Himachal Pradesh High Court
Vinod Kumar vs State Of Himachal Pradesh on 25 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 748 of 2017
Date of Decision No.25.07.2017
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Vinod Kumar ........ 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 petitioners: Mr. Kulbhushan Khajuria, Advocate.
For the respondent: Mr. M.L. Chauhan, Additional Advocates
General.
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Sandeep Sharma, Judge (oral):
By way of instant petition filed under Section 439 Cr.P.C, prayer has been made for grant of bail in FIR No. 101 of 2016, dated 30.09.2016 under Sections 22 of the Narcotic Drugs & Psychotropic Substances Act ( for short "Act") registered at Police Station, Rohru, District Shimla, Himachal Pradesh.
2. Sequel to orders dated 15.6.2017 and 24.7.2017, ASI Bhagirath Sharma, Police Station, Rohru, District Shimla, has come present in Court alongwith the record. Record perused and returned.
3. Perusal of the aforesaid status report/reply reveals that on 30.09.2016 police apprehended bail petitioner carrying 19 bottles of 100 ML each of Corex. Since bail petitioner failed to 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 2produce any permit to keep aforesaid bottles, FIR as mentioned above, came to be registered against him under Section 22-61-85 of the Act. It also emerge from the record that since 3.10.2016, .
bail petitioner is in judicial custody. Respondent-State has also made available report of FSL Junga, relevant portion, whereof is reproduced as under:-
"Results of the examination Various scientific tests such as physical identification, chemical tests, Chromatographic as well as quantitative analyses were carried out in the laboratory with the exhibit stated as Corex under reference with representative & homogeneous sample. The above tests performed indicated the presence of codeine phosphate in the sample of Corex. On its quantitative analysis codeine phosphate was found to be 2.006mg/ml in 100ml bottle of Corex. The result thus obtained is given below:
Codeine Phosphate is present in the exhibit stated as Corex.
4. It may be noticed that aforesaid report submitted by SFSL Junga has not been disputed by the police in its status report, rather, same has been acknowledged. As per status report, Challan against petitioner under Sections 22-61-85 of the Act, stands filed in the competent court of law on 17.1.2017 and petitioner is in judicial custody since 3.10.2016.
5. Mr. Kulbhushan Khajuria, learned counsel representing the petitioner, while inviting attention of this Court to report submitted by SFSL Junga, contended that the psychotropic substance i.e. Codeine Phosphate is of 'small quantity'. Mr. Khajuria, further contended that as per report of FSL, prohibited ::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 3 drug namely Codeine Phosphate has been found to be 2.006 mg/ml in 100 ml bottle of Corex, meaning thereby, quantity, if taken into consideration qua all the recovered 19 bottles of Corex, .
comes to less than 'small quantity' and as such petitioner is entitled to be released on bail. Learned counsel further contended that only psychotropic substance contained in the bottle is required to be taken into consideration while determining quantity of prohibited drug i.e. Codeine Phosphate and not the whole of the mixture contained in bottle. Mr. Khajuria further contended that petitioner is in custody since 3.10.2016 and more than eight months have passed and in case, it is presumed that petitioner has violated Sections 20 and 21 of the Act, even in that eventuality one year imprisonment is provided for contraband of 'small quantity'. While concluding his arguments, Mr. Khajuria also invited attention of this Court to judgment passed by a coordinate bench of this Court in CrMP(M) No. 432 of 2017 titled Ankush Chauhan versus State of H.P., decided on 25..4.2017 as well as in CrMP(M) No. 817 of 2016 titled Prashant Chauhan versus State of H.P. decided on 15.7.2016.
6. Mr. M.L.Chauhan, learned Additional Advocate General, while inviting attention of this Court to status report, as referred above, opposed the aforesaid prayer having been made by the learned counsel representing the petitioner, for grant of bail.
Mr. Chauhan, strenuously argued that the contraband/ ::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 4 psychotropic substance recovered from bail petitioner falls within 'commercial quantity' and as such no leniency can be shown while considering petitioner's prayer for grant of bail. Mr. Chauhan, .
further stated that as per settled law, entire material contained in the recovered contraband is required to be taken into consideration, while determining quantity of psychotropic substance. While inviting attention of this Court to the report of SFSL, Mr. Chauhan, contended that if report of SFSL is read in its entirety, it has been clearly concluded that "exhibit stated as Corex is a sample of "Codeine Phosphate", as such, by no stretch of imagination, it can be contended that contraband /psychotropic substance recovered from the petitioner is of 'small quantity'.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. In the instant case, as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 2.006 mg/ml in 100 ml bottle, meaning thereby, quantity of prohibited drug, if taken into consideration qua 19 bottles allegedly recovered from the petitioner, comes out to be less than 'small quantity'.
SFSL, while concluding that 2.006 mg/ml Codeine Phosphate is found in 100 ml bottle, has nowhere rendered any opinion with regard to remaining contents/mixture of Codeine Phosphate, hence, inference can be drawn that 'small quantity' of Codeine Phosphate is present in recovered bottles. Though, aforesaid ::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 5 aspect of the matter is to be considered and examined in detail by trial Court during the course of trial, but, after having carefully perused opinion rendered by SFSL, as well as judgments rendered .
by the Hon'ble Full Bench in Mehboob Khan's case (supra), which has been further followed by a coordinate Bench of this Court in Ankush Chauhan's case and Prashant Chauhan's case (supra), this Court is of the view that rigors of Section 37 of the Act are not attracted in the case at hand.
9. Indisputably, investigation in the present case is complete and challan stands filed before the competent Court of law on 17.1.2017. This Court cannot lose sight of the fact that petitioner is in custody since 3.10.2016 and approximately eight months have passed and as such he is entitled to be released on bail. Otherwise also, normal rule is of bail and not jail. Apart from above, 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.
Petitioner is local resident of District Shimla and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him.
10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down ::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 6 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;
(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;
(viii) reasonable apprehension of the witnesses being influenced; and
(ix) danger, of course, of justice being thwarted by grant of bail.
11. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs.1.00 Lakh with one surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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;::: Downloaded on - 27/07/2017 23:57:34 :::HCHP 7
(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/her 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.
12. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
13. 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 petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma), Judge.
25th July 2017 (shankar) ::: Downloaded on - 27/07/2017 23:57:34 :::HCHP