Himachal Pradesh High Court
Varinder Kumar @ Bindu vs State Of H.P on 25 June, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2024:HHC:3935 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 342 of 2024 Reserved on : 19.06.2024 Decided on : 25.06.2024 .
Varinder Kumar @ Bindu
... Applicant
Versus
State of H.P. ...Respondent
_____________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?
_________________________________________________ For the Applicant : Mr.N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
For the Respondent : Mr. Mohinder Zharaick,
Additional Advocate
General.
Virender Singh, Judge
Applicant Varinder Kumar @ Bindu has filed the present application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as 'the Cr.P.C'.), for releasing him, on bail, during the pendency of the trial, in case FIR No.125 of 2023, dated 15.9.2023, under Sections 20, 25 and 29 of the ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 2 ( 2024:HHC:3935 ) Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the NDPS') registered with Police Station, Gagret, District Una, H.P. .
2. The 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 alleged offence.
3. As per the applicant, he is permanent resident of the address, as mentioned, in the application, and is having deep roots in the society.
4. It is the further case of the applicant that he was Chairman of the notified area Committee, Gagret and has close affinity with the former MLA of the constituency. These facts have been pleaded in order to show that being member of the party of opposition, he has been made scapegoat, by the Police and is being victimized.
5 According to the applicant, the alleged consignment was in the name of M/s Dutta Medicine Gagret, and he has no concern with the same. The ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 3 ( 2024:HHC:3935 ) alleged recovery has been made from vehicle No.HP 36 B8124, being driven by Maan Singh and accompanied by Mahasu Ram.
.
6. After registration of the FIR, bank accounts of the applicant, as well as, his wife, are stated to have been frozen.
7. On the basis of above facts, the applicant, through his counsel, has given certain undertakings, for which, he is ready to abide by, in case, released on bail.
8. The applicant has earlier tried his luck by moving similar application bearing Cr.MP(M) No.2622 of 2023, which was dismissed, by this Court, on 27.12.2023.
9. Another ground, upon which, the relief of bail has been sought, is that the investigation, in the present case, is complete and as such, according to the applicant, his judicial custody is nothing, but pretrial punishment, which is prohibited under the law.
10. On these submissions, a prayer has been ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 4 ( 2024:HHC:3935 ) made to allow the bail application.
11. When put to notice, police has filed the status report, disclosing therein, that on 15.9.2023, .
Additional Superintendent of Police Shri Rajender Kumar, ANTF Kangra, has submitted the ruqua to Police of Gagret, for the registration of the FIR. In the ruqua, it has been mentioned by the Additional Superintendent of Police, Shri Rajender Kumar, ANTF, Kangra that he, alongwith other police officials, was on patrolling duty and the duty to detect the crime, relating to narcotic drugs.
11.1. On 15.9.2023, at about 7: 30 p.m., the I.O.
was present on the gate of Shiv Bari temple. At that time, he received a secret information, with regard to indulgence of one Varinder Kumar @ Bindu (applicant), s/o Shri Vikram Chand, R/o ward No. 5, NAC Gagret, Tehsil Ghanari, District Una, in the business of selling the narcotic substance.
11.2. As per the information, a big haul of the medicines was being transported in pickup No.HP ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 5 ( 2024:HHC:3935 ) 36B8124 to his residential house from Army Ground, Gagret. The said information was found to be authentic and reliable. It has also been informed that in case, the .
said vehicle is checked, large quantity of the narcotic substances, could be recovered.
11.3. It is the further case of the I.O. that in case, the efforts to obtain the authorization letter/search warrant would have been made, in that eventuality, contraband r could be removed. Thereafter, Drug Inspector Rajat Sharma was informed and asked to come near the Army Ground. Thereafter, the I.O.
alongwith the police officials had proceeded towards the Army Ground, Gagret. The information, under Section, 42(2) of the NDPS Act, was prepared and was submitted to SDPO, Amb, through LHC Aruna Kumari, ANTF, Kangra.
11.4. When, the I.O., alongwith police officials reached outside the Army Ground, Gagret, at about 8:10 p.m, he noticed two persons, namely Avinash Bhardwaj and Kusum Lata, who is vice president of ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 6 ( 2024:HHC:3935 ) Nagar Panchayat, Gagret. Both of them were apprised about the secret information, as received by the I.O.
and associated in the investigation of the case.
.
11.5. When, the Police party entered the Army Ground, then, they noticed the aforesaid pickup, being driven by its driver, coming towards Army Ground. The I.O., with the help of other police officials, had stopped the said vehicle. In the meanwhile, Drugs Inspector Rajat Sharma also reached there, who was also associated in the investigation, in the presence of local witnesses. The I.O. has shown his identity card to both the persons, sitting in the vehicle. Thereafter, they were inquired about the white plastic sack. Both of them had disclosed that this box (builty) belongs to Varinder Kumar @ Bindu, S/o Shri Vikram Chand. In the presence of these witnesses, both the said persons were directed to come out.
11.6. Thereafter, a white coloured sack was opened and a card board box, containing 60 card board boxes were found in it, and in the other box, 59 card ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 7 ( 2024:HHC:3935 ) board boxes, were found. Drugs Inspector Rajat Sharma checked the aforesaid boxes, in the presence of the witnesses, and on opening the boxes, Cap.
.
Paracetamol, Dicyclomine, Hydrocholride and Tramadol Hydrochloride capsules Proxywel spas were found.
Total 14,400/ capsules were found in the box, which has been marked as markI. In the other box, which has been marked as mark2, 14160 capsules were found. Thus, total 28560 capsules were found.
11.7. On inquiry, the driver of the pickup disclosed his name as Maan Singh, S/o Munna Ram, VPO Gagret, Tehsil Ghanari, District Una.
11.8. Other codal formalities were completed.
Thereafter, ruqua was prepared and submitted to Police Station, Gagret, for the registration of the FIR.
11.9. Initially, the investigation was conducted by Additional S.P. Rajender Kumar and thereafter, the same was handed over to I.O./Inspector/Incharge, Police Station, Gagret, Sh. Sunny Guleria. Spot map was prepared. Accused Maan Singh and Mahasu Ram ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 8 ( 2024:HHC:3935 ) were inquired. Thereafter, the matter was inquired from Bhupender Dutta, S/o Sukhdev Chand Dutta, who was running a chemist shop in Gagret. He was also .
associated in the investigation. During investigation, accused Mahasu Ram disclosed that the photo of goods receipt of the parcel was forwarded to him by Varinder Kumar @ Bindu (applicant), through whatsapp, and he was directed to receive the said parcel from Kamal Transport, Gagret, and hand over the same to Varinder Kumar at his home.
11.10. On inquiry, Bhupender Dutta disclosed that the parcel containing contraband belong to Varinder Kumar @ Bindu (applicant). However, the bill of the same was issued in the name of Dutta Medical Agency, Gagret. In lieu of the issuance of bill, Varinder Kumar @ Bindu (applicant) used to pay five boxes of Tramadol free of cost to him.
11.11. It is the further case of the Police that number of persons were found involved in the case. The applicant was arrested on 15.9.2023 at about 10:30 ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 9 ( 2024:HHC:3935 ) p.m. All the four persons have been medicolegally examined. On 16.9.2023, they were produced before the Court of learned Chief Judicial Magistrate, Una, .
who had remanded them to Police custody, for three days.
11.12. On 16.9.2023, one Vishal Jaswal informed the Police that one parcel in the name of Dutta Medical Agency has been received through Kamal Transport, upon which, Assistant Drugs Inspector Shashi r Pal reached at the spot, where owner of Kamal Goods, through Vishal Jaswal, has produced one parcel alongwith carbon copy of GR No. A59198, dated 14.9.2023, and one bill of Jan Priya Pharma 27/16, Chhoti Sabzi Mandi Janakpuri, New Delhi, to the police. Said bill was in the name of Dutta Medical Agency, Gagret. When, the said parcel was opened in the presence of witnesses, the same was found containing 25,000 tablets of Tramadol Hydrochloride tablets 100 mg Clovedol 100 SR, which is a prohibited drug. The above medicines were taken into possession.
::: Downloaded on - 25/06/2024 20:31:20 :::CIS 10( 2024:HHC:3935 ) 11.13. Thereafter, on 16.9.2023, house of the applicant was searched and during search, 210 boxes of liquor/beer were recovered. In this regard, FIR No. .
127 of 2023, dated 16.9.2023, under Section 39A of the HP Excise Act was registered.
11.14. During investigation, mobile phones of accused, bearing Nos. 9816042336, 8278733069, 8580581311, as well as, phone of accused Maan Singh, bearing No. 9816503646 and, of Bhupender Dutta, bearing No. 9816956481, were taken into possession.
11.15. During investigation, it was found that according to GR No. A59051, dated 12.9.2023, and GR No. A 59198, dated 14.9.2023, parcel received through Kamal Goods Carrier Delhi, in the name of Dutta Medical Agency, Gagret, were forwarded by Jan Priya Pharma 27/16 Chhoti Sabzi Mandi, Janakpuri, New Delhi. However, when, the I.O. verified the said fact, it was found that the said bills, were not issued by the said firm.
::: Downloaded on - 25/06/2024 20:31:20 :::CIS 11( 2024:HHC:3935 ) 11.16. On 20.9.2023, shop of Bhupender Dutta was searched. During search, documents, pertaining to GR No. 58021, dated 23.8.2023 and invoice No. 00325, .
dated 23.3.2023, were found to be issued by Jan Priya Pharma Company. However, as per these invoices, these medicines were not found in the medical store.
11.17. As per letter of the Director General of Police, Himachal Pradesh, dated 26.9.2023, investigation of the case was transferred to CID. Consequently, a Special Investigating Team, under the leadership of Praveen Dhiman, HPS, Additional S.P., Cyber Crime, was constituted. On 30.9.2023, the Special Investigation Team had taken over the investigation.
11.18. During investigation, it was found that recovered parcels, containing prohibited drugs were received at Jaswal Goods Carrier, Gagret, through Kamal Goods Carrier. It was also found that in the name of Dutta Medical Agency, other transports have also received consignment/parcels.
11.19. It was also found that Varinder Kumar ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 12 ( 2024:HHC:3935 ) (applicant) was earlier running Chemist shop, under the name and style of 'Siddhi Vinayak', and now, he is running the same, under the name and style of 'M.B. .
Pharma'. In this regard, delivery register and challan forms were also obtained. On the perusal of the same, it was found that through these transports, consignment/parcels, worth crores of rupees, were found, in the name of Sidhi Vinayak, M.B. Medicine and Dutta Medical Agency.
11.20. The contraband, so recovered, was sent to SFSL, Junga. Weight of the parcel was found to be 15.681 kg. The said drug was found to be sample of Tramadol capsules. In addition to this, the weight of the parcels, which has been marked as markB, containing Clovedol 100 SR, was found to be 8.450 kg.
Manufacturer of the same was found to be the Akums Drugs and Pharmaceuticals IIE SIDKUL Haridwar.
Consequently, company officials of Pure & Cure Healthcare Pvt. Ltd., Plot No. 26A, 2730 Sector 8A, IIE SIDKUL, Haridwar were associated in the investigation.
::: Downloaded on - 25/06/2024 20:31:20 :::CIS 13( 2024:HHC:3935 ) On inquiry, it was found that their company is the subsidiary of Akums Drugs & Pharmaceuticals Ltd.
Company. The factory of batch No. P06CA09 was not .
found to have manufactured Proxywel Spas medicine.
11.21. As per the further stand of the Police, from the recovered strips, eight digit number is found to be marked, which was 20130552. As per officials of the company, number 20130552 was the unique number of their company, being packing material Artwork Code number. The company used to get printed lay out from UTS Foils and Packaging and Perfect Print Pack.
Similarly, police has also got haul of Clovedol tablets.
However, batch number was found to be erased. The other 8 digit number 20161349 was found to be printed on it. About this number, the company officials disclosed that this number is packing material Artwork Code number. The company used to get the said design Artwork from Shree Ji Enterprises.
11.22. During investigation, the I.O. also found that the applicant has smuggled the psychotropic substance ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 14 ( 2024:HHC:3935 ) from Jan Priya Pharma through Kamal Goods Transport. These parcels were not sent by Jan Priya Pharma, Delhi, nor any invoice was found in their .
shop.
11.23. During investigation, it was found that on 14.9.2022, when the Police recovered the substance from vehicle No. HP 36B8124, Varinder Kumar (applicant) has forwarded GR No. 59051, dated 12.9.2023 and GR No. A 59198, dated 14.9.2023 to Mahasu Ram, on his phone, through whatsapp.
Applicant directed Mahasu Ram to receive parcel bearing GR No. 59051, dated 12.9.2023, and GR No. 59198, dated 14.9.2023. In the mobile handset, which was taken into possession from Mahasu Ram, photos of aforesaid GR Nos were found, whereas, in the mobile phone, of the applicant, photographs of aforesaid GR Nos. were not found. Both these handsets and GR Nos.
have been sent to RFSL, Dharamshala, for analysis.
11.24. During investigation, it was found that the handset on which, the applicant on 14.9.2023, had ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 15 ( 2024:HHC:3935 ) forwarded the photographs of aforesaid GR Nos. were having two sim cards, bearing No. 9816042336 and 8278733069. The IMEI number of these two slots were .
found to be 864372062985240 and 864372062985250, whereas, applicant on 15.9.2023, produced the phone make 'Oppo', bearing IMEI No. 866114046756195 and 866114046756187.
11.25. According to the police, variation in these numbers was due to the fact that he used to conceal mobile handset, used for transporting of drugs through Mahasu Ram and produce some other mobile phones to the Police. These facts have been highlighted to show that accused is very clever person and he may destroy the evidence. It was also found during investigation that mobile handset, with the help of which, the applicant has forwarded the whatsapp messages to Mahasu Ram, in that mobile handset, w.e.f. 15.9.2023 to 6.10.2023, mobile phone numbers 8627872324 and 7807786506 were found to be operating, whereas, according to customer application form, aforesaid ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 16 ( 2024:HHC:3935 ) mobile numbers were issued in the name of one Abhishek, s/o Ambika Prasad. Mobile Number 7807786506 was found in the name of Nisha Devi wife .
of Tilak Raj.
11.26. On 15.10.2023, search warrant of house and shop of applicant was obtained. During search, some objectionable documents were found and Indian currency of Rs. 4,42,700/ and foreign currency of Rs.
1,40,000/ was found. On inquiry, Meenakshi Sharma could not give satisfactory reply. However, she has produced empty box of Oppo, on which EMEI 864372062985252 and 864372062985245 were found to be printed. It has also been found that applicant, in the name of Dutta Medical Agency had transported the consignment worth crores of rupees from Jan Priya Pharma, between 2020 to 2023. These facts have been highlighted just to show that these are forged documents.
11.27. Apart from this, the Police has given the details of other cases, which are pending against the ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 17 ( 2024:HHC:3935 ) applicant:
i) FIR No.76/07, dated 19.4.2007, under Section 379 IPC, P.S. Model Town Hoshiarpur .
Punjab;
ii) FIR No. 50/2008, under Section 363, 366, 376 IPC, Police Station Sadar Hoshirapur, Punjab;
iii) FIR No. 54/2021, dated 27.3.2021, under Sections 304A, 20, 120B IPC, Police Station Gagret, District Una, H.P.
iv) FIR No. 114/2021, dated 20.7.2021, under Sections 195A, 323, 341, 504, 506 IPC, Police Station Gagret, District Una, H.P.; and
v) FIR No. 53/2023, dated 1.5.2023, under Section 436 IPC, P.S. Gagret, District Una, H.P. 11.28. It is the further case of the police that the applicant is an influential person and is counsellor of notified area Committee, Gagret and for the last so many years, he is dealing with the narcotic substances.
During investigation, he has changed his mobile hand set, knowing fully well that the same could be proved to be a valuable peace of evidence.
::: Downloaded on - 25/06/2024 20:31:20 :::CIS 18( 2024:HHC:3935 ) 11.29. Applicant is stated to be member of the interstate drug cartel, and in case, he is released on bail, he may coerce the witnesses to depose in his .
favour.
11.30. Apart from this, it has also been apprehended that in case the applicant is released on bail, he may flee from the country. It has also been apprehended that when, the applicant was arrested, during his personal search mobile phone make 'Oppo' was found, which was taken into possession by preparing a memo, but, the applicant has refused to sign the said memo.
11.31. Lastly, it has been apprehended that in case, the applicant is released on bail, he may affect the investigation of the case and also allure the witnesses.
In case, he is ordered to be released on bail, it will give a wrong signal to the society and he may again indulge in the similar activities.
12. On the basis of above facts, a prayer has been made to dismiss the application.
13. As per the status report, investigation, in the ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 19 ( 2024:HHC:3935 ) present case, is complete and the report under Section 173(2) Cr.PC, has been filed in the competent Court of law.
.
14. As per report of the Police, the contraband, so recovered, was sent for chemical analysis to SFSL, Junga, by putting the same into parcels. Parcel MarkA was found containing Proxywell Spas, and total weight of the same was found to be 15.651 kg, and as per the report of the Laboratory, the same was found to be the sample of Tramadol, whereas, parcel MarkB was containing tablets known as Clovedol 100 SR, and the total weight of the same was found to be 8.450 kg. As per the report of the laboratory, the same was also found to be the sample of Tramadol.
15. In view of the notification issued by the Ministry of Finance (Department of Revenue), dated 26.4.2018, the Tramadol has been entered at serial No.110 Y, in the list of psychotropic substances, which are specified in the schedule to the NDPS Act. The small quantity is stated to be 5 grams and commercial ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 20 ( 2024:HHC:3935 ) quantity is stated to be 250 grams. Meaning thereby, the contraband, which was allegedly recovered, in the present case, falls within the definition of 'commercial .
quantity'.
16. Once, it has been held that the contraband, so recovered, falls within the definition of 'commercial quantity', then, rigors of Section 37 of the NDPS Act are applicable, in the present case.
17. The Police has registered the case under Sections 20 and 29 of the NDPS Act, as such, there is no substance in the argument of learned senior Counsel, representing the applicant that nothing has been recovered from his possession. The provisions of Section 29 of the NDPS Act, are reproduced as under:
"Section 29:Punishment for abetment and criminal conspiracy (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 21 ( 2024:HHC:3935 ) Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a .
criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to r constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
18. The Hon'ble Apex Court in a recent decision, in case titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444, has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under:
::: Downloaded on - 25/06/2024 20:31:20 :::CIS 22( 2024:HHC:3935 ) "10. The provisions of Section 37 of the NDPS Act read as follows:
"[37. Offences to be cognizable and nonbailable.- (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 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 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 subsection (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 ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 23 ( 2024:HHC:3935 ) placed under clause (b) of subsection (1) of Section 37 are also to be factored in. The conditions imposed in subsection (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 of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira", (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus:
r "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 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 ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 24 ( 2024:HHC:3935 ) 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."
.
[emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" (2020) 12 SCC 122 and this Court has observed as below:
"20. 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. 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." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of SubSection (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 25 ( 2024:HHC:3935 ) case that can persuade the Court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is .
unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable r grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."
19. So far as the arguments of learned counsel appearing for the applicant, qua delay in lodging the FIR, is concerned, at this stage, no adverse inference can be drawn from this fact, as, the prosecution has every right to explain the reasons for not lodging the FIR promptly, during the course of trial.
20. In this case, on the basis of the secret information, received by the Investigating Officer, ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 26 ( 2024:HHC:3935 ) regarding the indulgence of the applicant, in the sale of narcotic substance, the compliance of Section 42(2) of the NDPS Act has duly been prepared and submited .
to SDPO Amb through LHC Aruna Kumari, ANTF, Kangra, as such, no benefit can be derived by the applicant from this fact.
21. So far as the argument of the learned counsel appearing for the applicant, qua the fact that no contraband has been recovered from the possession of the applicant, is concerned, the Hon'ble Supreme Court in a recent decision, in case, titled as Union of India through Narcotics Control Bureau, Lucknow versus Md. Nawaz Khan, reported in (2021) 10 Supreme Court Cases 100, has elaborately discussed the term 'conscious possession'. The relevant paras 25 and 26 of the judgment, are reproduced, as under:
"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, 27A, 29, 60(3) of the said Act. Section 8 of the Act ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 27 ( 2024:HHC:3935 ) 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 1923 & 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.
20. 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 ie.
conscious possession and not mere custody without awareness of the ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 28 ( 2024:HHC:3935 ) 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. was as observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (Supt. & Remembrancer of Legal Affairs, W.B. u. 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.
xxx xxx xxx
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 ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 29 ( 2024:HHC:3935 ) 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 (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 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."
22. Admittedly, the applicant has not solely been arrested on the basis of statement of Bhupender Dutta, but, it was found in the investigation that on 14.9.2023, when, contraband was recovered from ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 30 ( 2024:HHC:3935 ) vehicle No.HP36B8124, then, accused Varinder Kumar @ Bindu (applicant) has forwarded the photocopies of GR No.A59051, dated 12.9.2023 and .
GR No.A 59198, dated 14.9.2023, through whatsapp to Mahasu Ram.
23. Not only this, according to the case of the Police, on 14.9.2023, on the basis of search warrants, house of the applicant was searched from where, a box of mobile phone make 'Oppo' was recovered, upon which, IMEI 864372062985252 and 864372062985245 were found to be printed. The wife of the applicant could not give satisfactory explanation regarding the phone, which was in the said box.
According to the Police, the said phone was the same, from which, on 14.9.2023, the applicant has forwarded the copies of GR No.A 59051 and GR No.A 59198, to accused Mahasu Ram. The moblie phone of Mahasu Ram, make 'Redmi' has been sent to CFSL, Chandigarh for data retrievation.
24. It has come on record that the competent ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 31 ( 2024:HHC:3935 ) authority and Administrator SAFEM (FOP) Act and NDPS Act, has freezed 42 immovable properties of the applicant, valuation of the same has been made, as .
Rs.5,90,00,000/. Apart from this, five vehicles, which, according to the Police, were purchased illegally, were also taken into possession and value of the same is Rs.50,70,000/.
25. Not only this, 16 bank accounts of the applicant, were also freezed, in which, total amount of Rs.3,72,04,644/ was found.
26. Considering all these facts, the apprehensions, which have been expressed, by the Police, in the status report, and mentioned above, cannot be said to be unfounded, at this stage.
27. The cumulative effect of the above discussion is that the applicant is not able to make out a case to meet out the ingredients of Section 37(2) of the NDPS Act as it is not possible for this Court to come to the conclusion that the accused has not committed the offence nor according to the facts and circumstances ::: Downloaded on - 25/06/2024 20:31:20 :::CIS 32 ( 2024:HHC:3935 ) of the present case, it can be said that in case, he is released on bail, he may not commit any offence.
29. Considering the observations and discussions, .
made above, this Court is of the view that the applicant is not entitled to relief of bail, at this stage.
As such, the present application is dismissed.
30. Any of the observations, made hereinabove, 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 June 25, 2024 (ps) ::: Downloaded on - 25/06/2024 20:31:20 :::CIS