Himachal Pradesh High Court
Reserved On: 12.06.2024 vs State Of Himachal Pradesh on 24 June, 2024
2024:HHC:3860 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 532 of 2024 Reserved on: 12.06.2024 .
Date of Decision: 24.06.2024
Kishori Lal ... Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. Rakesh Kumar Chaudhary, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking interim bail. It has been asserted that the petitioner was arrested by the police of Police Station Sarkaghat in FIR No. 159 of 2023 dated 31.08.2023 registered for the commission of offences punishable under Sections 18, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') at Police Station, Sarkaghat, District Mandi, H.P. The police filed a charge sheet on 16.11.2023. The charges were framed on 08.01.2023. The wife of the petitioner is suffering from LBA with 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 2Radiculopathy and is under treatment at Civil Hospital, Padhar, District Mandi, H.P. The Doctor advised her to have an Orthopedic and Neurology consultation and complete bed rest.
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She could not take the treatment without the petitioner's help.
She was brought to the Civil Hospital, Padhar on 12.02.2024, where she was again advised consultation from Multi Speciality Hospital. She was referred to IGMC, Shimla on 09.03.2024. The petitioner is the sole bread earner of the family and it is difficult for the petitioner's wife to take treatment without the petitioner's help. The petitioner has two minor daughters and one minor son, who cannot take their mother to the hospital.
The presence of the petitioner is required to take his wife to IGMC, Shimla. The petitioner is behind bars for six months and no useful purpose would be served by detaining him in custody.
He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the present petition seeking interim bail.
2. The petition is opposed by filing a status report asserting that the Police party was on patrolling duty on 31.08.2023 when a secret information was received at 11:30 am that Charas was being transported in a maxi cab. The police completed the formalities and set up a nakka after associating ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 3 independent witnesses. The police intercepted the vehicle at about 12:10 pm. Pawan Kumar and Kishori Lal were found present in the vehicle. The police searched the vehicle and .
recovered 3.406 kilograms of charas and 106 grams of opium.
The police seized the vehicle, its documents, charas and opium.
The police also arrested the occupants of the vehicle. These were sent to FSL for analysis and as per the report, the exhibit stated as charas was an extract of cannabis and a sample of charas, which contained 34.24% w/w raisin in it and the exhibit stated as opium was a sample of opium which contained 3.24% w/w morphine in it. The police conducted the investigation and prepared the challan against the petitioner/accused. The wife of the petitioner was ill. She was referred to IGMC, Shimla, however, there was no one to accompany her. There is no other person in the family, who could accompany her to the hospital.
The petitioner was also involved in the commission of a similar offence and FIR No.24 of 2014 dated 27.02.2014 for the commission of offences punishable under Sections 20 and 29 of the NDPS Act was registered against him in Police Station, Jogindernagar.
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 43. I have heard Mr. Rakesh Kumar Chaudhary, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.
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4. Mr. Rakesh Kumar Chaudhary, learned counsel for the petitioner submitted that the petitioner is the sole bread earner of the family. His wife has fallen ill. He is supposed to take care of her; hence, the petitioner be released on bail. He has relied upon the judgments of Suraj Singh versus the State of Rajasthan, SB Criminal Misc. Interim Bail application 1589/2024 was decided on 01.03.2024, Uttam Chand versus State in Cr.MPM No. 1251 of 2022 decided on 21.06.2022, Tanuj Kumar versus State of H.P, in Cr.MP(M) No. 1218 of 2022 decided on 16.06.2022, Sachin versus State in Cr.MPM No. 610 of 2024 decided on 22.04.2024, and Naim Ahmed versus the Government of NCT of Delhi in Criminal Appeal No. 1247 of 2024 decided on 28.02.2024. Nitish Adhikari versus State of West Bengal in SLP (Criminal) No.5769 of 2022 decided on 01.08.2022, Ankur Chaudhary versus State of M.P. in SLP (Criminal) No.4648 of 2024 decided on 23.05.2024, and Partap Singh versus State of H.P. in Cr.MPM No. 2401 of 2023 decided on 31.10.2023 in support of his submission.
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 55. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the petitioner was found in possession of the commercial quantity of charas .
and rigours of Section 37 of NDPS Act apply to the present case.
The accused cannot be released on bail without satisfying the twin conditions laid down in Section 37 of the NDPS Act; and the petitioner is not entitled to interim bail. Hence, he prayed that the present petition be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. It was laid down by the Hon'ble Supreme Court in Mukesh Kishanpuria versus State of West Bengal, 2010 (15) SCC 154, that the power to grant regular bail includes the power to grant interim bail pending final disposal of the regular bail petition.
Such a power is inherent in the power to grant bail. It was observed:
"3. However, the petitioner may apply for regular bail before the Court concerned and along with the said application, he may file an application for interim bail pending disposal of the regular bail application. We have made it clear on a number of occasions that the power to grant regular bail includes the power to grant interim bail pending the final disposal of the regular bail application. This power is inherent in the power to grant bail, ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 6 particularly in view of Article 21 of the Constitution of India. We are of the opinion that in view of Article 21 of the Constitution, a person should not be compelled to go to jail if he can establish prima facie that in the facts of the case he is innocent." (Emphasis supplied) .
8. Therefore, interim bail can be sought in cases, where the Court has the power to grant the regular bail and interim bail is granted to ensure that till the decision of the main case, the petitioner is not sent to custody.
9. The petitioner was found present in the vehicle, from which the police recovered 3.406 kgs of charas and 106 grams of opium. It was submitted that the exclusive and conscious possession of the petitioner has not been established. This is not acceptable. A similar situation occurred in Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, wherein the contraband was recovered from the vehicle and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed:
"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 7 the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was .
coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt.
& Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25. The word "possession" means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 8 within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
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27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-
appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
10. It was laid down by the Hon'ble Supreme Court in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 that a person is in possession if he is in a position to exercise control over the article. It was observed at page 111:
25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664] this Court held that: (SCC p. 472, paras 19-23 & 26) "19. Whether there was conscious possession has to be determined with reference to the factual backdrop.
The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 920. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the .
possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038] to work out a completely logical and precise definition of "possession"
uniform[ly] applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
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26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 10 [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431], 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 the 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 [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], 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.
11. Thus, the petitioner will be prima facie in conscious possession of the contraband being carried in the vehicle.
12. The police recovered 3.406 Kg of charas, which is a commercial quantity and rigours of Section 37 of the NDPS Act apply to the present case.
13. Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail.
Section 37 of the 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)--::: Downloaded on - 24/06/2024 20:33:27 :::CIS 11
(a) every offence punishable under this Act shall be cognizable;
(b) 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 an offence and that he is not likely to commit any offence while on r 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."
14. This section was interpreted by the Hon'ble Supreme Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC 738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail.
It was observed:
"7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are :
(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 12 (3) Under Section 27A and (4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it .
may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment.
(1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence;
(2) that person is not likely to commit any offence while on bail."
15. This position was reiterated in State of Kerala Versus Rajesh AIR 2020 SC 721 wherein it was held:
"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 the 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 the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow 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. The reason may be the ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 13 large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. 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. r 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 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 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 ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 14 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 CrPC but is also subject to the limitation placed by Section 37 which commences with the 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 an offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the 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 CrPC, 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."
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 1516. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 wherein it was observed at page 110:
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"21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are:
(i) The Prosecutor must be given an opportunity to oppose the application for bail; and
(ii) There must exist "reasonable grounds to believe" that : (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.
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 Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], 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 the existence of such facts and circumstances as are sufficient in themselves to justify the 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".::: Downloaded on - 24/06/2024 20:33:27 :::CIS 16
'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 [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532] ] ***
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. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
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 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.
::: Downloaded on - 24/06/2024 20:33:27 :::CIS 17Given 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."
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17. In the present case, there is no material to show that the petitioner has not committed the offence punishable under Section 20(b)(ii)(c) of the NDPS Act; rather the material on record clearly shows that the petitioner was found in possession of the commercial quantity of Charas. Hence, the petitioner is NDPS Act.
r to not entitled to bail in view of the rigours of Section 37 of the
18. Once, it is held that the petitioner is not entitled to regular bail, he cannot be held entitled to the concession of interim bail as per the judgment of Hon'ble the Supreme Court of India.
19. The judgments cited at the bar do not apply to the facts of the present case. In Ankur Chaudhary (supra), the bail was granted because of failure to conclude the trial within a reasonable time, which is not the case here. Similar was the situation in Sachin (supra), Naim Ahmed (supra), Nitish Chaudhary (supra), Partap Singh (supra), and Suraj Singh (Supra).
The quantity of the narcotics was not specified in Tanuj Kumar (supra), and it is not known, whether the petitioner therein ::: Downloaded on - 24/06/2024 20:33:27 :::CIS 18 could be enlarged on bail or not. In Uttam Chand (supra), the Court had not considered the question whether the petitioner was entitled to regular bail or not.
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20. Since, in the present case, the petitioner is not entitled to the concession of regular bail, therefore, the interim bail cannot be granted to him.
21. Consequently, the present petition fails and the same is dismissed.
22.
r to The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla ) Judge 24th June, 2024 (saurav pathania) ::: Downloaded on - 24/06/2024 20:33:27 :::CIS