Himachal Pradesh High Court
Reserved On: 18.07.2024 vs State Of Himachal Pradesh on 26 July, 2024
2024:HHC:6025 REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA Cr.MP(M) No.1016 of 2024 Reserved on: 18.07.2024 Announced on: 26.07.2024 __________________________________________________________ .
Krishan Kumar Nayyer ......Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? Yes For the petitioner: Mr. Ankit Dhiman, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
Ranjan Sharma, Judge Bail petitioner, Krishan Kumar Nayyer, has come up before this Court seeking regular bail under Section 439 of the Code of Criminal Procedure [hereinafter referred to as 'Cr.P.C.'], originating from FIR No.16 of 2024, dated 11.01.2024, under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, [hereinafter referred to as 'NDPS Act'] registered at Police Station [Sadar], Una, District Una, 1 Whether reporters of Local Papers may be allowed to see the judgment?
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[H.P.].
FACTUAL MATRIX:
2. Case set up by Mr. Ankit Dhiman, learned .
counsel for bail petitioner-accused [Krishan Kumar Nayyer], is that petitioner is resident of Mohalla Kamalpur, Gali No.9, Hoshiarpur, District Hoshiarpur [Punjab] and he is in judicial custody from 12.01.2024 in District Jail Bangarh, District Una.
2(i). It is averred in the bail petition that bail petitioner has been falsely implicated by police. It is averred that one Rajneesh Verma was detained by the police on 11.01.2024 in relation to above FIR No.16 of 2024, which led to the arrest of the bail petitioner. It is averred that the petitioner has not committed any offence at any point of time and is innocent.
2(ii). It is further averred that bail petitioner had moved an application No.55 of 2024 before Learned Special Judge-II, Una [hereinafter referred to as "Trial Court"] which was dismissed on 06.03.2024, Annexure P-3. After dismissal of bail application by Learned Trial ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 -3- REPORTABLE Court, the petitioner had filed a bail application [Cr.MP(M) No.596 of 2024], before this Court, which was withdrawn on 27.03.2024, Annexure P-1. The petitioner .
again moved the Learned Special Judge in bail application No.CIS No.121 of 2024 and this bail application was also rejected by the Learned Special Judge-II, Una, on 30.04.2024, Annexure P-2.
2(iii). It is averred that the brother of the bail petitioner is 80% disabled. Petitioner has referred to his past criminal antecedents in Para 8 of the bail application. It is further averred that no recovery has been made by the police from the bail petitioner. The bail petitioner has given an undertaking that he shall associate in the investigation and the trial in case he is enlarged on bail with further undertaking that he shall not tamper with the prosecution evidence and shall not threaten prosecution witnesses or the persons who are connected with the aforesaid case in any manner. It is in this background, that the bail petitioner has come up ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 -4- REPORTABLE before this Court seeking regular bail.
PROCEEDINGS BEFORE THIS COURT:
3. Instant bail application Cr.MP(M) No.1016 of .
2024, was listed before this Court on 13.05.2024 when, this Court issued notice to the Respondent-State Authorities to file the Status Report. The matter was listed on 30.05.2024 when, the Status Report dated 27.05.2024 was furnished by the State Authorities.
The matter was again listed on 21.06.2024 and then on 05.07.2024 when, the matter was adjourned, so as to enable the Learned State Counsel to furnish a Fresh Status Report.
3(i). The Fresh Status Report dated 12.07.2024 was furnished by the State Authorities. Copy of the Status Report(s) were supplied to Learned Counsel for the petitioner, who prayed for time to go through the Status Report and make submissions. Accordingly, the matter was listed on 18.07.2024 and with the consent of the parties, the same has been taken for disposal at this ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 -5- REPORTABLE stage. Learned counsel for the petitioner has contended that since the investigation is complete and challan has been presented before the jurisdictional Court on .
01.03.2024 and matter is fixed for prosecution evidence on 07.09.2024, therefore, the bail petitioner may be enlarged on bail.
STAND OF STATE AUTHORITIES IN STATUS REPORTS:
4. A perusal of the Status Reports dated 27.05.2024 and 12.07.2024 filed by State Authorities reveal that the same are pari materia.
4(i). A perusal of the Status Reports, reveal the sequence of events that on 10.01.2024, the police patrolling party headed by ASI Ram Pal, were checking vehicles near Raizada Guest House, Lal Singhi, District Una, at about 11:20 p.m. During checking a vehicle No.HP-01M-2482, reached the spot and on directions of police, the driver, stopped the car. The person, next to the driver's seat Rajneesh Verma, on noticing the police, threw out a transparent polythene pouch with ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 -6- REPORTABLE interlocking seal containing Heroin/Chitta. The police took possession of aforesaid Chitta/Heroin in the presence of witnesses and on weighing, the .
Chitta/Heroin came to be 6.13 grams. Post recovery, all codal formalities under the NDPS Act were completed and based on the Rukka, the FIR was registered against the accused Rajneesh Verma, from whom the recovery was affected and Rajneesh Verma was arrested by the police on 11.01.2024.
4(ii). During investigation the accused Rajneesh Verma revealed that he purchased Chitta/Heroin from the bail petitioner [Krishan Kumar Nayyer] from Ghoda Chowk at Hoshiarpur [Punjab]. Based on this, the police authorities took the accused, Rajneesh Verma to Ghoda Chowk, Hoshiarpur [Punjab] on 12.01.2024, where, he recognized the bail petitioner and accordingly the bail petitioner was arrested on 12.01.2024, by the police party of Police Station [Sadar] Una.
4(iii). On arrest, on 12.01.2024, the bail petitioner
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[Krishan Kumar Nayyer], stated that he is a vegetable seller and his family ties have broken as a result of divorce three years back. He has further stated that he .
has three children who reside with the wife. The bail petitioner further stated that for the last one and half year, he had been consuming Heroin/Chitta and had also indulged in the "sale and purchase of Heroin/Chitta to earn livelihood". Records reveal that the bail petitioner had sold the Heroin/Chitta to the main accused, Rajneesh Verma, weighing 6.13 grams, for Rs.13,400/-, which was recovered by the police.
4(iv). Status Reports further indicate that seven criminal cases have been registered against the bail petitioner, out of which, in four cases, he has been convicted and in two cases he has been acquitted and one case is pending trial.
In view of the Status Reports, Learned State Counsel has prayed for the dismissal of the bail application, in the instant case.
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5. Heard Mr. Ankit Dhiman, Learned Counsel for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the respondent-State.
.
STATUTORY PROVISIONS:
6. In order to test, the claim, for enlargement on bail, it is necessary to have a recap of the provisions of Section 21 and 29 of the NDPS Act, which reads as under :-
r "Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation to manufactured drugs and preparations-
Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable ,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;::: Downloaded on - 30/07/2024 22:01:42 :::CIS
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(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one .
lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
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MANDATE OF LAW:
7. Notably, the offences under the NDPS Act
including Section 21 of the aforesaid Act, as in this .
case are cognizable, therefore, the claim of the suspect-accused for post arrest bail-regular bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 11 - REPORTABLE SCC 01.
7(i). While dealing with the case for grant of regular bail, under Section 439 Cr PC, the three judges .
bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25 that the nature of the crime has a huge relevancy, while considering claim for bail.
7(ii).
of Uttar Pradesh,
r to
In the case of Ansar Ahmad versus State 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:::: Downloaded on - 30/07/2024 22:01:42 :::CIS
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(i) The nature of the accusation weighing
in the gravity and severity of the
offence;
(ii) The severity of punishment;
(iii) The position or status of the accused,
.
i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if r left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be.
7(iii). In CBI versus Santosh Karnani, (2023) 6
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SCALE 250, the Hon'ble Supreme Court has reiterated the illustrative time tested broad parameters which are required to be taken into account while considering .
the prayer for bail ; which have recently been reiterated by the Hon'ble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC OnLine SC 1085.
7(iv). This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court, is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation; the nature of evidence collected;
the gravity of offence; the role attributed to each of the accused; the severity of punishment prescribed for an offence(s); the character of the accused; the possibility of securing presence of accused during the trial; the apprehension of witnesses being tampered; and the possibility of an accused causing any threat or inducement ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 14 - REPORTABLE to witnesses; and the rights of an accused vis-à-vis societal rights have to be balanced and by forming a prima facie opinion in the context of above broad-parameters, without .
delving into merits, as it may tend to prejudice the rights of accused as well as prosecution.
OBJECT OF NDPS ACT:
8. Even in order to examine the claim for bail under the NDPS Act, this Court deems it necessary, to have a recap of the Preamble of the NDPS Act, which reads as under:
r "An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith"
8(i). While dealing with the object of the NDPS Act, the Hon'ble Supreme Court, in Durand Didier, (1990) 1 SCC 95, has mandated that the devastating menace of clandestine smuggling and illegal trafficking in drugs and substances has led to drug addiction amongst a sizeable section of the society, the adolescents and the youth, ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 15 - REPORTABLE having a deleterious effect and deadly impact on the society, with the following observations:
19. In view of the above position, it cannot be contended that the prohibited drugs and .
substances seized from the appellant's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
20. It may not be out of place to mention that even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
21. Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
22. We, for the above reasons, see no merit in this contention also. The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows:
"The spreading of the drugs in Gao is becoming day by day a terrible menace which is completely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe punishment in case of illegal possession ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 16 - REPORTABLE and transportation of drugs meant for personal consumption and eventual trade."
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling .
of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this r Act 81 of 1985 specifying mandatory minimum imprisonment and fine....".
8(ii). Even a suspect or an accused under NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely because the accusation is relating to either small or intermediate quantity of contraband. Courts cannot feign ignorance that it is the modus operandi of Drug Mafia's or Master-minds or King Pins of such trade, who primarily act through persons who are either indigent or are poor or are unemployed or have unwarranted and unexpected financial expectations so as to become over night rich or to rope in the persons who ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 17 - REPORTABLE suffers financial liability etc., by initially alluring them to act as small peddlers by inducing them to trafficking of small quantity and intermediate quantity of contraband .
with predesigned calculation, that they may have an easy escape, in case, they are apprehended in view of the quantity being small or intermediate. Day in and day out, such instances are endlessly flowing and are constantly on the rise. With the passage of time, these peddlers turn out to be habitual offenders, being involved in numerous cases under the NDPS and under other statutes.
8(iii). It is high time that the drug trafficking and menace needs to be dealt with iron hands. If the available material, points towards the prima facie case or carves out reasonable grounds to believe towards the accusation or culpability or involvement then, in larger interest of the society the rule of law needs to be strictly enforced and any drug peddler or trafficker or person cannot be permitted to be enlarged on bail, ipso facto, merely because the quantity of contraband involved is either small or intermediate. Enlarging such persons on bail, shall certainly amount to sacrificing ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 18 - REPORTABLE the society, the state and of course, the nation, to such nefarious activists.
8(iv). To attain the "objective of the NDPS Act"
.
and to ensure the "Rule of Law", a person who is prima facie involved in nefarious drug abuse has no vested right to be enlarged on bail merely by asserting violation of personal liberty, under Article 21 of the Constitution of India. Assertion of an infringement of personal liberty, has to succumb to the larger societal interests, which is obviously at a much higher pedestrian.
Personal liberty of a person cannot be in the realm of absolutism and can never be an uncontrolled and unrestricted one. Personal liberty of a person ends, where, the liberty of others including societal interests, are sought to be or are actually violated having deleterious effect on the society. The rights of the community, society and the nation stand at higher pedestal vis-à-vis the personal liberty of an accused, which shall certainly have to succumb to the larger societal interests, in terms of the mandate of law, in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) 9 SCC 446, as under:::: Downloaded on - 30/07/2024 22:01:42 :::CIS
2024:HHC:6025 - 19 - REPORTABLE "17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes .
it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted r principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 20 - REPORTABLE a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise .
exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference r within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti collective act.
30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 21 - REPORTABLE to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents .
are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
CONTENTIONS OF PETITIONER:
9. Learned counsel for the petitioner has prayed for bail on the ground(s); firstly, no recovery has been made from the bail petitioner; and secondly, once a co-delinquent-main accused Rajneesh Verma has been granted bail then, petitioner deserves parity;
and thirdly, the past criminal antecedents cannot form the basis for denying bail.
ANALYSIS:
10. Taking into account the entirety of the facts and circumstances, as borne out from the material on record, including the Status Reports, the Statutory ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 22 - REPORTABLE Provisions and the mandate of law, as referred to above, this Court is of the considered view, that the bail petitioner [Krishan Kumar Nayyer], is not entitled .
to be enlarged on bail, at this stage, for the following reasons:-
10(i). The Status Reports points towards the prima facie accusation against the bail petitioner.
10(ii). Material on record borne out from Status Reports, reveal that reasonable grounds exist to believe the accusation against the bail petitioner, who resorted to use and sale-purchase of contraband [Heroin/Chitta], as in this case.
Status Report suggests that the petitioner despite being a vegetable seller had sold the contraband to Rajneesh Verma-accused for Rs.13,400/- which was recovered by the police on 10.01.2024 from Rajneesh Verma. Even the fact that the petitioner indulged in the use, sale and purchase of Heroin-Chitta, for more than one and half year in the past reflects the accusation.::: Downloaded on - 30/07/2024 22:01:42 :::CIS
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10(iii). The first contention of Learned Counsel for
petitioner that no recovery has been made from bail petitioner.
.
The above contention cannot come to the rescue of bail petitioner. Even if no recovery was affected but the illegal activities revealing use, sale and purchase of Heroin/Chitta, therefore, even in absence of recovery, the accusation based on use, sale and purchase is prima facie borne out, at this stage.
10(iv). The second contention of the Learned counsel for the petitioner that another accused Rajneesh Verma has been enlarged on bail.
The above contention is without any force, when, accused has neither any vested nor automatic right for on bail on the ground of parity in view of the mandate of law, in Ramesh Bhavan Rathod vs. Vishanbai Hirabhai Makwana (Koli) and Another, (2021) 6 Supreme Court Cases 230, whereby, every case needs to be examined keeping in view the role of ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 24 - REPORTABLE accused in relation to an incident and the victims, in the following terms:-
"26. .....The High Court has evidently misunderstood the central aspect of what is meant by parity.
.
Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which r again cannot pass muster under the law."
The above principle of law has further been reiterated, by Hon'ble Supreme Court in Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486, as under:
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/ controller of various shell ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 25 - REPORTABLE companies were granted bail on the ground of infirmity and medical grounds. The co- accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent .
before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court."
Taking into account the mandate of law in case of Ramesh Bhavan Rathod & Tarun Kumar (supra), this Court deals with the role of the present bail petitioner [in custody vis-à-vis co-accused, Rajneesh Verma, who was enlarged on bail]. The material on record indicates that the bail petitioner [Krishan Kumar Nayyer] ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 26 - REPORTABLE has resorted to "use" of Heroin/Chitta for last one and half year and has indulged in "Sale" of Heroin, which is sufficient to term the petitioner as "Supplier" of .
Heroin/Chitta.
Moreover, the grant of bail to co-accused, [Rajneesh Verma], being his first accusation and with no criminal antecedents under the NDPS Act cannot be the basis for parity, when, the bail petitioner is a history sheeter having seven criminal cases and four cases are under the NDPS Act. Further, the role of the bail petitioner is that of a supplier of narcotics-drugs, as has supplied Heroin/Chitta to Rajneesh Verma, is grave-
serious accusation; coupled with the fact that petitioner is a history-sheeter; and therefore, all these factors taken together, disentitle the petitioner for bail, on principle of parity in larger societal interests, at this stage.
10(v). The third contention of the Learned Counsel for the petitioner that criminal antecedents cannot form the basis for denying bail. The above ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 27 - REPORTABLE contention is without force, for the reason that criminal antecedents are important factors, which cannot be ignored, when, the past criminal antecedents reveal the .
propensity of an accused for committing crime, one after the other in 2024 SCC OnLine HP 3009, Mukesh Sharma versus State of Himachal Pradesh, which reads as under:-
"23. xxx ... xxx ... xxx
28. This Court in Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC 446 observed that rthough the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty, was underlined.
29. In Neeru Yadav v. State of U.P. (2016) 15 SCC 422: after referring to a catena of judgments of this Court on the consideration of factors for grant of bail observed through Dipak Misra, J. (as His Lordship then was) in paras 15 and 18 as under:
"15. This being the position of law, it is clear as a cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove are not minor offences so ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 28 - REPORTABLE that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create thunder and lightning having the effect potentiality of .
torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kinds of accused persons to be at large and, therefore, the emphasis is on the exercise of discretion judiciously and not in a whimsical manner.
***
18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been r taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order [Budhpal v. State of U.P., 2014 SCC OnLine All 14815]."
30. In Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129: this Court has spelt out some of the significant considerations which must be placed in the balance in deciding whether to grant bail: (SCC p. 138, para 17) "17. While granting bail, the relevant considerations are (i) the nature of seriousness of the offence; (ii) the character of the evidence and circumstances which are peculiar to the accused; and (iii) the likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 29 - REPORTABLE likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard-and-fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious .
exercise of discretion by the Court."
24. It was observed in Jaibunisha v. Meharban, (2022) 5 SCC 465: that the period of custody has to be weighed with criminal antecedent.
It was observed at page 478: -
"21.6. Another factor which should guide the court's decision in deciding a bail application is the period of custody. However, as noted in Ash Mohammad v.
Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3 SCC (Cri) 1172], the period of custody has to be weighed simultaneously with the totality of r the circumstances and the criminal antecedents of the accused, if any.
Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the accused seeking bail."
25. It was held in Bharwad Santoshbhai Sondabhai v. State of Gujarat, 2023 SCC OnLine SC 1092 that bail cannot be granted to a person having criminal antecedents. It was observed:
"12. For the reasons noted above, we are of the firm opinion that respondent No. 2 was not entitled to any relief in the instant case. Respondent No. 2 had remained in custody for barely six months (23rd September 2021 to 18th February 2022) before he was released on bail in respect of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime. Accordingly, the impugned order dated ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 30 - REPORTABLE 18th February 2022, is quashed and set aside and respondent No. 2 is directed to surrender forthwith before the trial Court.
26. Therefore, it is apparent from the judgment of this Court and the judgments of the Hon'ble Supreme Court that criminal antecedents of .
the petitioner are important factors that cannot be ignored while deciding the bail petition.
29. Keeping in view the criminal antecedents and the fact that the petitioner was found involved in the commission of a similar offence earlier, the petitioner does not deserve the concession of bail."
10(vi). Needless to say, that the Hon'ble Supreme Court has mandated in State of West Bengal versus Rakesh Singh alias Rakesh Kumar Singh, 2022 SCC OnLine SC 828, that bail can be allowed, when, though an accused was involved in 53 criminal cases but no accusation and no criminal history existed in narcotics under the NDPS Act in the following terms:-
"31. As regards the criminal antecedents of the respondent, a list of criminal cases against him has also been placed before us while pointing out that 51 cases are pending against him and in two cases, he has been convicted wherein the allegations were of criminal intimidation and wrongful restraint of police personnel.
57. Although, the past history of the respondent and even his conduct in relation to the processes concerning the present case give ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 31 - REPORTABLE rise to a few questions but, the strong countervailing factor in the present case is the prima facie indication that he is being sought to be framed by concoctions and baseless stories. Another factor noticeable that the respondent has not been involved in .
any NDPS Act case or any akin offence in the past. Interestingly, it is noticed from the material placed on record that nothing of any contraband article has been recovered from the respondent or from any place under his exclusive control. This factor further adds on to the doubt as to whether the respondent had at all been indulgent in narcotics or any contraband? That being the position, the view as taken, by the High Court cannot be said to be an altogether unacceptable or impossible view of the matter. Moreover, it cannot be said that the respondent was consciously seeking to abscond on 23.02.2021 merely because he was found in the night at Purba Bardhaman and not at Kolkata. In any case, the aspect relating to tendency to flee has been duly taken care of with the conditions as imposed by the High Court. The other submissions with reference to the decision in the case of Prasanta Kumar Sarkar (supra) hardly make out a case for interference particularly looking to the nature of evidence sought to be adduced by the prosecution against the respondent. In this regard, we would hasten to observe that apart from the stringent conditions already imposed by the High Court, it is always open for the prosecution to seek imposition of any further condition or even to seek cancellation of the bail granted to the respondent, in case cancellation of the bail granted to the respondent, in case of any fault on his part in due adherence to the conditions already imposed."
In the above backdrop, the judgment in case of Rakesh Singh [supra], disentitles the claim of the bail ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 32 - REPORTABLE petitioner who was involved in seven criminal cases, out of which four cases are under NDPS Act and moreover, when, the bail petitioner has been convicted in three .
NDPS cases and one NDPS case is pending trial.
Taking into account, the entirety of facts and circumstances and the material on record including the role attributable to the bail petitioner, this Court is of the considered view, that once the bail petitioner had been resorting to such illegal activities for the last one and half year and had also resorted to the use and sale and purchase of contraband [Heroin/Chitta] to different persons including Rajneesh Verma, in this case, then, the dangerousity and killing instinct of contraband in this case refrains this Court from enlarging the bail petitioner, on bail, at this stage, in larger societal interest, when, the petitioner is involved in seven criminal cases, out of which four criminal cases relate to NDPS Act, and in three NDPS cases he stands convicted also. Further, the grant of bail to co-accused on ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 33 - REPORTABLE altogether different fact similar cannot confer right on the petitioner and parity cannot be extended to the petitioner. In these circumstances, this Court refrains .
from enlarging the bail petitioner on bail, in larger societal interest, at this stage, as the release on bail shall tend to giving rise to a possibility of the bail petitioner indulging in similar offence again under the NDPS or otherwise.
MERE COMPLETION OF INVESTIGATION NOT A GROUND FOR BAIL:
12. Mr. Ankit Dhiman, Learned Counsel states that since the investigation is complete and no custodial interrogation is required by the State Authorities coupled with the fact that the bail petitioner has given an undertaking for participating in the investigation and the consequential trial, therefore bail must be granted, is in considered view of this Court cannot be basis for enlarging the bail petitioner on bail in view of the gravity of offence when there is material pointing towards ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 34 - REPORTABLE grave and severe prima facie accusation against the bail petitioner.
Moreover, the Hon'ble Apex Court in SLP (Crl) .
No. 10810 of 2023 titled as The State of Jharkhand versus Dhananjay Gupta @ Dhananjay Prasad Gupta decided on 07.11.2023 has categorically held that merely because the investigation is complete or the undertaking to participate in the trial has been furnished cannot in itself be a ground for releasing the bail petitioner in case of offences of serious nature, which reads as under:
4. The reasons that persuaded the High Court for granting bail to the respondent have been stated in paragraph-4 of the impugned order reads, thus:-
"4. Innocence has been claimed by the learned counsel for the applicant and undertaking has been given for participation in the trial. Further, it has been submitted that no overt act has been alleged against this applicant.
Investigation is complete. On the above basis, prayer for bail has been made."
5. When the offences alleged, inter alia, includes one under Section 307, IPC and the accused concerned is so arraigned with the aid of Section 149, IPC, such submissions, reflected in paragraph or the mere factum of completion of investigation by itself, cannot be the reason(s) for grant of bail without due consideration of the relevant aspects. At any rate, mere claim of innocence or undertaking ::: Downloaded on - 30/07/2024 22:01:42 :::CIS 2024:HHC:6025 - 35 - REPORTABLE to participate in the trial or contention of absence of specific allegation of any overt act cannot, in such circumstances, be assigned as reasons for grant of bail in a case of serious nature. We are of the considered view that in such circumstances, impugned order .
deserves to be set aside and the matter is liable to be remanded to the High Court for fresh consideration in accordance with law. In that view of the matter, the impugned order dated 12.01.2023 passed by the High Court in B.A. No.12508 of 2022 stands set aside and the matter is remanded back to the High Court for fresh consideration in accordance with law. The application which culminated in the impugned order is restored into the file in its original number to facilitate such consideration. We make it clear that we have not made any observation touching the merits."
13. In view of the above discussion, the instant petition for bail is without merit and the same is accordingly dismissed, at this stage.
14. Any observations made herein-above, shall not be construed in any manner as an expression of opinion on the merits of the case, [for or against either of the parties herein] and these observations are made only, for the disposal of the instant bail application.
::: Downloaded on - 30/07/2024 22:01:42 :::CIS2024:HHC:6025 - 36 - REPORTABLE In aforesaid terms, the instant bail petition and all pending applications, if any, shall stand disposed of.
.
(Ranjan Sharma)
Judge
July 26, 2024
(Shivender)
r to
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