Himachal Pradesh High Court
Kurum Dutt vs State Of H.P on 21 April, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No.886 of 2023 Decided on: 21st April, 2023 .
_________________________________________________________________ Kurum Dutt ....Petitioner Versus State of H.P. ...Respondent _________________________________________________________________ Coram Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge 1 Whether approved for reporting?
For the petitioner:
r to _________________________________________________________________ Mr. B. L. Soni, Advocate.
For the respondent: Mr. Y.P.S.Dhaulta and Mr. Navlesh Verma, Additional Advocates General with Ms. Seema Sharma, Deputy Advocate General.
Jyotsna Rewal Dua, Judge The petitioner is one of the co-accused persons in FIR No. 34 of 2022 dated 27.04.2022, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (the Act in short), at Police Station Sainj, District Kullu, H.P. He was arrested in the FIR on 06.07.2023. He has prayed for his enlargement on regular 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 25/04/2023 20:33:55 :::CIS -2-bail in this petition.
2. Respondent has filed the status report and produced the record. The gist of the prosecution case is as .
under: -
2(i) A police party was on routine patrol duty on 27.04.2022. At around 12:05 p.m., a secret information was received by it that two persons, namely, Chet Ram and Yashpal would be coming on foot from their village through a hilly track to 'Dhaman Pul', District Kullu, H.P. That they were carrying huge quantity of cannabis and intended to sell the same near 'Dhaman Pul' Kullu.
2(ii) The information was reliable, hence, provisions of Section 42 of the Act were complied with. The raiding team was constituted. The team proceeded towards the location described in the information. Two individuals standing there (Punit Sharma and Jhabe Ram) were associated in the raid as independent witnesses. At around 2:00p.m., the team noticed two persons coming on foot from 'Dhaman Pul'. One of them was carrying a gunny bag (boru) over his shoulder. These two persons were apprehended by the police officials. They appeared quite baffled. The person carrying the gunny bag ::: Downloaded on - 25/04/2023 20:33:55 :::CIS -3- disclosed his name as Chet Ram and other gave his name as Yashpal. Search of the bag was carried out in accordance with law. 6 Kg. 200 grams of cannabis was recovered from .
the bag. Hence, FIR was registered on 27.04.2022 under Sections 20 and 29 of the Act. The accused persons namely Chet Ram and Yashpal were arrested.
2(iii) Investigation was carried out from the accused persons. During investigation, Chet Ram statedly disclosed that out of the total 6 Kg. 200 grams of recovered cannabis, 3Kg was supplied by Kurum Dutt (bail petitioner).
2(iv) The respondent tried to locate and investigate Kurum Dutt (petitioner). But, he absconded. Respondent's all out effects to trace the petitioner remained unfruitful. He could eventually be arrested after dismissal of his anticipatory bail petition on 06.07.2022.
2(v) Respondent obtained call detail record of the mobile phones used by Chet Ram and the petitioner. The record showed that the two had talked to each other 15 times from 16.04.2022 to 27.04.2022 (the date of registration of FIR). Six calls were exchanged between the two on 27.04.2022.
::: Downloaded on - 25/04/2023 20:33:55 :::CIS -4-2(vi) During investigation carried out from Kurum Dutt, he is said to have admitted handing over 900 grams of cannabis to Chet Ram for its onward sale @ Rs.4000/- per .
100 grams. The money was to be paid to him after the sale of the contraband. He had supplied this cannabis to Chet Ram in his (Chet Ram's) home. He was aware that Chet Ram and Yashpal would carry it alongwith other quantity of cannabis for sale near 'Dhaman Pul'. He had accompanied Chet Ram who was carrying the contraband upto the place 'Rishi Markandey'. From there, Chet Ram and Yashpal proceeded towards 'Dhaman Pul' and he (petitioner) went in different direction. Chet Ram, during investigation had attributed supply of 3 Kg. of cannabis to the petitioner for its onward sale.
2(vii) Petitioner got recorded his statement on 07.07.2022 under Section 27 of the Indian Evidence Act identifying his orchard as the area from where he had obtained the cannabis.
3. Submissions 3(i) Learned counsel for the petitioner submitted that the confessional statement alleged to have been made by the ::: Downloaded on - 25/04/2023 20:33:55 :::CIS -5- petitioner and co-accused Chet Ram cannot be acted upon in view of the law laid down in (2021) 4 SCC1 (Tofan Singh Vs. State of Tamil Nadu). It was also submitted that the call .
detail record between the petitioner and Chet Ram is also of no help to the prosecution in view of the law laid down in 2022 (2) Scale 14 (State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr and connected matters). Reliance was also placed upon a judgment passed by a Coordinate Bench of this Court in 2022 STPL 9811 HP, (Bittu Singh Vs. State of Himachal Pradesh). On the basis of these submissions, prayer was made for enlarging the petitioner on regular bail.
3(ii) Learned Additional Advocate General opposed the grant of bail. It was contended that the petitioner was the supplier of cannabis. He had supplied the contraband to co-
accused Chet Ram, for selling it to some other persons in Kullu, H.P. The respondent has enough evidence that the petitioner had supplied commercial quantity of contraband to co-accused persons Chet Ram and Yashpal. The contraband was eventually recovered by the investigating agency from them. The petitioner was party to the criminal conspiracy ::: Downloaded on - 25/04/2023 20:33:55 :::CIS -6- between him and the other two accused persons, in furtherance of which, the other two accused persons were carrying 6 Kg. 200 grams of cannabis for sale. Co-accused .
Chet Ram had already been convicted in a case No.7 of 2004, registered against him under Section 20 of the Act, vide judgment dated 11.05.2006. According to the learned Additional Advocate General, instant case is now fixed for prosecution evidence on 19-20.07.2023 for recording the statement of prosecution witnesses No. 9 to 14. The prayer was accordingly made for dismissing the bail petition.
4. I have heard learned counsel on both sides, also considered the status report and the record produced by the respondent.
5. I am of the considered view that at this stage, the petitioner does not deserve to be enlarged on bail for the following reasons: -
5(i) The case pertains to the recovery of 6.200 Kg of cannabis. The recovery falls in commercial quantity notified under the Act, hence, provisions of Section 37 of the Act are attracted. Section 37 of the Act reads as under :-
"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-::: Downloaded on - 25/04/2023 20:33:55 :::CIS -7-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and .
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the aforesaid section: -
(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail.
5(ii)(a) With regard to Section 37 of the NDPS Act, Hon'ble Apex Court in AIR 2020 SC 721, State of Kerala Etc. Versus Rajesh Etc., inter-alia held that exercise of power to grant bail under Section 37 of the Act is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the ::: Downloaded on - 25/04/2023 20:33:55 :::CIS -8- enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied.
The first condition is that the prosecution must be given an .
opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates. In reference to meaning of the words 'reasonable grounds', following was observed in para 21 of the judgment:-
"21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act indeed uncalled for."
5(ii)(b) (2021) 10 SCC 100, titled Union of India through Narcotics Control Bureau Versus Md. Nawaz Khan, was a case where search of the car had led to recovery of commercial quantity of the contraband from its bonnet.
One of the plea raised was that the contraband was found concealed in the vehicle in which the accused was travelling, therefore, it cannot be said that the accused was in conscious ::: Downloaded on - 25/04/2023 20:33:55 :::CIS -9- possession of the contraband as he was neither the driver nor the owner of the vehicle. After noticing the provisions of Section 37 of the NDPS Act, placing limitations on the grant .
of bail for offences punishable under Sections 19, 24, 27-A of the NDPS Act and also for offences involving a commercial quantity, the Hon'ble Apex Court took into consideration in the interpretation given in Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, that the expression "reasonable ground to believe" means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. It was then held as under:-
"23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug- trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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What amounts to conscious possession was deliberated in terms of judgments rendered in (2003)7 SCC 465 (Madan Lal and others Vs. State of Himachal .
Pradesh), (2010)9 SCC 608 (Dharam Pal Singh Vs. State of Punjab) and (2015) 6 SCC 222 (Mohan Lal Vs. State of Rajasthan). That expression 'possession' is a polymorphous term, which assumes different colours in different contexts.
Knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case...... The term 'possession' would mean physical possession with animus;
custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to existence of the contraband and the intention based on this knowledge. The principle of law laid down in Tofan Singh (supra) that statement under Section 67 of the Act as inadmissible in evidence was kept in view. The bail granted by the High Court to the accused was dismissed.
Following circumstances were evaluated by the Hon'ble Apex Court in (2021) 10 SCC 100 (Union of India through Narcotics Control Bureau Vs. Md. Nawaz Khan) : -
34. The following circumstances are crucial to assessing whether the High Court has correctly evaluated the ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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application for bail, having regard to the provisions of Section 37:
34.1 The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused;
.
34.2 The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him;
34.3 The quantity of contraband found in the vehicle is of a commercial quantity; and 34.4 The contraband was concealed in the vehicle in which the respondent was travelling with the co-accused."
Due weightage was given to the CDR analysis of mobile numbers used by co-accused persons.
5(ii)(c) In SLP (Crl.) 242 of 2022, decided on 10.01.2022. [State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr.], relied upon by the learned counsel for the petitioner it was held as under:-
"10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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aforesaid reason, this Court is not inclined to interfere in the orders dated 16 th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary .
No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."
The above judgment has not held that CDR analysis of mobile numbers used by accused persons is to be discarded as a rule at the stage of considering bail applications.
5(ii)(d) SLP (Crl.) No. 915 of 2023 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial. Hon'ble Court inter-
alia reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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382 (Vijay Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like "section 43-D(5) of UAPA cannot fetter a .
constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd Muslim's case (supra), it was held as under with reference to expression "not guilty of such offence"
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counter-affidavit ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 .
and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co- operating with the investigation, not fleeing from justice:
even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under .
Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty.
Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
5(iii) The main plank of contention advanced by the learned counsel for the petitioner is that contraband was not recovered from the petitioner. It was recovered from co-
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accused Chet Ram and Yashpal. The confessional statements of Chet Ram and petitioner are inadmissible. The exchange of calls between the petitioner and co-accused Chet Ram is not .
to be considered at this stage in view of Pallulabid Ahmad's case (supra).
5(iv) Each case for grant of bail has to be considered on the basis of its own facts and merits. In the instant case, the allegations of prosecution are that the contraband, weighing 6.200 Kg. was recovered from the possession of Chet Ram and Yashpal. However, during investigation, Chet Ram disclosed that out of the recovered contraband, 3 Kg was provided by accused Kurum Dutt (petitioner). During investigation, Kurum Dutt statedly disclosed having made available 900 grams of cannabis to Chet Ram. Linked with this is another aspect of 15 calls having been exchanged from 16.04.2022 to 27.04.2022 between the petitioner and accused Chet Ram out of which, six calls were made on 27.04.2023 itself (date of incident). The record produced by the respondent, prima-facie, describe mode and manner allegedly adopted by the petitioner in providing cannabis to co-accused persons, his being part of conspiracy in selling off ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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the contraband, his knowledge of the entire act, his accompanying the co-accused up to a particular destination.
Subsequent to the registration of the FIR on 27.04.2022, .
Kurum Dutt (petitioner) had absconded and surfaced only after the dismissal of his anticipatory bail petition on 06.07.2022. Kurum Dutt also got recorded his statement under Section 27 of the Evidence Act and identified the place from where he procured the cannabis. Kurum Dutt, according to the prosecution, had supplied cannabis to co-
accused Chet Ram (3 Kg as per the statement given by Chet Ram and 900 grams as per the version of Kurum Dutt) for its onward sale in District Kullu.
The petitioner has been accused of being a supplier of contraband. Apart from the confessional statements made by co-accused Chet Ram and by the petitioner himself, the respondent has also procured CDR analysis of mobile numbers used by the petitioner in making 16 calls to co-accused Chet Ram during the period in question. No explanation for the petitioner's need to remain in contact with co-accused Chet Ram was offered by learned counsel. These calls cannot be ignored altogether at this ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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stage as is being contended by learned counsel for the petitioner. Co-accused Chet Ram and petitioner separately got recoded their statements under Section 27 of the Indian .
Evidence Act. Petitioner identified his orchard where he statedly procured the cannabis. The conduct of the petitioner also speaks against him. He had absconded immediately, on registration of FIR on 27.04.2022 and could be arrested only on 06.07.2022. In view of the investigation carried out by the respondent, prima-facie, it cannot be said at this moment that there are reasonable grounds to believe about petitioner being not guilty of the offence. Petitioner is in custody for past about 9 months for the offence involving recovery of 6 Kg. 200 grams (commercial quantity) of cannabis. Neither it is a case of delayed trial nor such ground has been canvassed for the petitioner. Trial is set to start from 19/20.07.2023 when five prosecution witnesses are scheduled for examination. Petitioner's influencing prosecution witnesses also cannot be ruled out at this stage.
Taking into consideration all above factors, the facts and circumstances of the case in their entirety and the public interest of protection against sale and use of illegal ::: Downloaded on - 25/04/2023 20:33:55 :::CIS
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drugs outweighing concerns of individual liberty, in my view, present is not the stage to release the petitioner on regular bail. This petition is dismissed for all the above reasons.
.
The pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua Judge April 21, 2023 R.Atal ::: Downloaded on - 25/04/2023 20:33:55 :::CIS