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Himachal Pradesh High Court · body

2025 DIGILAW 2 (HP)

Puneet Mahajan v. State of H. P.

2025-01-01

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant Puneet Mahajan has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS’) for releasing him, on bail, during the pendency of the trial, in case FIR No. 170 of 2023, dated 5.11.2023, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ND & PS Act), registered with Police Station, Indora, District Kangra, H.P. 2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated in the present case, as he has no concern whatsoever, with the offence, for which, he has been arrested, by the police. 3. Apart from this, the applicant has put forward the fact that in this case, chances of conclusion of the trial, against the applicant, in near future are not so bright. As such, according to him, no useful purpose would be served by keeping him, in the judicial custody. 4. According to the applicant, the contraband, allegedly recovered from his possession, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 are not applicable, in the present case. 5. Apart from this, the applicant has given the details of the cases, which have been registered against him, as under: i) FIR No. 97/2014, dated 25.4.2014, under Sections 20 of ND &PS Act in PS Nurpur, District Kangra, H.P. in which the petitioner was acquitted. ii) FIR No. 139/21 dated 3.5.2021, under Sections 20 and 21 of ND & PS Act in PS Nurpur, District Kangra,H.P. iii) FIR No. 62/23, dated 23.3.2023, under Section 21 of the ND & PS Act in PS Nurpur, District Kangra, H.P. iv) FIR No. 306/2023 dated 10.9.2023, under Section 21 of ND & PS Act in PS Nurpur, District Kangra, H.P. 6. Applicant has tried his luck by moving bail application bearing No. 248-XXII/2024, before the Court of learned Special Judge, Nurpur, District Kangra, H.P., which has been dismissed vide order dated 14.11.2024. 7. Apart from this, the applicant has also annexed the copies of statements of PWs 1 to 10, recorded in this case, before the learned trial Court. 8. All these documents have been annexed to show that no case is made out against the applicant. 9. On the basis of above facts, Mr. 7. Apart from this, the applicant has also annexed the copies of statements of PWs 1 to 10, recorded in this case, before the learned trial Court. 8. All these documents have been annexed to show that no case is made out against the applicant. 9. On the basis of above facts, Mr. Vijender Katoch, Advocate, has given certain undertakings, which, the applicant is ready to abide by, in case, ordered to be released on bail. 10. On these submissions, a prayer has been made to allow the bail application. 11. When put to notice, the police has filed the status report, disclosing therein, that on 4.11.2023, HC Trilok No. 52, I.O. Police Station, Indora, has submitted the ruqua to Police Station for registration of the FIR, disclosing therein that on 4.11.2023, he, alongwith other police officials was on patrolling duty and duty to detect the crime, relating to excise and narcotics. While on patrolling, when they were coming back from Malot side to Police Station, then, at about 11:45 p.m. at a place known as ‘Dah’, one shop was found to be closed. About 50 meters away from there, the Police team put a picketing and started checking the vehicles. 11.1 At about 11:50 p.m., one person was found coming on foot from Malot side. On seeing the picketing party, he concealed himself in the counter of the said shop. On suspicion, he was nabbed, upon which, he threw a transparent polythene, from the pocket of his lower. In the meanwhile, two persons were found coming from Malot side on their motorcycle. On inquiry, the said persons disclosed their names as Satish Kumar and Ajay Kumar, They were associated by the I,O. in the investigation. 11.2 Thereafter, the person, so nabbed was inquired. On inquiry, he disclosed his name as Puneet Mahajan, S/o Tarsem Lal (applicant). 11.3 In the presence of the aforesaid two independent witnesses, the polythene envelope, which the applicant had allegedly thrown away, was checked. On opening, the same was found to be containing a granular shaped substance, which, on inquiry, was disclosed by the applicant to be chitta/heroin. Thereafter, on checking the substance with the help of drug detection kit, the same was found to be chitta/heroin. 11.4 On weighment of the contraband, it was found to be 11.11 grams heroin. Other codal formalities were completed. After registration of the FIR, the applicant was arrested. Thereafter, on checking the substance with the help of drug detection kit, the same was found to be chitta/heroin. 11.4 On weighment of the contraband, it was found to be 11.11 grams heroin. Other codal formalities were completed. After registration of the FIR, the applicant was arrested. Thereafter, inventory of the contraband was got prepared by producing the same, before the Court of learned JMFC, Indora, District Kangra, H.P. 11.5 The contraband, so recovered, was sent to FSL, Junga, from where, positive report has been received. 11.6 According to the Police, following cases are found to be registered against the applicant: i) FIR No. 97/2014, dated 25.4.2014, under Sections 20 of ND &PS Act in PS Nurpur, District Kangra, H.P. in which the petitioner was acquitted. ii) FIR No. 139/21 dated 3.5.2021, under Sections 20 and 21 of ND & PS Act in PS Nurpur, District Kangra,H.P. iii) FIR No. 62/23, dated 23.3.2023, under Section 21 of the ND & PS Act in PS Nurpur, District Kangra, H.P. iv) FIR No. 306/2023 dated 10.9.2023, under Section 21 of ND & PS Act in PS Nurpur, District Kangra, H.P. 11.7 It is the further case of the Police that investigation in the present case is complete. Thereafter, charge sheet has been submitted against the applicant, which is now pending adjudication, before the Court of learned ASJ-I, Nurpur, and is fixed for 16.1.2025, for PWs. 11.8 In addition to this, it has been pleaded that as per orders passed by the Additional Secretary (Home) to the Government of H.P., the applicant has been kept in judicial custody for three months, under the provisions of Section 3(i) of Prevention of Illicit Trafficking Narcotic Drugs and Psychotropic Substances Act, 1988. Thereafter, the said custody is stated to have been extended on 8.4.2024, for six months. 11.9 On the basis of above facts, a prayer has been made to dismiss the bail application. 10. Contraband, allegedly recovered, in the present case, is of intermediate quantity. As such, rigors of Section 37 of the NDPS Act are not applicable to the facts of the present case. 11. Investigation, in the present case, is stated to be complete. Meaning thereby, custodial interrogation of the applicant is no longer required by the Police. 12. 10. Contraband, allegedly recovered, in the present case, is of intermediate quantity. As such, rigors of Section 37 of the NDPS Act are not applicable to the facts of the present case. 11. Investigation, in the present case, is stated to be complete. Meaning thereby, custodial interrogation of the applicant is no longer required by the Police. 12. Status report is totally silent about the fact as to whether the detention period, which has been extended on 8.4.2024, for another six months, has further been extended or not. 13. Chances of conclusion of trial, against the applicant, in near future, are not so bright. As such, no useful purpose would be served by keeping the applicant in judicial custody, that too, for indefinite period. 14. Interestingly, in this case, the applicant has specifically mentioned in para-11 of the petition that in the case, mentioned at serial No. (I), he has been acquitted. Despite this fact, the State/Police has not bothered to confirm or verify the said fact, from the record and has simply mentioned in the status report that except the present case, four cases are found to have been registered against the applicant and all of the cases are pending adjudication. 15. When, learned counsel for the applicant was confronted with this fact, he has placed on record the downloaded copy of the judgment, dated 1.4.2016, passed by the Court of learned Special Judge-II, Kangra at Dharamshala, in a case titled as ‘State versus Puneet Mahajan & anr.’, arising out of FIR No. 97 of 2014, dated25.4.2014, registered with Police Station, Nurpur, District Kangra, H.P. 16. It is also not the case of the Police that said judgment of acquittal, passed by the learned Special Judge-II, Kangra at Dharamshala, District Kangra, H.P. on 1.4.2016, in Session Case No. 19-D/VII/2014, was assailed by the State before this Court, and the judgment of acquittal has been set aside. 17. Meaning thereby, whatsoever, pleaded in the status report, especially, qua case FIR No. 97 of 2014, registered with Police Station, Nurpur, District Kangra, H.P. is factually incorrect. Such type of casual approach by the State/Police appears to be sort of an attempt to prejudice the mind of the Court, while deciding the question of releasing the applicant, on bail, as, the previous criminal history is also one of the relevant factors to decide the question of bail. 18. Such type of casual approach by the State/Police appears to be sort of an attempt to prejudice the mind of the Court, while deciding the question of releasing the applicant, on bail, as, the previous criminal history is also one of the relevant factors to decide the question of bail. 18. Not only this, act of the Police to mention this case in the criminal history of the applicant, is also violative of the directions, issued by this Court in Cr.MP(M) No. 2964 of 2023, titled as, ‘Babu Ram versus State of H.P.’, decided on 14.12.2023. 19. In the said case, this Court has issued certain directions to the Police to update their record, so that the person, who has been acquitted by the Court, should not suffer the sting of the registration of the FIR. Relevant portion of the judgment in Cr. MP(M) No. 2964 of 2023 (supra), is reproduced as under: “30. Clause 27.2(2) of Punjab Police Rules, 1934, as applicable to the State of Himachal Pradesh, provides for the charge-sheet slip (saja slip), which is required to be returned to the office of Superintendent of Police, on the completion of the case, by the Court. 31. Clause 27.2 of the Punjab Police Rules,1934 is reproduced as under:- 27.2. (1) With every charge sheet shall be sent (a) a charge sheet slip in Form 27.2 (1) (a). (b) a road certificate in form 10.17. (c) In the case of charge sheets against members of criminal tribes who on conviction are liable to be sent to the Reformatory Settlement, a report in form27.2 (2). (2) On the completion of the case in court the charge sheet slip shall be filled in under the orders of the criminal court trying the case and returned to the office of the Superintendent of Police. The result of the case shall then be entered in the General Crime Register and the English Register of Cognizable Offences, and communicated to the police station concerned.” 32. Prescribed proforma 27.2(1)(a) has also been provided, under the said Rules. 33. Admittedly, the compliance of the said Rule has not been made and as such, the information, which is factually incorrect, has been submitted by the SHO, Police Station, Arki, to this Court, on the basis of the information, which has been provided to him by Police Station, Barmana. 34. 33. Admittedly, the compliance of the said Rule has not been made and as such, the information, which is factually incorrect, has been submitted by the SHO, Police Station, Arki, to this Court, on the basis of the information, which has been provided to him by Police Station, Barmana. 34. It is high time, for this Court to direct that necessary instructions are required to be issued to all the Police Stations to annex Form No.27.2(1)(a) (Charge-sheet slip) (Saja Slip) with the report under Section 173(2) Cr.PC. 35. The Court, trying the offence, is also directed to return the Saja Slip on completion of the trial, by mentioning the result of the same in it. Copy of the Saja slip, be forwarded, immediately, to the Superintendent of Police of the District, as well as, to the Police Station concerned, by way of forwarding letter and record/register, in this regard, be also maintained, so that the factum of the result of the case could be reflected, in the relevant record/register. 36. Certainly, the fate of the appeal preferred against the judgment of conviction/acquittal, will take sufficient long time and till the decision of the matter by the higher Court, in case of acquittal, the person, in whose favour, the judgment of acquittal, has been passed cannot be permitted to suffer the sting of the registration of the FIR against him, because, the Character Certificate from Police, is required for various purpose i.e. employment, and obtaining passport, arm licence etc., and whenever, a person is approaching to the Police Station for getting the Character Certificate, then, the information, which has been provided, on the basis of incomplete record, does not match with the factual position, causing inconvenience to the citizens, for whom, the entire system is meant for. 37. No doubt, the appeal is the continuation of the original proceedings, but, once, the judgment of acquittal is there, the acquitted person, has every right to get the record corrected, on the basis of the judgment of acquittal, in his favour. Merely, the appeal has been preferred, there is no legal bar for the authorities to correct the record, as no result of the appeal could be anticipated by anyone. 38. Registrar General of this Court is directed to issue administrative instructions, in this regard, to the District Judiciary. 39. Merely, the appeal has been preferred, there is no legal bar for the authorities to correct the record, as no result of the appeal could be anticipated by anyone. 38. Registrar General of this Court is directed to issue administrative instructions, in this regard, to the District Judiciary. 39. The State, through Principal Secretary (Home), is also directed to issue necessary instructions, in this regard, so that the factual position, must be reflected in the record maintained by the Police.” 20. Despite issuance of these directions, the Police, in the present case, has continued to mention the registration of the cases, against the applicant, without even trying to verify the factual position that applicant may have been acquitted in any of the cases. 21. At the cost of repetition, in the case mentioned at serial No. (i), in the list of cases, which are stated to have been registered against the applicant, judgment of acquittal was passed on 1.4.2016, whereas, status report has been filed on 24.12.2024. 22. Meaning thereby, almost eight years have elapsed from the date, when the aforesaid judgment was passed, however, no efforts have been made by the Police to update the record, even after, issuance of directions by this Court, in Babu Ram’s case (supra). 23. So far as the cases mentioned at serial Nos. 2, 3 and 4 are concerned, no doubt, these cases have been registered against the applicant, under the provisions of NDPS Act, but, admittedly, conviction has not been recorded, in any of the cases. 24. Even on the basis of the cases, which are mentioned at serial Nos. 2, 3 and 4, it cannot be stated that the applicant falls within the definition of ‘habitual offender’. While holding so, the view of this Court is being guided by the decision of Hon’ble Supreme Court in Dhanji Ram Sharma v. Superintendent of Police, North District Delhi Police’, reported in 1966 AIR SC 1766, wherein the Hon’ble Supreme Court has held, as under: “7. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 23.9(2). Mere belief is not sufficient. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender.” 25. In this regard, it is further apt for this Court to rely upon the decision of the Hon’ble Supreme Court in ‘Vijay Narain Singh v. State of Bihar’, reported in 1984(3) SCC 14 . Relevant paragraphs 11 and 12 of the said judgment are reproduced, as under:- “11. According to its ordinary meaning, the word 'habitual' as given in Shorter Oxford English Dictionary, Vol. 1,P.910 is : "A. adj (1) Belonging to the habit or inward disposition, inherent or latent in the mental constitution; (2) of the nature of a habit; fixed by habit; constantly repeated, customary. B. A habitual criminal, drunkard, etc." 12. A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In strengthen language the word ‘habitually’ means ‘by force of habit’.” 26. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 27. Consequently, the applicant is ordered to be released on bail in case FIR No. 170 of 2023, dated 5.11.2023, under Section 21 of the NDPS Act, registered with Police Station, Indora, District Kangra, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/-, with one surety in the like amount, to the satisfaction of learned trial Court. 28. Consequently, the applicant is ordered to be released on bail in case FIR No. 170 of 2023, dated 5.11.2023, under Section 21 of the NDPS Act, registered with Police Station, Indora, District Kangra, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/-, with one surety in the like amount, to the satisfaction of learned trial Court. 28. This order, however, shall be subject to the following conditions:- a) He shall make herself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application; b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) He shall not leave the territory of India without the prior permission of the Court. 29. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 30. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant. 31. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Sub-Jail, Nurpur, District Kangra, H.P., through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 32. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Sub-Jail, Nurpur, District Kangra, H.P., is directed to inform this fact to the Secretary, DLSA, Kangra. The Superintendent of Sub-Jail, Nurpur, District Kangra, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court. 33. The Superintendent of Sub-Jail, Nurpur, District Kangra, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court. 33. Before parting with the judgment, in view of the observations made hereinabove, as to how the record in the Police Stations is being maintained, this Court is of the view that directions are required to be issued to all the Superintendents of Police, in the State of H.P., to update their record, upto 30.11.2024. This exercise be completed, on or before 31.3.2025. For that purpose, the Superintendents of Police of all the Districts in the State of H.P. may make correspondence with the District & Session Judge(s) of all the Districts in the State of H.P., on administrative side, so that the record, in the Police Stations, can be updated. 34. After completing this exercise, the Superintendents of Police of all the Districts in the State of Himachal Pradesh, are directed to file compliance affidavit, before this Court, by 30.4.2025. 35. In addition to this, the Additional Chief Secretary (Home) to the Government of H.P. is directed to issue necessary directions to all the Superintendents of Police in the State of H.P. with a direction to further issue the same to all the IOs, to mention stage of the case(s), if any, found to be registered against the person, who has approached the Court, for bail, so that these facts could be presented before the Court. 36. Instructions are also required to be issued to the IOs not only to mention the details of the cases, registered against the person, who is approaching the Court, but also annex the copy(ies) of the FIR(s), alongwith the status report, so filed. 37. List on 30.4.2025, for compliance.