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2025 DIGILAW 608 (HP)

Sudesh Kumar v. State of Himachal Pradesh

2025-04-03

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-Sudesh Kumar has sought his release, on bail, during the pendency of the trial, in case FIR No.25 of 2025, dated 17.02.2025 registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’) with Police Station Gaggal, District Kangra, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in this case. 3. It has been averred in the application that the contraband, allegedly shown to be recovered, in this case, is 7.31 grams heroin/chitta, which does not fall within the definition of ‘commercial quantity’. As such, according to him, rigors of Section 37 of NDPS Act are not applicable, in this case. 4. Investigation, in the present case, is stated to be completed and nothing is stated to be recovered from the applicant or at his instance. 5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-I, Kangra at Dharamshala, District Kangra, Himachal Pradesh. However, the same was dismissed vide order dated 15.03.2025. 6. It is the further case of the applicant that no other criminal case has been registered against him. 7. Apart from this, Mr. Kush Sharma, 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 on 17.02.2025, HC Deepak Kumar, has submitted a rukka to Police Station Gaggal, District Kangra, H.P., disclosing therein that on that day, he alongwith other police officials was on patrolling duty: 9.1 According to him, at about 8:10 PM, when he was present near Sanoura Chowk, then, he received a secret information, regarding the fact, that on the NH-154, on the Sarah link road, about hundred yards on the link road, two persons were standing. Out of the two persons, one was stated to have worn a black coloured jacket, whereas the other person was stated to have worn a green coloured jacket and that the said persons were having chitta in their possession. As per the secret information, if the said persons were nabbed, then chitta/heroine could be recovered in the large quantity. 9.2 The said information was found to be authentic and according to the IO, due to paucity of the time, it was not possible to obtain the search warrant/authorization, as such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the requisite report to SDPO, Kangra. 9.3. Thereafter, independent witness, namely Ravinder Baba, Ex-Pradhan of Gram Panchayat, Gaggal was associated by apprising him about the information, which the IO had received. Thereafter at about 8:40 PM, two persons, described by the informant, were found standing there. 9.4. On seeing the police party, they become perplexed and tried to flee away from the spot, however, they were nabbed. By that time, the person, wearing light green coloured jacket, cleverly put his hand in right pocket of the jacket and threw a black coloured box in the bushes. When inquired about the same, he could not give any satisfactory answer, which developed a suspicion in the mind of IO that they might be having some objectionable/narcotic substance in their possession. 9.5 On inquiry, in the presence of the independent witness, the person, who had worn the light green coloured jacket, disclosed his name as Sudesh Kumar (applicant), whereas, the other person disclosed his name as Amar Kumar. Thereafter, the black coloured box, which was thrown by Sudesh Kumar (applicant) was opened by HC. Deepak Kumar. On opening the same, it was found containing light brown coloured substance, which, on the basis of experience, was found to be Chitta/heroin. On weighment, the said chitta was found to be 7.31 grams. Other codal formalities were completed. 9.6 Thereafter, the FIR in question has been registered and the accused were arrested. 9.7. Subsequently, the contraband, so recovered, was sent to SFSL Junga, for chemical analysis, after complying with the provisions of Section 52A of the NDPS Act and positive report has been received. 9.8. As per the status report, no other case has been found to have been registered against the applicant. The investigation is also stated to be completed. 9.7. Subsequently, the contraband, so recovered, was sent to SFSL Junga, for chemical analysis, after complying with the provisions of Section 52A of the NDPS Act and positive report has been received. 9.8. As per the status report, no other case has been found to have been registered against the applicant. The investigation is also stated to be completed. However, the prayer, so made in the application, has been opposed on the ground that due to the effect of the Narcotics, the younger generation is being ruined. 10. On the basis of the above facts, a prayer has been made to dismiss the application. 11. 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. 12. 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. 13. In the present case, investigation is complete and the challan is under process. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 14. Even otherwise, the bail application cannot be rejected, as a matter of punishment, as, the punishment can only be inflicted, after the conclusion of trial and in the present case, 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. 15. Except the present case, no other criminal history of the applicant has been mentioned in the status report, nor the same has been argued by learned Additional Advocate General, during the course of arguments. 16. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 17. 15. Except the present case, no other criminal history of the applicant has been mentioned in the status report, nor the same has been argued by learned Additional Advocate General, during the course of arguments. 16. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 17. Consequently, the applicant is ordered to be released, on bail, in case FIR No.25 of 2025, dated 17.02.2025, registered under Sections 21 and 29 of the NDPS Act, with Police Station Gaggal, District Kangra, H.P. on his furnishing personal bonds in the sum of Rs.60,000/-, with one surety of the like amount, to the satisfaction of the learned Chief Judicial Magistrate, Dharamshala/any Judicial Magistrate First Class, stationed at Dharamshala or Kangra. 18. 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. 19. 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. 20. 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. 21. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Kangra at Dharamshala, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the eprison software. 22. 21. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Kangra at Dharamshala, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the eprison software. 22. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Kangra at Dharamshala, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Kangra at Dharamshala. The Superintendent of Jail, District Jail, Kangra at Dharamshala, 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.