Himachal Pradesh High Court
Naresh Kumar vs State Of Himachal Pradesh on 12 June, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 712 of 2017
Decided on June 12, 2017
_________________________________________________________________
.
Naresh Kumar ... Petitioner
Versus
State of Himachal Pradesh Respondent
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. H.S. Rana, Advocate.
For the respondent : Mr. P.M. Negi and Mr. M.L.
Chauhan, Additional Advocates
General.
Inspector Hari Singh i/c SIU Baddi,
r District Solan.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Section 439 CrPC, prayer has been made for grant of regular bail in favour of the petitioner, in case FIR No. 55/16 dated 15.3.2016 under Sections 20 and 21 of Narcotic Drugs & Psychotropic Substances Act (hereinafter, 'Act') registered with Police Station, Nalagarh, District Solan, HP.
2. Sequel to order dated 29.5.2017, Inspector Hari Singh has come present alongwith record/status report. Same is perused.
3. Perusal of status report placed on record by the police suggests that on 15.3.2016, petitioner was nabbed while carrying 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 2220 grams of Charas and 8 pouches containing 800 tablets of Microlit. Accordingly, FIR as referred to above, came to be registered against the petitioner under aforesaid provisions of the .
Act. It also emerges from the record that since 15.3.2016, petitioner is in judicial custody. Petitioner has also placed on record report of FSL Junga, relevant portion, whereof is reproduced as under:
"Results of the examination Various scientific tests such as physical identification, chemical and chromatographic analyses were carried out in the laboratory with the exhibit stated as charas . after homogenization. The above tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol in the exhibit. Charas is a resinous mass, which on testing was found present in the exhibit. The quantity of purified resin as found in the exhibit stated as charas is 19.76% w/w. The result thus obtained is given below. The exhibit is extract of cannabis and sample of CHARAS MICROLIT Various scientific tests such as physical identification, chemical, chromatographic, UV spectrophotometric as well as quantitative analysis were carried out in the laboratory with the exhibit stated as Microlit under reference. The above tests performed, indicated the presence of Diphenoxylate hydrochloride in this. On its quantitative analysis, Diphenoxylate hydrochloride was found to be 2.52 mg per tablet. The result obtained is given below.
The exhibit stated as Microlit is a sample of Diphenoxylate hydrochloride tablets."
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, ::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 3 Challan against petitioner under Sections 20 and 21 of the Act stands filed in the competent court of law on 25.7.2016 and petitioner is in judicial custody since 18.3.2016.
.
5. Mr. H.S. Rana, learned counsel representing the petitioner, while inviting attention of this Court to report submitted by SFSL Junga, contended that the psychotropic substance i.e. Charas is of 'small quantity'. Mr. Rana further contended that as per report of FSL, prohibited drug namely Diphenoxylate hydrochloride has been found to be 2.52 mg per tablet, meaning thereby, quantity, if taken into consideration of recovered 800 tablets 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 tablets is required to be taken into consideration while determining quantity of prohibited drug i.e. Diphenoxylate hydrochloride and not the whole of the mixture contained in tablets namely Microlit. Mr. Rana further contended that petitioner is in custody since 15/18.3.2016 and more than one year has 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. Rana 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 ::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 4 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. P.M. Negi, Additional Advocate General, while inviting attention of this Court to status report, as referred above, opposed the prayer having been made by the learned counsel representing the petitioner, for grant of bail. Mr. Negi, strenuously argued that the contraband/ 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. Negi, 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. Negi contended that if report of SFSL is read in its entirety, it has been clearly concluded that "exhibit stated as Microlit is a sample of Diphenoxylate hydrochloride tablets", 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 Diphenoxylate hydrochloride has been found to be ::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 5 2.52 mg per tablet, meaning thereby, quantity of prohibited drug, if taken into consideration qua 800 tablets allegedly recovered from the petitioner, comes out to be less than 'small quantity'.
.
SFSL, while concluding that 2.52 mg Diphenoxylate hydrochloride is found per tablet, has nowhere rendered any opinion with regard to remaining contents/mixture of tablets, namely Microlit, hence, inference can be drawn that 'small quantity' of Diphenoxylate hydrochloride is present in recovered tablets. Though, aforesaid 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 case is complete and matter is pending before trial Court since 25.7.2016 i.e. approximately for a year, as such, this Court is of the view that custodial interrogation of the petitioner is not required at this stage. Moreover, this Court can not lose sight of the fact that petitioner is in custody for one year and as such deserves 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 ::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 6 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 Solan 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 the following principles to be kept in mind, while deciding petition for bail: r
(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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) 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 `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;::: Downloaded on - 14/06/2017 23:59:40 :::HCHP 7
(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/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 June 12, 2017 (vikrant) ::: Downloaded on - 14/06/2017 23:59:40 :::HCHP