Himachal Pradesh High Court
Lal Singh vs State Of Himachal Pradesh on 19 December, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1474 of 2017
Decided on: 19.12.2017
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Lal Singh ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Vinod Thakur, Advocate.
For the Respondent : Mr. M.L. Chauhan and Mr. P.M. Negi,
Additional Advocate Generals.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Lal Singh, who is in judicial custody since 22.5.2017, has approached this Court for grant of regular bail in case FIR No. 103/17 dated 22.5.2017, under Section 21-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (In short the "NDPS Act") and Section 18 of Drugs and Cosmetics Act, registered at P.S. Nalagarh, District Solan, H.P.
2. Sequel to order dated 11.12.2017, ASI Yograj, P.S. Nalagarh, District Solan, H.P., has come present alongwith records. Record perused and returned. Mr. M.L. Chauhan, learned Additional Advocate General, has also placed on record status report, which has been prepared on the basis of record of investigating agency, perusal whereof suggests that 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 2police patrolling party intercepted a Tavera Vehicle bearing No. PB-23F-
0090 at Kalyanpur coming from Nalagarh side. Bail petitioner, who at that .
relevant time was driving the vehicle, on the askance of the police party, produced his driving licence as well as documents pertaining to the vehicle. Police on checking the vehicle, recovered 8 cartons, out of which, five cartons were containing 100 bottles each of syrup namely Elturex-T cough Syrup 100 ml, whereas other three cartons contained 100 strips each of capsules namely Tramadex and gelatin containing tramadol hydrochloride IP 50 mg Batch No GTXC-002, manufactured in India by laborate Pharmaceuticals India Unit-2#31 Rajban Road, Nariwala Paonta Sahib, H.P. Since occupants of the vehicle including present bail petitioner, who at that relevant time was driving the vehicle, were unable to produce valid papers with regard to the transportation/possession of aforesaid psychotropic substance, police confiscated the contraband and after completion of codal formalities, lodged formal FIR against the accused and since then, both the accused including bail petitioner are in custody.
3. Mr. Vinod Thakur, Advocate, representing the petitioner while referring to the record/status report vehemently argued that there is nothing on record suggestive of the fact that bail petitioner had any ::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 3 connection with the drugs/psychotropic substance, allegedly recovered from the vehicle being driven by him. Mr. Thakur, further contended that .
vehicle belonged to person namely Ranbir Singh, who had actually hired him as a driver in the vehicle in question and for the last 25 years, he had been driving the vehicle as a Taxi. Mr. Thakur further contended that as per record, contraband/drugs allegedly recovered from the vehicle being driven by the bail petitioner, was purchased from NMD Pharmaceuticals, Chandigarh, whose worker namely Ashok Kumar, verified retail invoice dated 19.5.2017 and categorically stated before police that 500 bottles of syrup namely Elturex-T cough Syrup Batch No. SD/17005, and 30,000 capsules tramadex batch No. GTXC-002 were purchased by the co-accused namely Surender Singh on the strength of licence No. 20B-11-126, 21B-110127 and as such, it stands duly proved on record that the bail petitioner had no connection, if any, with the drugs allegedly recovered from the vehicle being driven by him. Mr. Thakur, further contended that bail petitioner is fifty years' old man and there is nothing on record suggestive of the fact that he was ever found involved in such cases in the past and as such, he being an innocent person deserves to be enlarged on bail.
4. Mr. M.L. Chauhan, learned Additional Advocate General, while opposing the aforesaid prayer having been made by the learned ::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 4 counsel for the petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve .
to be enlarged on bail. Though, Mr. Chauhan, fairly conceded that during investigation, it has come that drugs/psychotropic substance was purchased from JMD Pharmaceuticals by the co-accused on the strength of his licence, which was not meant for purchase of prohibited drugs i.e. Codiene, Dextropropoxyphene, Diphenoxylate, Nitrazepam, Pentazocine and Buprinorphine and theirsalts, rather same was for purchase and sale of surgical and medical devices, veterinary, OTC medicines and Lab Reagents. Mr. Chauhan, further contended that it stands duly proved on record, rather it is an admitted fact that prohibited drugs/contraband was recovered from the vehicle being driven by the bail petitioner and as such, it cannot be ruled out that he was also involved in the illegal trade of prohibited drugs with co-accused namely Surender Singh and as such, he does not deserve to be shown any leniency. Lastly, Mr. Chauhan contended that since bail petitioner belongs to other State, it may be difficult to secure his presence during trial and in the event of his being enlarged on bail, there is every likely hood of his fleeing from justice.
5. I have heard learned counsel for the parties as well as carefully gone through the records.
::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 56. Perusal of record/status report clearly suggests that drugs/psychotropic substance was purchased by co-accused namely .
Surender Sigh from JMD Pharmaceuticals Chandigarh, against retail invoice No.000647 dated 19.5.2017, on the basis of his licence No. 20-B 110126,21B-11-127, meaning thereby, prohibited drug namely "Codeine Phosphate" as allegedly recovered from five cartons, was actually purchased by Surender Singh co-accused and there is nothing on record to connect the bail petitioner with the alleged purchase made by the co-
accused Surender Singh.
r Though record suggests that purchase of contraband was made against licence possessed by the co-accused Surender, which as per investigation, was not valid to purchase the prohibited drugs namely "Codeine Phosphate" but there is nothing on record, from where it can be inferred that action, if any, is/was initiated by the investigating agency against the pharmaceutical company, who sold the prohibited drugs to the co-accused Surender Singh against retail invoice dated 19.5.2017, on the strength of licence, which was only valid for the purchase of medical and surgical devices.
7. This Court after having carefully perused the record sees substantial force in the argument of Sh. Vinod Thakur, Advocate, representing the petitioner that at this stage, there is nothing on record to connect the bail petitioner with the alleged purchase of prohibited drugs ::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 6 and as such, he deserves to be enlarged on bail. Though, aforesaid aspect of the matter is to be considered and decided by the court below .
on the basis of material adduced on record by the prosecution but at present, there is no convincing, cogent and sufficient evidence to infer involvement, if any of the petitioner in the illegal purchase of drugs made by the co-accused namely Surender Singh. Otherwise also, if report submitted by the FSL Junga, is perused and considered, it clearly suggests that save and except 500 bottles of Elturex-T Cough Syrup, other drugs namely tramadex capsules were not found to be psychotropic substance as defined under the NDPS Act. Report submitted by FSL further suggests that 196.5 mg, "codeine phosphate" was found in one bottle of 100ml, meaning thereby, if aforesaid quantity is taken into consideration qua 500 bottles recovered from the vehicle being driven by the petitioner accused, total quantity comes out to be less than small quantity i.e. 9.56 mg and as such, rigors of Section 37 of NDPS Act, are not attracted.
8. Accordingly, this Court after having carefully perused report/record, submitted by the FSL Junga, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, especially, when he has already suffered for more than six months. Guilt, if any, of the petitioner is yet to be proved in accordance with law and as such, his ::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 7 freedom cannot be ordered to curtailed for an indefinite period during the pendency of the trial.
.
9. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.
Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
10. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
" The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose ::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 8 sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse .
bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
11. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried ad found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
12. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 9
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
.
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
13. In view of the aforesaid discussion, petitioner has carved out a case for grant of bail. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 103/17 dated 22.5.2017, under Section 21-61-85 of the NDPS Act, and Section 18 of Drugs and Cosmetics Act, registered at P.S. Nalagarh, District Solan, H.P. on his furnishing personal bonds in the sum of Rs.1,00,000/- with one local surety in the like amount to the satisfaction of learned trial Court with following conditions:
a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court.
14. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.::: Downloaded on - 22/12/2017 23:03:16 :::HCHP 10
15. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to .
the disposal of this application alone.
The bail petition stands disposed of accordingly.
Copy dasti.
19th December,2017 (Sandeep Sharma),
Judge
manjit
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