Himachal Pradesh High Court
______________________________________________________________ vs State Of H.P on 11 January, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.MP (M) No. 1751 of 2018
Reserved on:03.01.2019
.
Decided on : 11.01.2019
______________________________________________________________
Dilbar Singh ....petitioner
Versus
State of H.P.
.....respondent
______________________________________________________________
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
______________________________________________________________
For the petitioner : Mr. Rajesh Kumar, Advocate.
For the respondent :
Mr. Shiv Pal Manhans,
Additional Advocate General
with Mr. R.P. Singh amd Mr.
R.R. Rahi, Deputy Advocate
General.
______________________________________________________________
Vivek Singh Thakur, J.
The present petition has been filed seeking regular bail in case FIR No. 97/18, dated 06.11.2018, at Police Station Kandaghat, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substance Act (in short "NDPS Act"), petitioner is in custody since 6.11.2018.
2. Status report stands filed and record has been produced, perusal whereof indicates that on 6.11.2018, during traffic checking, Head Constable Bhupender along with 1 Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 2police party, at about 4.45 P.M., had stopped vehicle bearing No. HP13-5118 ALTO 800, coming from Shimla side. The .
vehicle was being driven by present petitioner, who was accompanied by one Manoj Kumar sitting on the front seat of left side. During checking of the vehicle, a carry bag was found on the seat on which Manoj Kumar was sitting, where-
from 1kg 505 gm Charas was recovered. During inquiry, Dilbar Singh (petitioner) and Manoj Kumar (co-accused), disclosed that they had purchased contraband from an unknown Nepali at Theog Bus stand and they were intending to earn profit by selling it further.
3. On recovery of the contraband, the same was seized by completing the codal formalities and a rukka was sent to the SHO, Police Station with a request to register FIR and appoint some another investigating officer for further investigation. On the basis of rukka, FIR was registered and the further investigation was handed over to Sub Inspector Rajinder Singh, who completed the remaining part of investigation and challan is likely to be presented in the Court within very short time. It is further stated in the status report that since 9th November, 2018, after remaining in the police custody, the petitioner is in judicial custody.
::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 34. Learned counsel for the petitioner has contended that even if, the prosecution case is considered to be true in .
toto, then also, the recovered charas cannot be held to be of commer12cial quantity as in the chemical analysis report, received from the State FSL, quantity of purified resin has been found to be 31.06% w/w and, therefore, alleged recovered contraband becomes to about 467 gms and the said quantity, though, is greater than small quantity, but is far less from commercial quantity, and, therefore, rigors of Section 37 of NDPS, Act are not applicable in the present case and the petitioner, therefore, is entitled to be enlarged for bail. Learned counsel for the petitioner has further submitted that on the basis of percentage of purified resin reported in chemical analysis report, the Coordinate Bench of this Court in enormous cases has enlarged the accused therein on bail and he has also placed on reliance judgments passed by the Coordinate Bench in Cr.MP(M) No.1328 of 2018, titled as Jaswant Singh v. State of H.P., decided on 25.10.2018, Cr.MP(M) No.1505 of 2018, titled as Sewak Ram vs. State of H.P., decided on 22.11.2018, Cr.MP(M) No.1625 of 2018, titled as Narayan Singh vs. State of H.P. decided on 20.12.2018,Cr.MP(M) Nos. 1777 & 1778 of 2018, titled as Besati Devi vs. State of H.P. and ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 4 Pawan Kumar vs. State of H.P. decided on 27.12.2018 and Cr.MP(M) No.1765 of 2018, titled as Nageshwar .
Dipta vs. State of H.P., decided on 28.12.2018, wherein, petitioner(s) therein, were enlarged on bail by considering quantity of recovered contraband as intermediate quantity on the basis of percentage of the purified resin reported by State FSL after chemical analysis of contraband.
5. It is canvassed by learned counsel for the petitioner that a view, taken by the Coordinate Bench consistently, is required to be followed to maintain the judicial proprietary as bail is being granted to some persons in the similar12 facts and circumstances, by passing elaborate judgments by the Coordinate Bench and, therefore, the petitioner is also entitled for grant of bail to the similar analogy.
6. It is further contended that, even otherwise, Sectio12n 37 does not create an absolute bar in granting bail in case of recovery of commercial quantity of contraband from a person and in present case, the petitioner was only driving the vehicle and thus, cannot be, prima facie, said to be in conscious and exclusive possession of recovered contraband and, therefore, on this ground also, he is entitled for bail, as for the simple reason that a person sitting with ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 5 him in a car was found in possession of contraband, he cannot be held to have been conspired to commit the said .
offence.
7. Another ground, taken by the counsel for the petitioner is based on the basis of ratio of law laid down by the Hon'ble Apex Court in Mohan Lal vs. State of H.P. reported in AIR 2018, Supreme Court 2853 and further release has been put on a decision of the Division Bench of this High Court, passed on 29.11.2018 in Cr. Appeal No. 159 of 2012, titled as State of H.P. vs. Abdul Latif and another, wherein acquittal of a person has been affirmed relying upon ratio of law laid down by the Apex Court in Mohan Lal's case.
8. On the contrary, learned Additional Advocate General has submitted that the enlargement of the accused on bail on the basis of percentage of purified resin found in the entire mass recovered from the said accused is contrary to the ratio of law laid down by the Hon'ble Full Bench of this Court in State of H.P. vs. Mehboob Khan, 2013 (3), Shimla12 Law Reporter (FB) 1834 and the formula of determining quantity of recovered contraband, adopted in E. Michal's case, is not applicable in present case, as clarified by the Apex Court in Harjeet Singh vs. State of Punjab, ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 6 reported in (2011) 4 SCC 441, and, thus, releasing of accused by the Coordinate Bench, who was found in .
conscious and exclusive possession of contraband of commercial quantity, is not justifiable. It is further contended that order/judgment(s) passed for releasing of persons ignoring the existing law, settled by the Apex Court and the Full Bench of this High Court, cannot be made basis for enlargement of the petitioner on bail in present case.
9. In the present case, petitioner is not entitled for benefit of ratio of law laid down by the Apex Court in Mohan Lal's case as further investigation in present case has been conducted by another Investigating Officer to whom investigation was assigned by the SHO after registration of FIR on the basis of rukka, received from the complainant/Investigating Officer. Otherwise also, at the time of consideration of bail, merits of the evidence are not to be evaluated. The role of Investigating Officer and the stage of investigation for handing over it to another Investigating Officer and effect thereof is a matter to be considered by the trial court. Present case is not a case where on the basis of evidence available on record, it can be said that ex facie no case is made out. In my opinion, law laid down by the Apex Court in Mohan Lal's case, is to be considered and evaluated ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 7 by the trial court and this ground is not available to petitioner at this stage more particularly when the further investigation .
has been conducted by the I.O. other than the complainant/I.O.
10. It is true that for recovery of contraband from accompanying co-passenger in a case, the owner of a car or a driver of car cannot be considered to have been conniving or conspiring to commit the offence for having in possession of contraband for that simple reason if there is no link between both, however, where, prima facie, both are interlinked and having acquaintance with each other, onus to rebut the connivance shifts to the owner/driver. In present case, the vehicle involved is not a taxi, but is a private vehicle and it is not a case where the unknown person was given a lift by the driver/owner of the vehicle rather both the occupants of the car well-known to each other. The contraband was recovered from the seat whereupon Manoj Kumar was sitting, however, the driver (present petitioner) has not given any plausible explanation for his innocence or company of Manoj Kumar.
It's true that it is for the prosecution to prove the case against the accused, but keeping in view the provisions of the Act containing reverse onus, as envisaged in the presumptions provided under Sections 35 and 54 of the Act, coupled with ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 8 the recovery of commercial quantity of contraband, it was encumbent upon the petitioner to explain his situation with .
respect to presence of co-accused in his car along with a recovered contraband. Prima facie there is nothing on record to delink the petitioner from the recovered contraband.
11. The applicability and effect of judgment of the Apex Court 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.
12. 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 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 offence and that he is ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 9 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.]
13. 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 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 ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 10 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;"
14. 'Opium derivative' is a manufactured drug, as evident from definition of manufactured drug in Section 2 (xi), which reads as under:-
"Manufactured drug" means-
(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;"::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 11
15. Charas is included in cannabis (hemp) and has been defined in Section 2(iii) of NDPS Act, which reads as .
under:-
"Cannabis (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
(c) any mixture, with or without any neutral material, of any of the above forms of r cannabis or any drink prepared therefrom;"
16. 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. ........................................................
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".....::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 12
17. 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.
18. 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.
19. 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 ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 13 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 cas12e, as it does not relate to mixture of narcotic drug or psychotropic substance with one or more substances.
20. 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 of12 charas under Section 2(III), it was held that entire mass of charas has to be taken as charas.
21. Reference made in Hira Singh's case has no impact on present case as the said reference is in difficult context which reads as under:-
::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 14"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?
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?"
22. 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.
23. 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 ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 15 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).
24. 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 ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 16 Ram Versus Satvinder Singh & another Latest HLJ 2008 (HP) 1110, has followed the same principle (See-Para 10).
.
25. 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.
26. 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 derivative, but not to the mixture of narcotic drugs or psychotropic substances with one or more substances.
27. 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 ha12s 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 ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 17 Cr.MP(M) No.1145 of 2014, Nirmal Singh's case, are binding on this Court.
.
28. 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.
29. 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.
30. 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) ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 18 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.
31. 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 judgments have not been set aside or disturbed or over ruled till ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP 19 date by any subsequent Larger Bench of this Court or by the Apex Court as the case may be.
.
32. 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.
33. Keeping in view the entire facts and circumstances, in my opinion, petitioner is not entitled for bail, at this stage.
Accordingly, the petition is dismissed. Record is returned.
(Vivek Singh Thakur) Judge 11th January,2019 (reena) ::: Downloaded on - 17/01/2019 23:01:07 :::HCHP