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2025 DIGILAW 341 (HP)

Deepak Kashyap v. State of Himachal Pradesh

2025-03-11

VIRENDER SINGH

body2025
JUDGMENT : (Virender Singh, J.) By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘ BNSS ’), applicant-Deepak Kashyap has sought his release, on bail, during the pendency of the trial, in case FIR No.180 of 2024, dated 06.11.2024, registered under Sections 21, 29-61-85 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Kangra, District Kangra, 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 29.10 gms of chitta/heroin, along with currency notes and ornaments. 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 Section 37 of the NDPS Act are not applicable, in this case. 4. It is the case of the applicant that he has no concern whatsoever with the crime, for which, he has been arrested. The investigation is also stated to be complete. 5. Applicant, in the present bail application, has himself admitted that apart from the present case, three other cases have also been registered against him, but, according to him, he has not been convicted in any of the cases, the particulars of which are reproduced, as under:- i. FIR No.142/2023 dated 19.08.2023 under Section 21 of the NDPS Act at PS Dehra. ii. FIR No.18/2023 dated 18.01.2023 under Section 21 of the NDPS Act at PS Mohali. iii. FIR No.118/2024 dated 18.11.2024 under Section 21 of the NDPS Act at PS Gagret. 6. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Kangra at Dharamshala, District Kangra, Himachal Pradesh. However, the same was dismissed vide order dated 14.01.2025. 7. Apart from this, Mr. Vijender Katoch, 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. 8. On the basis of the above facts, a prayer has been made to allow the bail application. 9. Vijender Katoch, 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. 8. On the basis of the above facts, a prayer has been made to allow the bail application. 9. When, put to notice, the police has filed the status report, disclosing therein, that Sub-Inspector Gurdev Singh, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics. 10. It is the further case of the police that on 06.11.2024, at about 09:30pm, when, the police party was present at a place known as ‘Vodhar Valla’, then, he received a secret information regarding the indulgence of Pawan Kumar and Neena Devi, in the business of selling chitta. As per informant, in case, their house is searched, then, the large quantity of heroin/chitta could be recovered. The said information was found to be authentic and reliable and due to paucity of time, it was not possible for police party to obtain search warrant or authorization, as, according to the Investigating Officer, in case of delay, there were chances that the contraband could be shifted from the spot. As such, IO has complied with Section 42(2) of the NDPS Act and thereafter, he has associated two independent witnesses, namely Ashwani Kumar and Sunil Dutt. 11. It is the further case of the police that subsequently, the raiding party, formed by the IO, reached at the spot i.e. house of Pawan Kumar and his wife Neena Devi. Both of them were apprised about the secret information and thereafter, other codal formalities were complied with. Their room was searched and during the search, 26.10 gms of heroin/chitta was recovered, which was taken into possession. Apart from this, gold and silver ornaments, as well as, currency notes, total amounting to Rs.44,580/-, were also found there, which were also taken into possession. 12. After registration of the FIR, the police has arrested both the accused persons. 13. During the investigation, from the possession of Neena Devi, one mobile phone, along with SIM card, was found, which was also taken into possession and the same was put under observation. 14. 12. After registration of the FIR, the police has arrested both the accused persons. 13. During the investigation, from the possession of Neena Devi, one mobile phone, along with SIM card, was found, which was also taken into possession and the same was put under observation. 14. During the police custody, accused Pawan Kumar has disclosed that he has purchased the chitta on 04.11.2024 from a person, namely Deepak R/o Hoshiarpur (applicant). The payment was made in cash. Thereafter, the copy of the Consumer Application Form of Deepak was obtained. His address was ascertained and subsequently, he was searched. During search, his uncle disclosed that Deepak is in custody in a case, registered with Police Station Gagret. On the basis of revelations, Deepak Kashyap (applicant) was arrested. 15. Police has also given the details of three cases, which have been registered against the applicant, details of which are already reproduced in the foregoing para. 16. After completion of investigation, charge-sheet has been filed against the accused persons, which is stated to be pending adjudication, before the Court of learned Additional Sessions Judge-I, Kangra at Dharamshala (hereinafter referred to as the ‘trial Court’). 17. On the basis of the said criminal history, a prayer has been made to dismiss the application. 18. Heard. 19. In this case, admittedly, the contraband, allegedly stated to have been recovered, 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. 20. 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. 21. Although, the offences, under the NDPS Act, are non-bailable, but, the Legislature, in its wisdom, has specifically applied the rigors of Section 37 of NDPS Act only on those cases, in which, the contraband, so recovered, falls within the definition of ‘commercial quantity’. 22. The main ground, upon which, the prayer has been opposed, is the registration of three other cases, as detailed in the application and reproduced in preceding para. 22. The main ground, upon which, the prayer has been opposed, is the registration of three other cases, as detailed in the application and reproduced in preceding para. Admittedly, all three cases are still pending and the applicant has not been convicted by the competent Court of law in any of the cases. Without conviction in any of the cases, the question of declaring the accused as ‘habitual offender’ does not arise. 23. The applicant is in judicial custody since 16.11.2024 and according to the status report, the case is now listed for 15.03.2025 only for consideration on charge, in the learned trial Court. Meaning thereby, 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 the judicial custody, that too, for the indefinite period. 24. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 25. Consequently, the applicant is ordered to be released, on bail, in case FIR No.180 of 2024, dated 06.11.2024, registered under Sections 21, 29-61-85 of the NDPS Act, with Police Station Kangra, District Kangra, H.P., on his furnishing personal bonds in the sum of Rs.1,00,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court. 26. 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. 27. Any of the observations, made hereinabove, 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. 28. 27. Any of the observations, made hereinabove, 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. 28. 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. 29. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 30. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Kangra. The Superintendent of Jail, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, District Kangra, Himachal Pradesh, 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.