Himachal Pradesh High Court
Ankush Sharma vs State Of Himachal Pradesh on 24 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 119 of 2020 .
Reserved on : January 23, 2020
Date of Decision : January 24 , 2020
Ankush Sharma ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Rajesh Mandhotra, Advocate, for the petitioner.
For the respondent : Mr. Narender Guleria, Addl.AG, Mr. Bhupinder Thakur, Dy.AG and Mr. Rajat Chauhan, Law Officer, for the respondent/State.
Anoop Chitkara, Vacation Judge.
For possessing 5.49 grams of heroin, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 106 of 2019, dated Sep 4, 2019, registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in the file of Police Station Damtal, Distt. Kangra, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 22. Status report stands filed. I have seen the status report(s) as well as the Police file, to the extent it was necessary for deciding the present .
petition, and heard learned Counsel for the parties.
3. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before Special Judge-II, Kangra at Dharamshala, HP. However, vide order dated 18.10.2019, the Court dismissed the petition.
FACTS
4.
r to The gist of the First Information Report and the investigation is that on Sep 04, 2019, police party was on patrolling duty within the jurisdiction of its Police Station, Damtal. At around 6.30 p.m., when the police party had reached near Pir Baba Temple on Bhadroa Chowk to Kandwal Road they saw a person coming from the Bhadroa Toll Tax Barrier towards Bhadroa Chowk on foot. The said person on noticing the vehicle of the police party turned back and started walking at a fast pace towards the Tax Barrier side and while doing so he threw some article from the pocket of his pant towards the side of the road. It raised suspicion and then the police party apprehended the accused and inquired about his identity in the presence of independent witnesses, who told his name as Ankush Sharma, the petitioner herein. The article thrown by him was got picked up from him and on checking the substance so contained in the polythene packet, police prima facie found it to be Heroin and on further checking the same from the Drug Detection kit it tested positive for the ::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 3 same. After that the recovered substance was weighed on electric scale and was found to be 5.49 grams. During investigation the accused .
disclosed that he had purchased the recovered heroin from one Darbari Lal resident of Bhadroa. Subsequently, the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the accused.
PREVIOUS CRIMINAL HISTORY
5. The following cases are pending against the bail petitioner:
(i) FIR No. 134 of 2019, dated 4.8.2019, under Sections 21, 25 and 29 of the NDPS Act, Police Station, Chuwadi, Distt. Chamba.
ANALYSIS AND REASONING:
6. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
7. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also ::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 4 mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum .
sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
8. Although the substance recovered from the petitioner is just 5.49 grams and close to small quantity but keeping in view the criminal history the petitioner is taking undue advantage of the protection already granted to him. However, this Court is inclined to afford last opportunity to the Petitioner, making it very clear that in case, the petitioner repeats the offence, then this bail is liable to be cancelled.
9. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
a) As per the FIR, the substance involved is heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances.
b) The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case.::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 5
Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.
.
c) The petitioner is in judicial custody since Sep 04, 2019.
d) The investigation in the case is complete and the report under section 173(2) CrPC stands filed.
e) The petitioner is a permanent resident of address mentioned in the memo of parties, therefore, his presence can always be
10. secured.
r to In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs.10,000/- with two sureties in the like amount to the satisfaction of the Trial Court or the Court exercising jurisdiction over the concerned Police Station where FIR is registered.
11. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.
12. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.
::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 613. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all .
such conditions:
a) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.
b) The petitioner undertakes to attend the trial.
c) The petitioner shall not hamper the investigation.
d) The petitioner undertakes not to contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics.
e) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
f) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever.
g) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of more than seven years and in case the bail petitioner is arraigned as an accused in any case, under the provisions of the NDPS Act, irrespective of the quantity, be it a small quantity, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court or to the Trial Court for cancellation of this bail, if it deems fit and proper.
It is made clear that in such case the Court who would be ::: Downloaded on - 24/01/2020 20:26:43 :::HCHP 7 considering such bail application(s) shall taken into account that despite warning the accused has repeated the offence.
h) Within 30 days from today, the petitioner shall sell, or .
surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
14. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other
15.
r to difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s).
It is clarified that the present bail order is only with respect to the above-mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the Petitioner.
16. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case, and the trial Court shall decide the matter uninfluenced by any observation made herein above.
17. The petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara), Vacation Judge.
January 24 , 2020 (PK) ::: Downloaded on - 24/01/2020 20:26:43 :::HCHP