Himachal Pradesh High Court
Soni Kumar vs State Of H.P on 13 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No.147 of 2023 Decided on: 13th March, 2023 _________________________________________________________________ .
Soni Kumar ....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 Mr. Vijender Katoch, Advocate.
For the respondent: Mr. Y.P.S.Dhaulta & Mr. Navlesh Verma, Additional Advocates General with Ms. Seema Sharma and Mr. Sumit Sharma, Deputy Advocate General.
HC Kulbhushan, No.41, IO, PP Thakurdwara, Police Station Indora, present with record.
Jyotsna Rewal Dua, Judge The petitioner is co-accused in FIR No. 48 of 2021, dated 09.03.2021, registered under Sections 21 and 22 of Narcotic Drugs and Psychotropic Substances Act (the Act in short) at Police Station Indora, District Kangra, H.P. Co-
accused in this case Raman Kumar was arrested on 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/03/2023 20:50:03 :::CIS -2-09.03.2021, whereas the petitioner surrendered himself before the Court of Judicial Magistrate First Class Indora, Kangra on 30.06.2021. Ever since, he is behind the bars and .
by means of the present bail petition has prayed for releasing him on regular bail.
2. Respondent has filed the status report and produced the record.
3. The prosecution case is that on 08.03.2021, a police party was on patrol duty within the area of its jurisdiction. At around 09:15 p.m., a motorcycle coming from Malkana side was stopped by it for checking. Apart from its driver, it also had a pillion rider. These two persons disclosed their names as Kuldeep Singh and Madhu Ram. Around the same time, a four wheeler came from Thakurdwara side. It had two occupants. The vehicle was signaled to stop by the police personnel. Immediately thereafter, the person occupying the seat adjoining to the driver's seat, opened the vehicle door and jumped outside. He fled away from the spot.
On seeing the police party, the driver of the vehicle visibly appeared perplexed. Kuldeep Singh and Madhu Ram, who had been stopped by the police, identified the person who had ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -3- fled from the spot as Soni Kumar (present bail petitioner).
Kuldeep Singh and Madhu Ram were associated as independent witnesses on the spot. In their presence, further .
proceedings were carried out. The driver of the vehicle disclosed his name as Raman Kumar and that of his accomplice, who had fled away from the spot, as his brother-
in-law-Soni (present bail petitioner). The vehicle was inspected in accordance with law. After observing the codal formalities, r 500 Ridley capsules and an amount of Rs.3,39,800/- in the form of currency notes of different denominations, was recovered from the dashboard of the vehicle. Heroine weighing 10 grams was also recovered. The recovery led to registration of FIR and arrest of co-accused Raman Kumar. The police report under Section 173 (2) Cr.P.C against the co-accused Raman Kumar was presented on 06.05.2021. The present petitioner surrendered himself before the Court of learned Judicial Magistrate First Class Indora on 30.06.2021. He was arrested on that day by the police. The police report against the petitioner was presented on 18.08.2021.
4. Learned counsel for the petitioner submitted that ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -4- the respondent has already examined the independent witnesses of recovery. These witnesses have not supported the case of the prosecution insofar as the petitioner is .
concerned. It was further submitted that one of the police officials, namely Vikram Kumar, was part of the raiding party at the relevant time. He has also been examined as PW-4. In his cross-examination, he has specifically stated that no Test Identification Parade was ever conducted to establish the identity of the bail petitioner. In such a situation, presence of bail petitioner at the spot has not been established by the respondent. The bail petitioner is innocent person. He has been falsely implicated in the case merely because of his relations with the co-accused Raman Kumar. Accordingly, prayer was made for allowing the petition. Learned counsel further submitted that the petitioner will abide by all the terms and conditions which may be imposed upon him in the event of his enlargement on bail.
While opposing the bail petition, learned Deputy Advocate General submitted that the FIR pertains to recovery of commercial quantity of psychotropic substances and intermediate quantity of narcotics. The trial of the case is yet ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -5- going on. The prosecution has to examine fourteen witness in all. Seven witnesses have already been examined. The matter is now fixed for recording the statements of three prosecution .
witnesses on 10.04.2023 and two witnesses are scheduled to be examined on 11.04.2023. Learned Deputy Advocate General further submitted that the co-accused Raman Kumar, during investigation, had disclosed the identity of his accomplice (occupant of the seat adjoining to the driver seat of the vehicle in question) as Soni Kumar (present bail petitioner). The petitioner had been duly linked with the recovery of the contraband from the vehicle. the petitioner was one of the occupants of the vehicle in question, had fled from the spot. Prayer was accordingly made for dismissal of the bail petition.
5. The instant case pertains to recovery of commercial quantity of psychotropic substance and intermediate quantity of narcotics, hence, Section 37 of the NDPS Act gets attracted, which 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)-
(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 ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -6- 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(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., held as under vide paras 19 and 20:-
"19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:-"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -7- punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led .
to drug addiction among a sizeable 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, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are r satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
20. The scheme of Section 37 reveals that the exercise of power to grant bail 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 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 ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -8- 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."
(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 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 Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, regarding the "reasonable ground to believe" that the person is not guilty of the offence, to observe as under:-
"22. The standard prescribed for the grant of bail is "reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of this Court in ::: Downloaded on - 13/03/2023 20:50:03 :::CIS -9- Shiv Shanker Kesari, held that: (SCC pp.801-02, paras 7-8 & 10-11) "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression 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.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
"7. ... Stroud's Judicial Dictionary, 4th Edn., p.2258 states that it would be unreasonable to expect an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."
(See MCD v. Jagan Nath Ashok Kumar, SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.]
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd.)
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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acquittal and recording a finding of not guilty." (emphasis supplied)
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."
What amounts to conscious possession was deliberated as under:-
"26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, this Court also observed that the term "possession" could 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 the existence of the contraband and the intention based on this knowledge.
27. We have referred to the above precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court (sic) where evidence will be adduced.
28. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non- application of mind by the High Court."
.
With regard to the statement made under Section 67 of the NDPS Act, following was observed in para 30:-
"30. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh, a three-judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage."
5(b) Having heard learned counsel on both sides, I am of the considered view that the petitioner, at this stage, has made out a case for enlargement on bail. This is prima-facie for the following reasons: -
5(b)(i) According to the prosecution, Kuldeep Singh and Madhu Ram, who were local residents, had been associated as independent witnesses. That the person, who had fled from the spot after alighting from the vehicle, was identified as Soni Kumar (present bail petitioner) by these two independent witnesses. The statements of these two independent witnesses have been recorded during trial.::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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Madhu Ram, while appearing as PW-6 though stated that the police had weighed the capsules in his presence and in presence of Kuldeep Singh, but denied that there were two .
persons in the vehicle in question. He also denied that the person, who had run away from the spot, was identified by him or by Kuldeep Singh as Soni (present bail petitioner).
The second independent witness Kuldeep Singh was examined as PW-7. During his examination-in-chief, he has stated that:- "one boy was sitting in the Innova car, but he was not known to him." During cross-examination, he deposed that:- "Self stated that the Innova car was already stopped on the spot. It is incorrect that two persons were travelling in the Innova car. It is incorrect that one person was sitting on the front seat got down from the Innova car and ran away and the driver kept on sitting in the car. It is incorrect that person who had run away from the spot was identified by us as Soni son of Dharam pal resident of Malkana Maira as he was already known to us. The witnesses identified accused Raman Kumar in the court to be the same person who was sitting in the Innova car."
Prima-facie, it appears that Madhu Ram (PW-6) ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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and Kuldeep Singh (PW-7) have denied identifying the petitioner as the person, who was occupying the seat next to the driver in the vehicle in question or that he had run away .
from the spot at the time of search of the vehicle.
5(b)(ii) One of the police officials, who was part of the raiding party, C.Vikram Kumar, stepped into the witness-box as PW-4. During cross-examination, he admitted it to be correct that: - "It is correct that other occupant of the Innova car was not known to any members of the police party. We had not seen the said person as it was dark at the relevant time.
No rest identification parade of accused Soni Kumar was got conducted."
It is an admitted position that the petitioner was not arrested on the spot. Co-accused Raman Kumar i.e. driver of the vehicle in question was arrested on 09.03.2021, whereas, the petitioner had surrendered himself on 30.06.2021. He has completed one year and ten months in the custody by now.
5(b)(iii) The statements of the prosecution witnesses have been examined only for the purpose of adjudicating instant bail petition. Though the petitioner is facing ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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allegations of possessing commercial quantity of contraband, however, at this stage, there are reasonable grounds to believe that he did not commit the offence alleged against .
him in the FIR. Prima-facie it appears that his presence at the spot is not confirmed. His identity is not established as yet, his link with the alleged recovery is not established. Though, the prosecution is yet to examine five more witnesses, however, in the facts of the case, the petitioner has made out a case for his enlargement on bail at this stage. The status report does not indicate any criminal history of the accused, hence, it can be assumed that the petitioner will not indulge in any crime while on bail. To ensure this, stringent conditions can be imposed. The petitioner is local resident.
There is no apprehension of his fleeing from justice. Petitioner by now has spent about a year and ten months in custody. In the given facts and circumstances, his release on bail is warranted at this stage more so when trial is nowhere near conclusion. Accordingly, the present petition is allowed.
Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) with one ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions: -
.
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is ::: Downloaded on - 13/03/2023 20:50:03 :::CIS
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made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.
.
Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge March 13, 2023 R.Atal ::: Downloaded on - 13/03/2023 20:50:03 :::CIS