Daman Sharma vs State Of H.P on 16 December, 2022

[Cites 12, Cited by 4]

Himachal Pradesh High Court

Daman Sharma vs State Of H.P on 16 December, 2022

Bench: Virender Singh

                       IN THE HIGH COURT OF
              HIMACHAL PRADESH AT SHIMLA


                           Cr. MP(M) No. 2706 of 2022




                                                .

                              Decided on : 16.12.2022

        Daman Sharma





                                               ...Applicant
                            Versus





        State of H.P.
                                         ...Respondent
        ___________________________________________

        Coram

        Hon'ble Mr. Justice Virender Singh, Judge
        Whether approved for reporting?
        _______________________________________________



        For the Applicant :   Mr.   R.S.                Chandel,
                              Advocate.




        For the respondent : Mr. Shiv Pal Manhans,
                             Additional    Advocate





                             General    with    Mr.
                             Bhupender      Thakur,
                             Deputy        Advocate





                             General.

                              ASI   Kuldeep  Singh,
                              I.O./Police   Station,
                              Chamba, H.P.


        Virender Singh, Judge (oral)

::: Downloaded on - 19/12/2022 20:32:30 :::CIS 2

The applicant Daman Sharma, has filed the present bail application, under Section 439 of the Code of Criminal .

Procedure, for releasing him, on bail, during the pendency of the trial, in case FIR No. 78 of 2021, dated 8.3.2021, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the NDPS Act), registered with Police Station, Sadar Chamba, District Chamba, H.P.

2. The bail applicant has pleaded the fact that he is innocent person and has falsely been implicated in the present case, as he has nothing to do with the contraband, which is allegedly, shown to be recovered, from his exclusive and conscious possession of the person, who has also been named as coaccused in this case.

3. According to the applicant, investigation, in the present case, is complete and the Police has submitted the Challan before the trial Court.

4. Apart from this, the bail applicant, through his counsel Mr. Ravinder Singh Chandel, Advocate, has given certain undertakings, for which, he is ready to abide by, in case, he is released on bail.

5. As per the averments of the bail application, the applicant has also tried his luck by moving bail application No. 1022 of ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 3 2022, before learned Special Judge, Chamba, which was dismissed on 20.6.2022. On these submissions, a prayer has been made to allow the bail application.

6. On all these submissions, a prayer has been made to .

release him on bail.

7. When put to notice, the police has filed the status report, disclosing therein, that on 8.3.2021, I.O. HC Virender alongwith other police officials was present near Udaipur on picketing duty. At about 12:45 p.m., they were checking the vehicles crossing from there. In the meanwhile, a private bus bearing No. HP68B0164 came there from Chamba side. The Investigating Officer signalled the same to stop. When the Investigating Officer reached near seat Nos 37, 38 and 39, while checking the bus, then one person was found sitting on seat No.

39. He was having a gray/black coloured rucksack in his lap.

When the said person noticed the Police checking the bus, he got perplexed and tried to hide the rucksack underneath the seat.

8. On this, a suspicion arose in the mind of police and the police associated the occupants of seats No. 42 and 43, namely Nitish Bhandari and Surender Kumar, and inquired from the occupant of seat No. 39. On inquiry, the occupant of seat No. 39 disclosed his name as Taj Mohammad. When the rucksack carried by the said person was checked, the contraband, in the shape of ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 4 balls, was found in it. On the basis of experience and smell, the contraband was found to be Charas. On weighment, the Charas was found to be 4 kg 12 grams.

8. Other codal formalities were completed and the .

contraband, so recovered, was taken into possession. Accused Taj Mohammad was arrested and produced before the Court.

9. It is the further case of the police that during investigation, it was found that one person, namely Daman Sharma was calling accused Taj Mohammad on his mobile phone frequently and directing accused Taj Mohammad to bring Charas at Nainikhad, where, he was waiting for him, on his Motorcycle.

10. Consequently, H.C. Virender Singh alongwith his team had proceeded towards Nainikhad. Accused Daman Sharma, who as per status report, was waiting for Taj Mohammad was nabbed and was brought to Police Station, where he was duly identified by accused Taj Mohammad. Consequently, bail applicant was also arrested in this case.

11. The contraband, so recovered, was sent to forensic lab for chemical analysis and after receiving positive report, the police had filed the chargesheet against both the accused persons including the bail applicant. The Challan was submitted before the Court on 1.9.2021.

12. Learned Special Judge has chargesheeted both the ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 5 persons accordingly and as per the status report, the case is fixed for recording evidence of PW18, PW19 and PW21 on 30.12.2022.

It has been submitted by learned Additional Advocate General that only 11 witnesses are yet to be examined.

13. Lastly, in the status report, it has been apprehended that in case, the bailapplicant is released on bail, he may not be available for trial and may allure the witnesses, not to depose against them and he may again indulge in the same activities.

14. On these submissions, a prayer has been made to dismiss the bail application.

15. Learned counsel for the petitioner, in this case, has relied upon the decision of Hon'ble Supreme Court in Criminal Appeal No. 668 of 2020, titled as, Amit Singh Moni versus State of Himachal Pradesh, decided on 12.10.2020, as well as judgment passed by a coordinate Bench of this Court in Cr. M.P.(M) No. 1255 of 2022, titled as Puran Chand versus State of Himachal Pradesh, decided on 28.7.2022.

16. Admittedly, the contraband involved, in the present case, falls within the definition of 'commercial quantity'. Once this fact has been proved on file that the contraband, so involved, in the present case, falls within the definition of 'commercial quantity', the the rigors of Section 37(2) come into play. It is no longer resintegra that both the conditions as enumerated in ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 6 Section 37 of the NDPS must coexist before releasing the bail applicant, on bail, during the pendency of the trial.

17. Hon'ble Apex Court, in a recent decision, has elaborately discussed the provisions of Section 37 of the NDPS in a .

case reported in 2022(10) SCALE, 532 titled Narcotics Control Bureau vs. Mohit Aggarwal, wherein, it was held as under: "10. The provisions of Section 37 of the NDPS Act read as follows:

"[37. Offences to be cognizable and non bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

2. every offence punishable under this Act shall be cognizable;

3. no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 7 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.]

11. It is evident from a plain reading of the nonobstante clause inserted in sub section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of subsection (1) of Section 37 are also to be factored in. The conditions imposed in sub section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

12. The expression "reasonable grounds" has come up for discussion in several rulings ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 8 of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira"5, a decision rendered by a Three Judges Bench of this Court, it has been held thus: .

"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The r conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."

13. The expression "reasonable ground"

came up for discussion in "State of Kerala and others Vs. Rajesh and others"

6 and this Court has observed as below:

"20. The expression "reasonable grounds" means something more than ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 9 prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such .

                       facts    and    circumstances     as    are





                       sufficient in themselves       to    justify

satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that 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 is indeed uncalled for."

18. Before discussing the case of the applicant according to the provisions of Section 37 of the NDPS Act, this Court has to consider the case of the bail applicant, in the light of decisions of Hon'ble Supreme Court in Amit Singh Moni''s case (supra) and coordinate Bench of this Court in Puran Chand's case (supra).

19. A perusal of the orders passed by Hon'ble Supreme Court in Amit Singh Moni's case (supra) goes to show that the said orders were passed by the Hon'ble Supreme Court, keeping in view the peculiar facts and circumstances of the case, as the trial against the ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 10 accused, in that case, could not proceed further, due to Covid19 pandemic situation, whereas, in the present case, there is nothing on record to show that there is any .

delay in the progress of the trial. So far as decision of the Coordinate Bench of this Court in Puran Chand's case (supra) is concerned, the facts and circumstances of the present case are entirely different from the said case.

20. Before releasing the accused on bail, the twin conditions, as enumerated under Section 37 of the NDPS Act are to be satisfied. From the stand taken by the police, in the status report, at this stage, it is not possible for this Court to give findings that the bail applicant is not involved in the commission of the alleged crime. Similarly, it can not be said, at this stage, that the bail applicant will not indulge in any offence, while on bail. The conditions of Section 37 of NDPS Act, are cumulative and not alternative.

21. Moreover, while deciding the question of bail, it is the duty of the Court to maintain a delicate balance between individual liberty and larger interest of the ::: Downloaded on - 19/12/2022 20:32:30 :::CIS 11 society. Releasing a person involved in such a crime, will also give a wrong signal to the society that the person, after being arrested, in such a crime, is still moving freely .

in the society.

22. At this stage, the apprehension, as expressed by the police, as reproduced in para13 of the order, cannot be said to be unfounded, at this stage.

23. Considering all these facts, there is no ground to pass any order in favour of the bail applicant under Section 439 of the Cr.P.C. Consequently, the bail application of the bail applicant is dismissed.

24. Any observation, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

(Virender Singh) Judge December 16, 2022 (Kalpana) ::: Downloaded on - 19/12/2022 20:32:30 :::CIS

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