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2025 DIGILAW 315 (HP)

Manoj Kumar @ Pathak v. State of Himachal Pradesh

2025-03-07

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), applicant-Manoj Kumar @ Pathak has sought his release, on bail, during the pendency of the trial, in Case FIR No. 156 of 2024, dated23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Manali, District Kullu, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in the present case and has been arrested by the police for allegedly possessing 112 gms of charas and 5 grams of chitta/heroin. 3. As per applicant, the contraband, allegedly recovered in the present case, does not fall within the definition of ‘commercial quantity’. As such, rigors of Section37 of the NDPS Act are not applicable, in this case. 4. It is the case of the applicant that in the present case, investigation is complete and charge-sheet has been submitted, before the Court of learned Additional Sessions Judge, Kullu, H.P. 5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Kullu, Himachal Pradesh. However, the same was dismissed vide order dated20.11.2024. 6. Thereafter, the applicant had moved another bail application, before the Court of learned Special Judge-II, Kullu, District Kullu, Himachal Pradesh. However, the same was also dismissed vide order dated 15.01.2025, mainly on the ground of his criminal history. 7. The applicant is stated to be in judicial custody from 23.09.2024 and according to him, the chances of conclusion of trial, against him, are not so bright. As such, he has prayed that no useful purpose would be served by keeping him in the judicial custody, that too, for the indefinite period. 8. Highlighting the criminal history, the applicant has pleaded that two other cases, i.e. FIR No.79/23, registered under the provisions of NDPS Act, with Police Station Manali and FIR No.119/10, registered under Sections 323, 341, 427, 506 and 34 IPC, with Police Station Manali, have been registered against him. 9. Apart from this, Mr. 8. Highlighting the criminal history, the applicant has pleaded that two other cases, i.e. FIR No.79/23, registered under the provisions of NDPS Act, with Police Station Manali and FIR No.119/10, registered under Sections 323, 341, 427, 506 and 34 IPC, with Police Station Manali, have been registered against him. 9. Apart from this, Mr. Anubhav Chopra, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 10. On the basis of the above facts, 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 Investigating Officer of the present case, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics. 12. It is the further case of the police that when, the police party was conducting the routine checking of vehicles, near Smahan Bazaar at NH-03, then, at about 12:30 am, he stopped a vehicle, being driven by its driver, coming from Manali side and going towards Bahang side, for checking and its registration number was found to be HP-58-A-7320 make Maruti Brezza, red colour. The driving licence of the driver was demanded and on checking, the same was found to be issued in the name of Manoj Kumar (applicant). Manoj Kumar (applicant) has disclosed to the police that he is owner of the vehicle, but, is not having RC of the said vehicle. 13. It is the further case of the police that thereafter, the smell of smoke of cigarette was found inside the vehicle and on the rear seat, a man and a woman were found sitting there. On enquiry, the woman disclosed her name as Sunita, R/o District Nainital and the man disclosed his name as Anil Kumar, R/o Manali. On checking of the vehicle, charas, weighing 112 grams and chitta, weighing 5 grams, were found, which was taken into possession and other codal formalities were completed. 14. After registration of the FIR, the police has arrested the applicant. 15. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act. 14. After registration of the FIR, the police has arrested the applicant. 15. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act. Subsequently, positive report, regarding the contraband, has been received from SFSL, Junga. Thereafter, on the basis of opinion, given by Medical Officer, Section 27 of the NDPS Act has been added, in this case. 16. As per the status report, following two other cases are stated to have been registered against the applicant:- “1. FIR No.119/10 dated 05.05.2010, under Section 341, 323, 506, 427 and 34 of IPC, with PS Manali, District Kullu. 2. FIR No.79/23 dated 15.05.2023, under Sections 21, 25 and 29 of NDPS Act, with PS Manali, District Kullu. 17. The abovesaid cases are stated to be pending adjudication. 18. The charge-sheet is stated to have been filed in the Court of learned Additional Sessions Judge, Kullu (hereinafter referred to as the ‘trial Court’) and the case was stated to be fixed for 07.02.2025. 19. On the basis of the above facts, a prayer has been made to dismiss the bail application. 20. Heard. 21. In the present case, investigation is complete and according to the status report, the police has submitted the challan in the learned trial Court. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 22. In this case, the contraband, allegedly stated to have been recovered, is 112 grams of charas and 5 grams of heroin/chitta. Admittedly, the said contraband does not fall, within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case. 23. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, in that eventuality, the presumption of innocence is still available to the applicant, as the bail application cannot be rejected merely as a matter of punishment, since, pre-trial punishment is prohibited under the law. 24. Even otherwise, the chances of commencement and conclusion of trial against the applicant, in near future, are not so bright. As such, he cannot be kept in judicial custody, that too, for the indefinite period. 25. 24. Even otherwise, the chances of commencement and conclusion of trial against the applicant, in near future, are not so bright. As such, he cannot be kept in judicial custody, that too, for the indefinite period. 25. Moreover, the applicant is the resident of District Kullu and as such, it cannot be apprehended that in case, he is ordered to be released on bail, he may not be available for the trial. 26. So far as the registration of other two cases is concerned, admittedly, in those cases, the competent Court of law has not inflicted any punishment to the applicant. Mere registration of other two cases, against the applicant, is also not sufficient to take away the presumption of innocence, which is still available to the applicant. 27. Considering the peculiar facts and circumstances of the present case, according to which, the police has added Section 27 of the NDPS Act, in this case, on the basis of the report of Medical Officer, this Court is of the view that the applicant deserves to be released on bail, being victim of the drugs. 28. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 29. Consequently, the applicant is ordered to be released, on bail, in case FIR No.156 of 2024, dated 23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the NDPS Act, with Police Station Manali, District Kullu, H.P., on his furnishing personal bonds in the sum of Rs.50,000/- with two sureties of the like amount, to the satisfaction of the learned trial Court. 30. 30. This order, however, shall be subject to the following conditions:- a) The applicant shall make himself 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) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant 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) The applicant shall not leave the territory of India without the prior permission of the Court. 31. 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. 32. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant. 33. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Kullu, H.P., through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 34. In case, applicant is not released within a period of seven days, from the date of grant of bail, the Superintendent of District Jail, Kullu, H.P., is directed to inform this fact to the Secretary, DLSA, Kullu. The Superintendent of District Jail, Kullu, H.P., 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.