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Himachal Pradesh High Court · body

2025 DIGILAW 897 (HP)

Uchechukwau Emmanuel v. State of Himachal Pradesh

2025-05-05

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 28 of 2024, dated 21.2.2024, for the commission of offences punishable under Sections 21 , 22 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’), registered at Police Station Nahan, District Sirmour, H.P. As per the prosecution, the police searched a vehicle bearing registration No. HR-12Y-8814 and recovered 960 capsules containing Tramadol and other drugs. The police also recovered 22.92 grams of heroin. The police arrested Roshan Lal alias Vicky. He revealed that he had purchased the drugs from Tej Pratap. The police arrested Tej Pratap, who got the petitioner arrested. The police recovered 32.45 grams of heroin from the possession of the petitioner. The petitioner has been in judicial custody since 29.2.2024. He was falsely implicated. There is nothing to connect him with the commission of crime except the statement made by the co- accused. The prosecution has not completed the evidence, and the right to a speedy trial of the petitioner is being violated. Hence, the petition. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 20.2.2024. They received a secret information at 6.20 PM that Roshan Lal alias Vickey was selling heroin, and he would be transporting the heroin in a vehicle bearing registration No. HR-12Y-8814. The police reduced the information to writing and sent it to the Supervisory Officer. The police associated two independent witnesses and intercepted the vehicle. The police recovered 22.82 grams of heroin and 960 capsules containing Tramadol from the vehicle. The driver of the vehicle identified himself as Roshan Lal. The police arrested him and seized the drugs. Roshan Lal revealed during the interrogation that he had purchased the drugs from Tej Pratap Bhatia. He had also transferred money to the account of Tej Pratap Bhatia. Police arrested Tej Pratap Bhatia, who revealed on inquiry that he had purchased heroin from a Nigerian National who could be got arrested by him. He led the police to the petitioner. The police arrested the petitioner and recovered 32.45 grams of heroin from him. As per the report of analysis, the capsules contained Tramadol, and the sample of heroin contained Diacetyl morphine. He led the police to the petitioner. The police arrested the petitioner and recovered 32.45 grams of heroin from him. As per the report of analysis, the capsules contained Tramadol, and the sample of heroin contained Diacetyl morphine. The prosecution cited 44 witnesses out of whom five have been examined. The matter was listed on 11.3.2025 for recording the statements of prosecution witnesses. The petitioner is the supplier of heroin, and he was also found in possession of 32.45 grams of heroin. He would abscond in case of release on bail. Therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr. K.S. Gill, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. As per the prosecution, the police recovered 32.45 grams of heroin from the petitioner, which is an intermediate quantity, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. There is a delay in the progress of the trial; hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the petitioner is a supplier of heroin, which is affecting the younger generation adversely. The petitioner is a resident of a different country, and he would abscond in case of release on bail. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as follows: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. The status report shows that the petitioner was identified by Tej Pratap. The police arrested the petitioner and recovered 32.45 grams of heroin from the petitioner. It was laid down by the Hon’ble Supreme Court in Mehboob Ali v. State of Rajasthan , (2016) 14 SCC 640 : (2016) 4 SCC (Cri) 412: 2015 SCC OnLine SC 1043 , that when the accused furnished the information leading to the discovery of the accused from whom forged currency notes were recovered, such a discovery is admissible under Section 27 of the ND&PS Act. It was observed at page 646: - “15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz, and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the police. The statements of both the accused have led to the discovery of the fact and arrest of the co-accused, not known to the police. They identified him, and ultimately, statements have led to unearthing the racket of the use of fake currency notes. Thus, the information furnished by the aforesaid accused persons vide information memos is clearly admissible, which has led to the identification and arrest of accused Anju Ali, and as already stated, from possession of Anju Ali's fake currency notes had been recovered. As per information furnished by the accused Mehboob and Firoz vide memos Exts. P-41 and P-42, the fact has been discovered by police as to the involvement of the accused Anju Ali, which was not to the knowledge of the police. The police was not aware of the accused Anju Ali, as well as the fact that he was dealing with fake currency notes, which were recovered from him. Thus, the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons, and the entire chain of circumstances clearly makes out that the accused acted in conspiracy as found by the trial court as well as the High Court. xxxxxxx 20. Considering the aforesaid dictums, it is apparent that there was a discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-accused was nabbed on the basis of identification made by the accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of the police through them. Recovery of forged currency notes was also made from Anju Ali. Thus, the aforesaid accused had the knowledge about co-accused Anju Ali, who was nabbed at their instance and on the basis of their identification. That he was dealing with fake currency notes came to the knowledge of the police through them. Recovery of forged currency notes was also made from Anju Ali. Thus, the aforesaid accused had the knowledge about co-accused Anju Ali, who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in Sections 25 and 26 of the Evidence Act.” 10. In the present case, the statement made by Tej Pratap, leading to the discovery of the petitioner, would be admissible under Section 27 of the Indian Evidence Act, and there is sufÏcient material to connect the petitioner with the commission of a crime. 11. It was submitted that the petitioner was found in possession of an intermediate quantity of heroin, and he is entitled to bail as a matter of right. This submission is not acceptable. This Court laid down in Dilbar Khan v. State of H.P., 2022 SCC OnLine HP 2441, that a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter of right. It was observed: - “9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the quantity of contraband recovered is less than the commercial quantity may not, by itself, be sufÏcient to grant bail. 10. The menace of drug abuse is not unknown in society in modern times. The victims are innocent adolescents, among others. Drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organised manner.” 12. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organised manner.” 12. It was laid down by this Court in Khushi Ram Gupta v. State of H.P. , 2022 SCC OnLine HP 3779 , that the menace of drug addiction has seriously eroded into the fabric of society, and the release of an accused on bail in NDPS Act cases will send a negative signal to society. It was observed: “8. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril. 9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with law, it cannot be taken singly as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of the State of Himachal Pradesh. Thus, there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which will definitely be detrimental to its interests. 10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.” 13. Similarly, it was held in Bunty Yadav v. State of H.P. , 2022 SCC OnLine HP 4996 that even where the rigours of Section 37 of the NDPS Act are not applicable, the bail cannot be claimed as a matter of right. Each case has to be adjudged on its own facts. It was observed: “6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Each case has to be adjudged on its own facts. It was observed: “6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity, nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In a case where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case. 7. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.” 14. The Karnataka High Court took a similar view in Sri. Thaha Ummer vs Union of India Criminal Petition No.9450/2022 decided on 09-11-2022 and held that merely because Section 37 of the NDPS Act does not apply, a person involved in the commission of an offence punishable under the NDPS Act cannot be released on bail as a matter of right. 15. In the present case, the petitioner was stated to be a drug peddler by Tej Pratap, and there is force in the submission of Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State that the heroin is adversely affecting the younger generation and cannot be viewed lightly. Hence, the petitioner cannot be released on this consideration. 16. It was submitted that the trial is not progressing and the petitioner’s right to a speedy trial is being violated. This submission is not acceptable. The statements of eight witnesses were recorded till 11.3.2025, and the matter was listed on 9.4.2025 for recording the statements of prosecution witnesses, therefore, the trial is progressing normally, and the petitioner is not entitled to bail on the ground of violation of his right to a speedy trial. 17. In view of the above, the present petition fails and the same is dismissed. However, the petitioner is at liberty to approach the Court in case the trial is not concluded within a reasonable time. 18. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.