Himachal Pradesh High Court
Sandeep vs State Of Himachal Pradesh on 11 January, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P (M) No. 1608 of 2018 Reserved on: 28.12.2018 .
Date of decision: 11.01.2019
Sandeep ...Petitioner
Versus
State of Himachal Pradesh. ...Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1Yes.
For the Petitioner:
r to
Mr. Vipin Pandit and Mr.Dinesh Sharma,
Advocates.
For the Respondent: Mr.Shiv Pal
Manhans, Additional Advocate General, with Mr.R.P. Singh and Mr.Raju Ram Rahi, Deputy Advocate Generals.
ASI Yadav Chand, Police Station, Parwanoo, present in person with record.
Vivek Singh Thakur, Judge Present petition has been filed seeking regular bail under Section 439 Cr.P.C. in case FIR No. 27/16, dated 24.3.2016 under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as NDPS Act in short) registered at Police Station Parwanoo, District H.P.. The petitioner is in custody since 24.3.2016 for alleged recovery of 2.689 kilograms charas from his 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 conscious possession in Room No. 101, in Hotel Paradise, Sector-3, Parwanoo at 11:43 A.M. on 24.3.2016.
2. Prosecution case in brief is that on 24.3.2016 at about 11:30 .
A.M. Inspector Minakshi, SHO, Police Station Parwanoo had received information on her mobile phone that a person, namely, Sandeep Kumar involved in business of narcotic drugs, is staying in room No. 101 of Hotel Paradise, Sector-3, Parwanoo. Informant had also given identity of the person along with further details of his wearing and tattoos on his hand.
The information was reliable and therefore, reasons to believe were reduced into writing under Section 42(2) of NDPS Act. As there was possibility of disappearance of the accused as well the contraband during the process of obtaining search warrant on account of distance from the Court, therefore, information was sent to SDPO Parwanoo and in the meanwhile, SHO Meenakshi Shah along with Police party raided the hotel Paradise and before searching room No.101, she had associated Ankit Sharma, Hotel Service Boy and Arvind Jetily owner of the hotel by joining them in the raiding party.
3. On the basis of information, room No 101 was knocked and on opening of the door, four persons, consuming liquor were found there and the person having appearance and wearing in consonance with the information received, was also there, who on inquiry had disclosed his name and address as familiar to identity of petitioner. Other three persons, namely, Ravinder Kumar, Ajay Kumar and Ved Parkash were also present ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 there. Personal search of these three persons were conducted after complying with Section 50 of the NDPS Act, but nothing incriminatory was found from their person.
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4. Petitioner Sandeep Kumar was sitting on double bed and one yellow-pink bag with logo AG Basmoti rice having zip to close it was also with him. On searching this bag, one small pink purse bearing logo of Bansal Jeweler was found in it, but no illicit article was found therein.
However, in another bag, black sticks of some material were found, which after smelling, were identified as charas. The said contraband was weighed in the electronic balance brought with investigating kit and it was found to be 2.689 kilograms. The same was seized vide memo of seizure.
Other investigating formalities including filling up of NCB forms in triplicate and sealing the recovered contraband were completed and thereafter accused persons were arrested. Since then they are in custody.
5. Plea for granting bail to the petitioner has been canvassed on the ground that even if prosecution story is believed in toto, then also contraband alleged to have been recovered from the petitioner, at the best, applying ratio of law laid down by the Apex Court in E Michalraj Vs Intelligence Officer, Narcotic Central Bureau, 2008 (5) SCC 160, is a small quantity, as according to the chemical analysis report of State Forensic Science Laboratory, quantity of purified resin in the alleged recovered charas has been found to be 21.31% w/w, meaning thereby that ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 alleged recovered charas is about 574 grams and therefore, rigors of Section 37 are not applicable in the present case.
6. Learned counsel for the petitioner has also relied upon the .
judgment rendered by co-ordinate Bench of this High Court in Cr.M.P.(M) No. 1505 of 2018 titled Sewak Ram Vs. State of H.P. decided on 22.11.2018, Cr.M.P. (M) No. 1267 of 2018 titled Surender Vs. State of H.P. decided on 5.11.2018, Cr.M.P. (M) No. 667 of 2018 titled as Suresh Kumar @ Shivam Sharma Vs. State of H.P. decided on 20.6.2018, Cr.M.P.(M) No.1765 of 2018 titled as Nageshwar Dipta Vs. State of H.P. decided on 28.12.2018, Cr.M.P.(M) No.1625 of 2018 titled as Narayan Singh Vs. State of H.P. decided on 20.12.2018, Cr.M.P.(M) Nos.1777 and 1778 of 2018, titled as Bresati Devi Vs. State of H.P. and Pawan Kumar Vs. State of H.P. decided on 27.12.2018, Cr.M.P.(M) No. 1328 of 2018 titled as Jaswant Singh Vs. State of H.P. decided on 25.10.2018, wherein after relying upon E. Michalraj case (supra), petitioners therein have been enlarged on bail for alleged commission of similar offence.
7. Relying upon a decision dated 21.8.2018 passed in CRM-M No. 35080 of 2018, titled as Rajvir Singh @ Raju Versus State of Punjab, rendered by High Court of Punjab and Haryana, wherein applying the ratio of law laid down by the Apex Court in Mohan Lal Vs. State of Punjab, AIR 2018 SC 2853 and Arif Khan @ Agha Khan Vs. State of Uttrakhand, 2018 (2) RCR Criminal 931, it is canvassed that in present case, complainant as well as Investigating Officer is one and the same ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 person, which has vitiated the trial and there is also non compliance of Section 50 of the NDPS Act and thus, in view of ratio of Mohan Lal's case and Arif Khan's case, petitioner is entitled for bail.
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8. Learned counsel for the petitioner has also pointed out certain discrepancies in the evidence, relied upon the prosecution for framing the petitioner for commission of alleged offence, which are (a) as per recovery memo prepared during search, petitioner Sandeep Kumar was found in possession of a yellow-pink bag bearing logo A.G. Basmati rice having zip, wherefrom the contraband was allegedly recovered and the same bag was seized and was sent for chemical examination in the same bag, however, in the FSL report in description, bag containing charas has been mentioned as yellow-pink and multicolored zip carry bag, which is different from the bag mentioned in the recovery memo; (b) in rapat No. 53 dated 24.3.2016, recorded at 8:47 P.M., MHC has stated that case property along with sample seal "H" was deposited in the malkhana, whereas, as per recovery memo contraband was sealed with seal "V"; (c) as per rapat No. 53, the case property was deposited in Malkhana at 8:47 P.M., whereas in NCB form, date, time and place of seizing is mentioned as 24.3.2016 at 2:50 P.M. in Paradise Hotel, Sector-3 Parwanoo and there is a long gap of 6 hours between the seizure and deposit of the contraband in Malkhana, which renders the prosecution case doubtful; (d) as per logbook of Police vehicle, used during the investigation by Inspector Meenakshi, on 24.3.2016, the said vehicle was used for investigation in the case FIR No. ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 27/16 (present case) from 11:43 A.M. to 6:28 P.M. and vehicle had reached back in Police Station at 6:28 PM along with Police party, the gap between 6:28 PM and 8:47 PM, i.e. after arrival till deposit of case property in .
Malkhana is also unexplained; (e) in rapat No. 21, it is mentioned that a person namely Sandeep was staying in Hotel Paradise in Room No. 101, however, in extract of hotel register at entry No. 833, one Ashu from Parwanoo has been shown to be occupant of room No. 101 since 20.3.2016 to 21.3.2016, whereas against entry No. 829 pertaining to Sandeep, there is cutting and rewriting by changing room number from 105 to 101 and date from 20.3.2016 to 21.3.2016. It is contended that all these discrepancies establish that the documents have been fabricated for roping the petitioner in false case.
9. It is also canvassed that in view of reference made to larger bench in Hira Singh and another vs. Union of India and another (2017) 8 SCC 162, petitioner is entitled for bail.
10. Lastly relying upon judgment of coordinate Bench in Madan Lal Vs. State of H.P. Latest HLJ, 2018 HP (98), it has been canvassed that object of bail is to secure appearance of the accused person at the trial by reasonable amount of bail and the object of bail is neither preventive nor punitive and it is further submitted that the petitioner is permanent resident of Himachal Pradesh, there is no possibility of jumping over the bail by him and thus in the facts and circumstances canvassed herein above, he is entitled for bail.
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 201811. Mr.R.P. Singh, learned Deputy Advocate General has opposed the release of petitioner on bail at this stage on the ground that quantity of the contraband recovered from the petitioner is a huge quantity .
and Section 37 of NDPS Act, dis-entitle the petitioner from availing the bail and huge quantity recovered from the petitioner establishes that he was indulging in supplying of charas, causing irreparable loss to the society at large, particularly young generation and that the ratio of E Michalraj case is not applicable in present case in view of observations of the Apex Court in Harjeet Singh vs. State of Punjab reported in 2011(4) SCC 441 case, as contraband involved in E Michalraj's case was opium derivative, whereas in present case recovered contraband is charas and the issue with respect to the charas stands finally determined by the Full Bench of this Court in State Vs. Mahboob Khan reported in 2013 (3) HLR (FB) 1834, which has not been overruled or disturbed by any subsequent judgment of the Apex Court and further that trial is at final stage and all witnesses except two, stand examined and the case is fixed for recording of remaining evidence.
12. It is settled exposition of law that no straight jacket formula can be devised for grant or refusal of bail and each case is to be decided on the basis of its peculiar facts and circumstances, as all circumstances and situations of future cannot be quantified and qualified and therefore, each and every case is to be decided on its own merit.
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 201813. Some of the principles evolved in various pronouncements of the apex Court are as under:
1. Grant of bail is general rule and putting a .
person in jail or in a prison or in correction home during trial is an exception and presumption of innocence, i.e. person is believed to be innocent until found guilty is fundamental postulate of criminal jurisprudence. But, these principles are not applicable in cases where there is reverse onus and/or statutory presumption with regard to commission of offence.
Such cases are to be dealt with differently keeping in view statutory presumption and reverse onus provided under the relevant statute. (See Dataram Singh versus State of Uttar Pradesh and another, (2018) 3 SCC 22, para 1)
2. While making a general statement of law that the accused is innocent, till proved guilty, the statutory provisions of relevant Act, like Section 29 of the POCSO Act, have to be taken into consideration which provides for presumption as to commission of any offence under Sections 3, 5, 7 and 9 of the Act. (See State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178, para 22)
3. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The Court has only to opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police and comment upon the same. Such assessment of evidence and premature comments are likely ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 to deprive the accused of a fair trial. (See Kanwar Singh Meena versus State of Rajasthan and another, (2012) 12 SCC 180) .
4. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 14)
5. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence"
which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 16; CBI versus Vijay Sai Reddy, (2013) 7 SCC 452)
6. The Courts are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of the constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness.
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018The sanctity of liberty is the fulcrum of any civilised society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilised. Deprivation of liberty of a person has enormous impact on his mind as well .
as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. [The] society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible.
Therefore, when an individual behaves in a disharmonious manner ushering in the disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law. (See Neeru Yadav versus State of U.P., (2014) 6 SCC 508, para 16; Rakesh Ranjan Yadav versus CBI, (2007) 1 SCC 70, para 16; Masroor versus State of U.P., (2009) 14 SCC 286, para 15; Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another, (2012) 9 SCC 446, paras 10 & 25; Chandrakeshwar Prasad alias Chandu Babu versus State of Bihar and another, (2016) 9 SCC 443 paras 10, 11) ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
7. Detailed examination of evidence and elaborate documentation of merits of the case are to be avoided. (See Puran versus Rambilas and another, (2001) 6 SCC 338, .
para 8; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp. 535-36, para 11); Vinod Bhandari versus State of Madhya Pradesh, (2016) 15 SCC 389, para 13; Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 2.) Consideration of details of the evidence is not a relevant consideration. While it is necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided by refraining from considering the merits of material/evidence collected by the prosecution. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 15; and Criminal Appeal No. 1175 of 2018, titled The State of Orissa versus Mahimananda Mishra, decided on 18th September, 2018)
8. It is not necessary to go into the correctness or otherwise of the allegations made against the accused as this is a subject matter to be dealt with by the trial Judge.
(See Dataram Singh versus State of Uttar Pradesh and another, (2018) 3 SCC 22, para 16)
9. Where prima facie involvement of the accused is apparent, material contradictions in the charge sheet are required to be tested at the time of trial and not at the time of consideration of grant of bail. (See Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 28) ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
10. Probability or improbability of the prosecution version has to be judged based on the material available to the court at the time when bail is considered and not on the basis of discrepancies. (See Anil Kumar Yadav versus State (NCT of .
Delhi) and another, (2018) 12 SCC 129, para 21)
11. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and reasons for grant of bail in cases involving serious offences should be given. (See Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528: (SCC pp. 535-36, para 11); Dipak Shubhashchandra Mehta versus Central Bureau of Investigation and another, (2012) 4 SCC 134, para 32; Vinod Bhandari versus State of Madhya Pradesh, (2016) 15 SCC 389, para13; Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 29)
12. At the time of assigning reasons in order to grant/refuse bail, there should not be discussion of merits and demerits of the evidence. (See State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178, para 15)
13. Giving reasons is different from discussing evidence/merits and demerits. (See Puran versus Rambilas and another, (2001) 6 SCC 338, para 8; State of Bihar versus Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC 178, para 15)
14. Under Section 439 CrPC, the Sessions Court and the High Court has concurrent jurisdiction to grant bail. Therefore, an application filed before the High Court under Section 439 CPC, after rejection of an application filed before Sessions ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 Court under the said Section, is definitely a successive application and is not a revision or appeal against rejection of bail application by the Sessions Court.
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15. An accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. (See Lt. Col. Prasad Shrikant Purohit versus State of Maharashtra, (2018) 11 SCC 458, para 30)r
16. The period of incarceration by itself would not entitle the accused to be enlarged on bail. (See Anil Kumar Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129, para 24; Gobarbhai Naranbhai Singala versus State of Gujarat (2008) 3 SCC 775, para 22 and Ram Govind Upadhyay versus Sudarshan Singh, (2002) 3 SCC 598, para
9)
17. Filing of charge sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. (See Virupakshappa Gouda and another versus State of Karnataka and another, (2017) 5 SCC 406, para 12)
14. The relevant factors to be kept in mind at the time of consideration of bail applications are as follows:
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018(1) Satisfaction of the Court in support of the charge as to whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(2) Nature and gravity of the accusation/ charge;
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(3) Seriousness of the offence/crime and severity of the punishment in the event of conviction;
(4) Nature and character of supportive evidence;
(5) Character, conduct, behaviour, means, position and standing of the accused;
(6) The Courts must evaluate the entire available material against the accused very carefully; circumstances which are peculiar to the accused and the Court must also clearly comprehend the exact role of the accused in the case;
(7) The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(8) Position and status of accused with reference to the victim and witnesses to assess the impact that release of accused may make on the prosecution witnesses and reasonable apprehension of the witnesses being influenced or tampered with or apprehension of threat to the complainant/ witnesses and possibility of obstructing the course of justice;
(9) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(10) likelihood and possibility of the accused's likelihood to repeat similar or the other offences;
(11) A reasonable possibility of the presence of the accused not being secured at the trial and danger of the accused absconding or fleeing from justice;::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
(12) Impact of grant of bail on the society and danger, of course, of justice being thwarted by grant of bail affecting the larger interest of the public or the State;
(13) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, .
no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(14) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(15) Whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(16) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail;
(17) 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.
(See - Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118; Gurbaksh Singh Sibbia versus State of Punjab, (1980) 2 SCC 565; Prahlad Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC 280; Puran v. Rambilas (2001) 6 SCC 338; Ram Govind Upadhyay v.
Sudarshan Singh (2002) 3 SCC 598; Chaman Lal versus State of U.P. and another, (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, para 11); Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13, para 16); State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, para 18; Prashanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496; Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694; Prakash Kadam versus Ramprasad Vishwanath Gupta, (2011) 6 SCC 189; Kanwar Singh Meena versus State of Rajasthan and another, (2012) 12 SCC 180; Anil Kumar ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 Yadav versus State (NCT of Delhi) and another, (2018) 12 SCC 129; Criminal Appeal No. 1175 of 2018, titled The State of Orissa versus Mahimananda Mishra, decided on 18th September, 2018)".
15. In present case, alleged recovery of 2.689 kilograms charas .
is involved. Section 37 of NDPS 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)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section19 or section 24 or section 27A and also for offences involving rcommercial 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."
16. Section 37(1) (b) starts with negative expression and mandates that no person involving in the offence related to the commercial quantity of contraband shall be released on bail or on his own bond, unless conditions provided therein are fulfilled and one of these conditions is that where Public Prosecutor opposes the application, the Court should satisfy ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 that there are reasonable grounds for believing that the persons is not guilty of such offence. In present case, though counsel for the petitioner has raised issue of certain discrepancies in the evidence relied upon by the .
prosecution, but at the same time, fact remains that all discrepancies referred by him are on the basis of documents relied upon by the prosecution and supplied with the challan. There is no material before this Court, so as to verify that whether all these discrepancies were put to the concerned prosecution witnesses or not and further even, had such material been before this Court, in view of principles laid down by the Apex Court to be considered at the time of grant of bail, it would not have been appropriate for this Court to evaluate the merit of the evidence for granting the bail, more particularly keeping in view the stage of the trial, as stated supra, the case is listed for recording of remaining two witnesses. In my opinion, in absence of material to substantiate the false implication on the basis of evidence on record, I do not find these discrepancies to be material so as to enlarge the petitioner on bail at this stage, as discrepancy with regard to description of carry bag from which the contraband has been allegedly recovered, is not contrary, but rather supplementary to each other, as description has been recorded by two different persons having different sense of observation and in description given on chemical analysis report contains additional information. So far as discrepancy with regard to seal, time gap, entries in log book and entries in hotel record, are concerned, I am refraining from making any observation on merit, as the ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 said discrepancies, if any, are to be explained by the concerned prosecution witnesses whose statement are neither before me nor these discrepancies pointed out, in itself, are sufficient to disbelieve the .
prosecution story.
17. The recovery in present case is from the bag and not from the person of the petitioner, for which purpose Section 50 of the NDPS Act was not applicable. Therefore, discrepancy pointed out in the notice under Section 50 of the NDPS Act given to petitioner Sandeep may not have bearing on the recovery of contraband. However, that question based on rival pleas of prosecution and the accused, referring the pronouncements of the Apex Court, is required to be considered by the trial Court and therefore, applicability of verdict of the Apex Court in Arif Khan's case is an issue to be considered by the trial Court, as the material before me does not contemplate ex-facie that no case is made out.
18. Similarly, applicability and effect of judgement of the Apex Court case law in Mohan Lal's case is to be considered on the basis of evidence on record. This Court at the time of considering the bail application, that too at the fag end of the trial, is not expected to evaluate evidence on merits.
19. In E Michalraj's case, 4.07 kilograms Heroin was recovered from the possession of accused therein and on the basis of percentage of the purity of such heroin, reported by the laboratory, the said quantity was considered to be 60 grams and the accused was punished accordingly on ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 the basis of percentage of purity of heroin which is an opium derivative, as defined under Section 2(xvi) (d) of NDPS Act, which reads as under:-
"Opium derivative" means-
.
(a) medicinal opium, that is, opium which has undergone the processes necessary to adapt it for medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other Pharmacopoeia notified in this behalf by the Central government, whether in powder form or granulated or otherwise or mixed with neutral materials;
(b) prepared opium, that is, any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross or other residue remaining after opium is smoked;
(c) Phenanthrene alkaloids, namely, morphine, codeine, thebaine and their salts;
(d) Diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;
and
(e) all preparations containing more than 0.2 per cent of morphine or containing any diacetylmorphine;"
20. And the opium derivative is a manufactured drug, as evident from definition of manufactured drug in Section 2 (xi), which reads as under:-
"Manufactured drug" means-::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central government may, having .
regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug, but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;"
21. Charas is included in cannabis (hemp) andhas been defined in Section 2(iii) of NDPS Act, which reads as under:-
" Canabis (hemp)" means:-
(a) charas, that is, the separated resin, in whatever from, whether crude or purified, obtained from the cannabis plant and also included concentrated preparation and resin known as hashish oil or liquid hashish;
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;"
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22. In case titled as Harjeet Singh's case the Apex Court was dealing with recovery of 7.10 kilograms opium. In this case, the Apex Court had held that the ratio of E. Michal Raj's case is not applicable for opium. Relevant observations of the Apex Court are as under:-
"23. The judgment in E. Micheal Raj has dealt with heroin i.e. diacetylmorphine which is an "opium derivative" within the meaning of the terms as defined in Section 2 (xvi) of the NDPS Act and therefore, a "manufactured drug" within the meaning of Section 2 (xi) (a) of the NDPS Act. As such the ratio of the said judgment is not relevant to the adjudication of the present case.
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26. Thus, the aforesaid judgment in E.Micheal Raj has no application in the instant case as it does not relate to a mixture of narcotic drugs or psychotropic substances with one or more substances".....
23. Full Bench of this Court in Mehboob Khan's case has held that charas is a resin mass and presence of resin in stuff, unless there being any evidence qua the nature of the natural substance, entire mass has to be taken as charas.
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 201824. The small and commercial quantity was defined by the Government of India, vide notification dated 19.10.2001 specifying small quantity and commercial quantity and vide notification dated 18.11.2009 .
Note 4 was added below it, whereby it was clarified that for the purpose of determining the small and commercial quantity, entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content shall be taken into consideration. For the purpose of determining the small and commercial quantity of the recovered contraband, entire mass has to be taken into consideration.
25. E Michalraj's case was dealing with the case pertaining to recovery contraband on 5.3.2001, which was decided on 11.3.2008.
Notification of small and commercial quantity was issued on 19.10.2001 and clarification for taking into consideration the entire mass was issued vide notification dated 18.11.2009 and E Michalraj's case was decided on 11th March, 2008. In Harjeet Singh's case alleged contraband was recovered on 4.7.2003, wherein it was held that percentage of morphine is not a decisive factor for determination of quantum of punishment as opium is to be dealt with under distinct and separate entry for that of morphine and it was held that E Michal Raj's Case is not applicable in that case, as it ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 does not relate to mixture of narcotic drug or psychotropic substance with one or more substances.
26. At the time of considering the issue with respect to charas in .
Mehboob Khan's case the Full Bench of this High Court has considered the case pertaining to the period prior to notification dated 18.11.2009 when note 4 was not there below the table specifying small and commercial quantity. However, despite that, keeping in view the definition of charas under Section 2(III), it was held that entire mass of charas has to be taken as charas.
27. Reference made in Hira Singh's case has no impact in the present case, as the said reference is in different context, which reads as under:
"12. The three-Judge Bench may have to consider, amongst others, the following questions:. 12.1 Whether the decision of this court in E.Micheal Raj requires reconsideration having omitted to take note of Entry 239 and Note 2 (two) of the Notification dated 19-10-2001 as also the interplay of the other provisions of the Act with Section 21? 12.2 Does the impugned notification issued by the Central Government entail in redefining the parameters for constituting an offence and more particularly for awarding punishment? 12.3 Does the Act permit the Central Government to resort to such dispensation?::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018
12.4 Does the Act envisage that the mixture of narcotic drug and seized material/substance should be considered as a preparation in totality or on the basis of the actual drug content of the specified .
narcotic drug?
12.5 Whether Section 21 of the Act is a stand-alone provision or intrinsically linked to the other provisions dealing with "manufactured drug" and "preparation"
containing any manufactured drug?"
28. Learned Counsel for the petitioner has insisted to follow the judgment passed by the Coordinate Bench of this Court, wherein on the basis of percentage of pure resin contents of 'Charas', instead of considering the entire mass as 'Charas', quantity of recovered contraband has been considered lesser than commercial quantity and the accused has been enlarged on bail, as for a quantity, lesser than commercial quantity, rigors of Section 37 of NDPS Act are not applicable.
29. On the contrary, respondent/State is harping upon the judgment of the full Bench of this Court, passed in Mehboob Khan's case, (supra), findings returned by the Division Bench of this High Court in Cr.MP(M) No.1145 of 2014, titled as Nirmal Singh Versus State of H.P. and order passed by another Coordinate Bench in Cr.MP(M) No.77 of 2018, titled as Harinder Versus State, based on finding returned by the Division Bench in Nirmal Singh's case and also the judgment passed by the Apex Court in Harjeet Singh's case (supra).
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 201830. There are two conflicting views of this High Court, for determining the quantity of recovered 'Charas' on the basis of pure contents of resin found therein during chemical analysis by the State Forensic Science Laboratory. It is .
settled principle of precedent that when there are two conflicting views of the same Court, the only option available is to follow the judgment rendered by the larger Bench. The Apex Court in case titled as Mattulal Versus Radhe Lal, reported in AIR 1974 Supreme Court 1596, has held that a former decision of larger Bench will prevail over later decision of a smaller Bench (See-Para 11)".
Similarly, in case titled as N.S. Giri Versus Corporation of City of Mangalore, reported in (1999) 4 Supreme Court Cases 697, the Apex Court has held that a decision by the Constitution Bench and/or a decision by a Bench of more strength, cannot be over looked to treat a later decision by a Bench of lesser strength as of a binding authority (See-Para 12). Learned Single Judge of our own High Court in case titled as Sita Ram Versus Satvinder Singh & another Latest HLJ 2008 (HP) 1110, has followed the same principle (See-Para 10).
31. On the issue under consideration, in Mehboob Khan's case, the Full Bench of this High Court, keeping in view the definition of 'Charas', in unambiguous terms, has held that unless presence of material substance is established, entire mass of 'Charas' shall be considered as contraband.
32. In E.Michalraj's case, quantity of recovered heroin, which is a opium derivative, has been determined by the Apex Court, on the basis of percentage of pure content of drug, whereas in Harjeet Singh's case, supra, the Apex Court has observed that E.Michalraj's case is applicable only for opium ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 derivative, but not to the mixture of narcotic drugs or psychotropic substances with one or more substances.
33. In answer to similar question referred by learned Single Judge, after .
noticing the judgments made by the Coordinate Benches of this Court, to the larger bench in Cr.MP(M) No.1145 of 2014 (Nirmal Singh's case), the Division Bench of this High Court has answered that the mater stands already decided by the Apex Court in case titled as Harjeet Singh Versus State of Punjab, reported in 2011 (4) SCC 441. Therefore, the judgment passed by the larger Bench of this Court i.e. Full Bench in Mehboob Khan's case and the Division Bench in Cr.MP(M) No.1145 of 2014, Nirmal Singh's case, are binding on this Court.
34. Therefore, to consider a commercial quantity, on the basis of purified resin content, as a quantity of less than commercial quantity, is contrary to the judgments passed by the Full Bench and the Division Bench of this Court.
35. In Cr.MP (M) No.77 of 2018, titled as Harinder Singh Versus State of H.P., another Coordinate Bench of this Court after discussing the case law, has observed that the decisions relied upon on behalf of the petitioner therein, which were contrary to the larger Bench, were per incurium, as those decisions did not lay down the correct law. In present case also, the judgments relied upon by and on behalf of the petitioner are to be ignored as ratio of law propagated in these judgments/order are contrary to the judgment passed by the Full Bench in Mehboob Khan's case and judgment passed by the Division Bench in Nirmal Singh's case, supra.
::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 201836. As held in Mehboob Khan's case, principle of determination of quantity of recovered contraband, on the basis of pure resin contents, is not applicable in case of 'Charas' for its distinct, well defined and elaborated .
definition provided in Section 2 (iii) of the NDPS Act. E.Michalraj's case is also not applicable to 'Charas'. For definition of 'Charas' in Section 2 (iii) of NDPS Act, separated resin, in whatever form, whether crude or purified, obtain from cannabis plant is 'Charas' and therefore, prior to insertion of Note-4 on 18.11.2009 and thereafter, situation for 'Charas' remains the same. In case of 'Charas', entire mass is to be treated as 'Charas' because of its definition under Section 2 (iii) of NDPS Act, but neither because of Entry No.239 of the Notification specifying small quantity and commercial quantity nor because of insertion of Note-4 below it, vide Notification dated 18.11.2009. Therefore, reference of E.Michalraj's case along with validity of insertion of Note-4 by the Central Government, by notification SO 2941 (E) dated 18.11.2009 below a notification, specifying small quantity and commercial quantity, to the larger Bench in Hira Singh's case is of no bearing, in case of 'Charas'. Therefore, decision of larger Bench of the Apex Court in Hira Singh's case, in either way will not have any bearing on the cases related to 'Charas'. Therefore, the judgments of the Coordinate Bench, relied upon by learned counsel for the petitioner are of no help to the petitioner.
37. I am bound to follow the former decision of larger Bench of this High Court, which is inconsonance with the clarification rendered by the Apex Court in Harjeet Singh's case, with respect to applicability of E.Michalraj's case. These ::: Downloaded on - 17/01/2019 23:01:08 :::HCHP 3 Cr.M.P (M) No. 1608 of 2018 judgments have not been set aside or disturbed or over ruled till date by any subsequent Larger Bench of this Court or by the Apex Court as the case may be.
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38. Reference of former decision of the Court, to a larger Bench does not mean that the ratio of law, settled in judgment referred will ipso-facto becomes, redundant or stands over ruled. Unless a judgment is over ruled, the ratio laid down therein has a binding force obviously, subject to principles to be followed for determining the precedent. Hence, I am refrain to accept the plea of the petitioner to concur with the judgments of the Coordinate Bench of this Court for considering the quantity of 'Charas' as less than commercial quantity.
39. In view of the above discussion, I am of the opinion that the petitioner is not entitled for bail at this stage, hence the petition is dismissed.
(Vivek Singh Thakur), th 11 January, 2019 Judge.
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