Himachal Pradesh High Court
Satnam Singh vs State Of Himachal Pradesh on 12 January, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.M.P(M) No.1695 of 2023
Date of Decision: January 12, 2024
Satnam Singh ...Petitioner.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr.Naresh Kumar Thakur, Senior Advocate,
alongwith Mr.Divya Raj Singh, Advocate.
For the Respondent: Mr.Manoj Chauhan, Additional Advocate
General.
Vivek Singh Thakur, J.
Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short 'Cr.PC'), seeking bail in case FIR No.314 of 2021, dated 24.08.2021, registered under Sections 21, 22 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') in Police Station Una, District Una, H.P.
2. Status report stands filed. Record has also been made available.
3. In the status report, details in which petitioner- Satnam Singh, on the basis of trustworthy information from a reliable informer, was arrested for his involvement in business of prohibited drugs and for recovery of 3600 tablets of Lomotil and 298 tablets of Alprax 0.5, have been narrated in detail. 1 Whether reporters of the local papers may be allowed to see the judgment? 2
4. As per prosecution case, on disclosure of Satnam Singh regarding source of obtaining prohibitory drugs recovered from him, Deep Medicos at Delhi was raided where co-accused Parma Nand Pandey was found to be Incharge of the shop looking after the business. During raid 100 tablets of Lomotil and 375 tablets of Alprax were recovered from the shop, but co- accused could not produce any licence/permit or record to justify his entitlement to keep and sell these prohibited drugs recovered from his shop. Batch Number of recovered drugs i.e. 03L21029 of Lomotil and GDEB0002 of Alprax, was found same to the Batch Number of tablets of drugs recovered from the house of petitioner-Satnam Singh. For recovery of aforesaid drugs from the shop being looked after by co-accused, he was arrested and information in this regard was given to his younger brother Dayanand Pandey.
5. During interrogation, co-accused Parma Nand Pandey disclosed that licence and other records of Deep Medical Store were with the owner of the shop Virender Singh Tokas. Despite making efforts Virender Singh Tokas could not be traced on raiding his house and other places. On inquiry from Drug Controller of Karkar Duma Delhi on 7.9.2021 report was received through e-mail stating therein that as per record available on the official licence Portal of Department, no drug license was issued, retained or renewed to Mr. Deep Medicos at Shop No. 128-S-1 Mohammadpur near R.K. Puram New Delhi, however, as per record available on the Portal, mobile of one Virender Singh Tokas was available but no licence details were uploaded for 3 processing of application for grant or renewal/retention of their licence. It has also come in knowledge that due to fire incident on 5.7.2019, records of the Department including file of the Firm (if any) in subject, has burnt and there is no information, other than uploaded, on the official website of the Department was available and therefore, genuineness of the licence of Deep Medicos could not be ascertained or verified.
6. As per prosecution case Virender Singh Tokas, owner of Deep Medicos could not be traced and, therefore, Non Bailable Warrants was obtained to ensure his production on 4.10.2021. On 10.10.2021, owner of shop Virender Singh Tokas attended the Police Station with copy of lease deed and other documents related to Deep Medicos claiming that shop was rented by him to co-accused/Dayanand Pandey and his brother Parmanand Pandey since year 2016 and licence of Deep Medicos dated 29.4.2007, was valid up to 28.4.2012 and GST registration of the Deep Medicos was in the name of co-accused Dayanand Pandey since 1.7.2017 with the date of issue of the Registration Certificate dated 19.9.2017, and in this registration, co-accused Dayanand Pandey was stated to be proprietor of the Shop.
7. It has been stated in the status report that on inquiry it was found that business of the Deep Medicos was being run by Parma Nand Pandey, and Virender Singh had rented out his shop to Dayanand Pandey, whereas Virender Singh is doing business of Property Dealer. It was concluded by the Investigating Agency, on the basis of photocopies produced by Virender Singh, that he was not involved in commission of any kind of offence and, 4 therefore, Non Bailable Warrants issued against him was got cancelled on 22.10.2021.
8. As per status report Satnam Singh has disclosed that whenever he purchased prohibited drugs from Deep Medicos Delhi, the same was purchased from Parmanand Pandey. It has been further stated in the report that on verification of the documents in the office of Assistant Commissioner, Department of Drugs and Trade and Taxes Vyapar Bhawan IP Estate Delhi, it was found that GST number which was in the name of Dayanand Pandey is the same GST number which has been mentioned in the bills of three medicines, which were issued by Whole Seller to Deep Medicos for supply of drugs and further the documents i.e PAN Card of Dayanand Pandey is also in the record of the aforesaid Department.
9. Further on verification of supply of medicine with respect to bills invoices produced by Parma Nand Pandey in the Court, it was found that payment of all these drugs, to all above referred three Whole Sellers, was made from account bearing No. 071405500560 of Deep Medicos. On further inquiry, the aforesaid account number maintained in ICICI Bank was found in the name of co-accused Dayanand Pandey which was opened on 19.10.2016 and in the account for KYC photocopies of PAN Card and Aadhar Card of Dayanand Pandey were filed.
10. Lastly, it is stated in the status report that as per available record till date, it appears that Parma Nand Pandey in connivance with his brother Dayanand Pandey was involved in illegal business of supplying prohibited drugs and transactions in 5 this regard were being made from Bank Account of Dayanand Pandey further that despite making all out efforts, co-ccused Dayanand Pandey was not traceable, whereas for recovery of Lomotil and Alprax during raid in Deep Medicos, kept without record/ licence/permit was found in the possession of Parma Nand Pandey and he had been found involved in commission of offence under Section 21 and 22 of NDPS Act.
11. Parma Nand Pandey, after arrest was enlarged on bail by this Court vide order dated 12.07.2022 passed in Cr.M.P.(M) No.469 of 2022.
12. It is stated that co-accused Dayanand Pandey was absconding and was not traceable despite issuance of Non Bailable Warrants and, therefore, proceedings under Sections 82 and 83 Cr.P.C. were undertaken against him and he was declared proclaimed offender. However, Dayanant Pandey had approached this Court by filing Cr.M.P.(M) No. 1421 of 2023 which was rejected by this Court vide order dated 20.06.2023.
13. Petitioner had approached the Special Judge for granting him bail by filing Bail Application CIS Registration No.238 of 2022, which was dismissed on 20.08.2022 by Special Judge-II, Una, District Una, H.P.
14. Learned counsel for the petitioner submits that petitioner has been subjected to face the trial for recovery of Alprax as well as Lomotil whereby vide Notification dated 26.02.2003 issued by the Finance Ministry (Revenue Department) published in Gazette of India, Alprax has been deleted from the list of Narcotic Drugs and Psychotropic 6 Substances Rules, 1985 and thus, it has been contended that petitioner, even if case of prosecution is considered to be true, has to face the trial for recovery of Lomotil only.
15. It has been canvassed by learned counsel for the petitioner that petitioner is behind the bars since about 2 ½ years and till date, out of total 43 witnesses, only 27 witnesses have been examined and about 1/3rd of total witnesses are yet to be examined. Next dates of hearing in the trial have been fixed for recording evidence on 19.01.2024 and 20.01.2024, on which dates 4 witnesses on each day have been summoned. Remaining witnesses shall be examined lateron, which may consume considerable time. Taking into consideration pace of the trial, it is apparent that conclusion of trial is not possible in near future despite the fact that petitioner is undertrial prisoner. It has further been contended that there is no role of the petitioner in delaying the trial and, therefore, it has been submitted that in these facts and circumstances, petitioner is entitled for bail.
16. Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 01.08.2022 passed by the Supreme Court in a petition for Special Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and Kashmir, wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5 months, observing that there was no likelihood of completion of trial in near future; and order 7 dated 12.10.2020, passed by Three Judges' Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.
17. Learned counsel for the petitioner has referred pronouncement of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused, under Sections 21(c) and 37 of NDPS Act, was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.
18. Learned counsel for the petitioner has also placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.
19. Reliance has also been placed on order dated 10.11.2021 passed by the Supreme Court in Special Leave to 8 Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh Vs. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.
20. Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021 passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was filed on 23.9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.
21. Learned counsel for petitioner has also relied upon order dated 5.8.2022 passed by the Supreme Court in Gopal Krishna Patra @ Gopalrusma vs. Union of India (Cr. Appeal No. 1169 of 2022), wherein accused in custody since 18.6.2020 was ordered to be enlarged on bail considering the facts and circumstances on record and length of custody undergone by him.
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22. Learned counsel for petitioner has placed reliance upon judgment dated 13.1.2023 passed by this Bench in Cr.MP(M) No. 61 of 2023 titled Chet Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 1.900 Kg. charas has been ordered to be enlarged on bail.
23. Learned counsel for petitioner has placed reliance upon judgment dated 29.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2703 of 2022 titled Ram Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 2 Kg. charas has been ordered to be enlarged on bail.
24. Learned counsel for petitioner has placed reliance upon judgment dated 22.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2521 of 2022 titled Prem Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 9 months for recovery of 2.605 Kg. charas has been ordered to be enlarged on bail.
25. Learned counsel for petitioner has placed reliance upon judgment dated 28.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 349 of 2023 titled Kewal Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 5 years and 4 months for recovery of 3.045 Kg. charas has been ordered to be enlarged on bail.
26. Learned counsel for petitioner has placed reliance upon judgment dated 12.12.2022 passed by this Bench in Cr.MP(M) No. 2324 of 2022 titled Rajesh Kumar vs. State of 10 Himachal Pradesh wherein an accused under detention for the last 3 years and 5 months for recovery of 3.125 Kg. charas has been ordered to be enlarged on bail.
27. Learned counsel for petitioner has placed reliance upon judgment dated 12.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 59 of 2023 titled Joseph Shobal vs. State of Himachal Pradesh and judgment dated 26.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2657 of 2022 titled Jeet Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 3-4 months for recovery of 3.382 Kg. charas have been ordered to be enlarged on bail.
28. Learned counsel for petitioner has placed reliance upon judgment dated 20.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 327 of 2023 titled Surender Singh vs. State of Himachal Pradesh wherein an accused under detention for the last 2 years and 7 months for recovery of 4.76 Kg. charas has been ordered to be enlarged on bail.
29. Learned counsel for petitioner has placed reliance upon judgment dated 23.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 323 of 2023 titled Tivalue @ Shiv Chand vs. State of Himachal Pradesh wherein an accused has been enlarged on bail who was under detention for the last 3 years and 4 months for recovery of 5 Kg. charas and out of 11 witnesses only 6 witnesses were examined.
30. Learned counsel for petitioner has placed reliance upon judgment dated 23.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2570 of 2022 titled Chet Ram vs. State of Himachal 11 Pradesh; judgment dated 4.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 2836 of 2022 titled Kaul Ram vs. State of Himachal Pradesh; judgment dated 04.01.2023 passed by Coordinate Bench in Cr.MP(M) No. 2837 of 2022 titled Krishan Chand vs. State of Himachal Pradesh wherein accused under detention for the last 3 years and 1 month for recovery of 5.679 Kg. charas have been ordered to be enlarged on bail, observing as under:-
"7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instance case till date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?
8. It is submitted by learned counsel for the petitioner that till date only eight witnesses have been examined and ten more witnesses remain to be examined, despite the fact that petitioner is in custody since 20.11.2019. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.
.......
12. In Gopal Krishna Patra @ Gopalrusma vs. Union of India (Cr. Appeal No. 1169 of 2022) decided on 05.08.2022, Hon'ble Supreme Court has held as under:-
"The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No.02/2020 in respect of offences punishable under Sections 8, 20, 27-AA, 28 read with 29 of Narcotic Drugs and Psychotropic Substances Act, 1985. The application seeking relief of bail having been rejected, the instant appeal has been filed.12
We have heard Mr.Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr.Sanjay Jain, learned Additional Solicitor General for the respondent.
Considering the fact and circumstance on record and the length of custody undergone by the appellant, in our view the case for bail is made out"
.......
16. Reverting to the facts of the case, the petitioner is in custody since 20.11.2019 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that the delay in trial is attributable to the petitioner."
31. Referring aforesaid pronouncements, learned counsel for petitioner has pleaded that petitioner is also entitled for bail on the same analogy.
32. Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation and, therefore, petitioners are not entitled for bail.
33. Learned counsel for the petitioner submits that petitioner is ready to abide by any condition imposed by this Court for enlarging him on bail and he is also ready to furnish sureties, including surety of his relative.
34. Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion 13 that petitioner may be enlarged on bail in present case at this stage.
35. Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of `2,00,000/- with two sureties, each in the like amount, one of which shall be of relative of petitioner, as undertaken, to the satisfaction of trial Court/Special Judge within four weeks, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-
(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;14
(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and
(ix) the petitioner shall not leave India without permission of the Court.
36. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
37. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
30. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
31. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
32. The petition stands disposed of in the aforesaid terms.
(Vivek Singh Thakur), Judge.
January 12, 2024
(Purohit)
Digitally signed by SUBHASH CHAND DHIMAN
SUBHAS DN: C=IN, O=HIGH COURT OF HIMACHAL
PRADESH, OU=HIGH COURT OF HIMACHAL
PRADESH SHIMLA, Phone=
3418061207364d8c002725dfc58ff116f678c3d392 89db29b992cce875905119, PostalCode=171001, H CHAND S=Himachal Pradesh, SERIALNUMBER= 5ce240fac0e1267843f29509683d09a9912af10edc 4e6cd2ed5d4a8c30134c1b, CN=SUBHASH CHAND DHIMAN DHIMAN Reason: I am the author of this document Location:
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