Himachal Pradesh High Court
Vikas Guleria vs State Of Himachal Pradesh on 11 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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Cr.MP(M) No. 1630 of 2019
Date of Decision : September 11, 2019
Vikas Guleria ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Devender K. Sharma, Advocate.
For the respondent : Mr. Nand Lal Thakur, Additional Advocate
General for the State.
Anoop Chitkara, Judge (oral)
For possessing 3.28 grams of heroin, the petitioner, who is under arrest, on being arraigned as an accused in FIR Number 209/2019, dated 24.07.2019, registered under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (herein after referred as the "NDPS Act"), in the file of Police Station Balh, Distt. Mandi, H.P., disclosing non-bailable offences, has come up before this Court under Section 439 Cr.PC, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 22. The status report 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 the same stands returned to the police official. I have heard Sh. Devender K. Sharma, learned counsel for the petitioner and Mr. Nand Lal Thakur, learned Additional Advocate General for the respondent/State.
FACTS
3. The gist of the First Information Report and the investigation is as follows:
That on 24th July, 2019, a police party headed by ASI/SHO of Special Investigating Unit, Mandi, Police Station Balh, Distt. Mandi, H.P. was on patrolling duty at a place known as Jol Naala (Arthi). At about 11.00 a.m., when they reached at a point where there was a bifurcation on the road leading to village Haveli, then on the side of the road, one car (Honda Brio) bearing registration No. HP33C 3758, was parked. Three persons were sitting inside the vehicle of whom one was on the driver seat and the other two were on the rear seat. The police officials found those people as suspicious and thus stopped their vehicle and proceeded towards the said car. When the ASI reached near the vehicle then the persons sitting inside the car became perplexed and the person sitting ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 3 on the rear seat stated with authority not to disturb them as they had nothing. On this the ASI inquired about their names.
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The person on the driver seat named himself Kartik Guleria who is the petitioner herein. The other two persons disclosed their names as Rakesh Kumar alias Vakil and Vikas Guleria alias Vikku. The ASI inquired from them why they were so perplexed and on this the persons started speaking in high tone which created suspicion in the mind of the ASI about some contraband in the car. On this, one Constable Chirag who was member of the police party, was asked to bring some independent witnesses and a phone call was made to Police Station Balh to send some police officials to the spot. At 12 O'Clock noon Constable Chirag brought two persons at the spot for the purpose of associating them as witnesses.
Thereafter, after conducting some procedural formalities, when the aforesaid car was checked, then in the console, near the gear box, one transparent polythene pouch was recovered. In this polythene packet, a brown coloured substance was noticed and it had also two aluminum foil wrappers. Also inside the aluminum rappers there was some brown substance. When the police party checked the little quantity of the substance and tested the same with the drug ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 4 detection kit, which was carried by them, it tested positive for heroin. The substance was weighed and found to be 3.28 .
grams. On the personal search of co-accused Rakesh Kumar, from the pocket of his jeans, one box was recovered which he was trying to throw away. This box was in the shape of a power bank with brand name Ambrane. On opening the said power bank 40 grams of heroin was recovered. Thereafter, the other procedural formalities were completed and the aforesaid F.I.R. came to be registered.
REASONING
4. Keeping in view the quantity of contraband, I am of the considered view that the judicial custody of the petitioner is not going to serve any purpose whatsoever and I am inclined to grant him bail on the following grounds:
(a) As per the FIR, the substance involved in 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 drugs involved is 43.28 grams (heroin), which 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. Resultantly, the present case ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 5 has to be treated like any other case of grant of bail in a penal offence.
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(c) During investigation, the police noticed that the bail petitioner had received this contraband for the purpose of self consumption. As far as the recovery of 40 grams heroin is concerned, it is against accused Rakesh Kumar alias Vakil and it was found from his pocket. Therefore, at this stage, the petitioner cannot be said to be aware of the contraband that was was in the pocket of the jeans of someone else. The present bail petition is not by Rakesh Kumar alias Vakil and this fact would acquire significance only when his bail is considered, in case such an occasion arises. For the purpose of bail to the present petitioner, 40 grams heroin is not to be considered as it was not recovered from him.
(d) The petitioner is in judicial custody since 25.07.2019.
(e) The investigation is complete.
(f) As per the Status report, three other cases are pending against the petitioner, under the provisions of Indian Penal Code. The quantity of contraband involved is 3.28 and 40 grams of Heroin (Chitta), which was recovered from co-
accused Rakesh Kumar. However, no recovery was effected from the personal search of present petitioner.
::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 6(g) The petitioner is a permanent resident of the address mentioned in the memo of parties. Therefore, his presence .
can always be secured.
(h) I am satisfied that no purpose will be served if the bail petitioner is sent to judicial custody.
(i) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. His custodial interrogation is not required at all.
5. 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 one surety in the like amount, to the satisfaction of the learned Special Judge/Sessions Judge or learned Additional Sessions Judge, Mandi, H.P.
6. This Court is granting the bail subject to the conditions mentioned herein. 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 is directed to join the investigation as and when called by the investigating office and the petitioner undertakes to appear before the investigating officer as and when directed to do so.
However, whenever the investigation takes place ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 7 within the boundaries of the Police Station or the Police Post, then the accused shall not be called .
before 9 a.m. and shall be let off before 5 p.m.
b) The petitioner shall co-operate in the investigation.
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 shall neither influence nor try to control the investigating officer, in any manner whatsoever.
f) 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.
g) In case of the launching of the prosecution, the petitioner undertakes to attend the trial and to appear before the Court which issues the summons or warrants and shall furnish fresh bail bonds to the satisfaction of such Court.
h) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of more than three 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 ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP 8 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, for cancellation of this bail, if it deems fit and proper.
7. 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.
8. 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.
Petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara), Judge.
September 11, 2019 (KS) ::: Downloaded on - 29/09/2019 04:14:33 :::HCHP