , wherein it was held:- “24. So far as the judgment in Avtar Singh [ (2002) 7 SCC 419 : 2002 SCC (Cri) 1769] is concerned, it has been considered by this Court in Megh Singh v. State of Punjab [ (2003) 8 SCC 666 : 2004 SCC (Cri) 58]. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact-based.” 16. The Bombay High Court examined this question in Mukesh Raja Ram Chaudhary v. State of Maharashtra, 2023 BHC-AS 28549 and held that a bail order does not constitute a precedent and reference is not required to be made a Larger Bench in case, a different view is taken. In the present case, it has already been pointed out that this Court had found specifically in Pankaj (supra) that sticks were picked up randomly without making them homogenous. Such is not the case here because the learned Magistrate has specifically noticed that two representative samples were drawn which clearly shows that the samples were representatives of the bulk and they were drawn after the compliance of the necessary provisions. 17. Therefore, the submission that the prosecution case can at best be proved for the possession of a small quantity is not acceptable. As per the prosecution case, the petitioner was found in possession of 1.384 kgs of charas, which is a commercial quantity, therefore, the rigours of Section 37 apply to the present case. 18. Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail. Section 37 of the NDPS Act reads as under : “37. Offences to be cognizable and non-bailable. 18. Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail. Section 37 of the NDPS Act reads as under : “37. Offences to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless– (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” 19. This Section was interpreted by the Hon'ble Supreme Court in Union of India Vs. Niyazuddin & Another (2018) 13 SCC 738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail. It was observed : “7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are : (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. 8. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. They are : (1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity. 8. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail.” 20. This position was reiterated in State of Kerala Vs. Rajesh AIR 2020 SC 721 wherein it was held : “19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429 , it has been elaborated as under:- "7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95 ) as under : 24. The reason may be the large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95 ) as under : 24. With deep concern, we may point out that the organised 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 have led 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, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, (i) there are reasonable grounds for believing that the accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended." 20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also subject to the limitation placed by Section 37 which commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail operates. 21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” 21. A similar view was taken in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100 : (2021) 3 SCC (Cri) 721 : 2021 SCC OnLine SC 1237 wherein it was observed at page 110 : “21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are: (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist “reasonable grounds to believe” that : (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. 22. The standard prescribed for the grant of bail is “reasonable ground to believe” that the person is not guilty of the offence. Interpreting the standard of “reasonable grounds to believe”, a two-judge Bench of this Court in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10-11) “7. Interpreting the standard of “reasonable grounds to believe”, a two-judge Bench of this Court in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10-11) “7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence charged. 8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”. ‘7. … Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word “reasonable”. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.’ [See MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497 , SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532 ] ] *** 10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis, it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd., (2003) 6 SCC 315 ]) 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.” (emphasis supplied) 23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.” 22. In the present case, there is no material to show that the petitioner has not committed the offence punishable under Section 20(b)(ii)(c) of the NDPS Act; rather the material on record clearly shows that the petitioner was found in possession of the commercial quantity of charas. 23. It was submitted that there is a violation of Section 42 of the NDPS Act. This submission is not acceptable. Section 42 of the NDPS Act is applicable when the search is made inside any building, conveyance or enclosed place between sunset and sunrise. It does not apply to the recovery effected from a person in a public place. This position was elucidated in Sk. Raju @ Abdul Haque @ Jagga vs. State of West Bengal 2018 (9) SCC 708 as under : 12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 13. The appellant was walking along Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation of Section 43. Section 42 had no application.” 24. Therefore, there was no requirement to comply with the provisions of Section 42 of the ND&PS Act in the present case. Final Order: 25. Therefore, the petitioner is not entitled to bail. Hence, the present petition fails and the same is dismissed. 26. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.