Himachal Pradesh High Court
Surinder Singh vs State Of Himachal Pradesh on 27 December, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1502 of 2017
Decided on: 27.12.2017
.
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Surinder 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. H.S.Rana, Advocate.
For the Respondent : Mr. Vikram Thakur, Deputy Advocate
General.
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Sandeep Sharma, Judge (oral):
By way of instant bail petition filed under Section 439 of Cr.PC, a prayer has been made on behalf of the applicant/bail petitioner 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 15.12.2017, ASI Yograj, P.S. Nalagarh, District Solan, H.P., has come present alongwith records. Record perused and returned. Mr. Vikram Thakur, learned Deputy 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 - 28/12/2017 23:26:28 :::HCHP 2police patrolling party intercepted a Tavera Vehicle bearing No. PB-23F-
0090 at Kalyanpur. 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 were unable to produce valid papers with regard to the transportation/possession of aforesaid psychotropic substance, police confiscated the contraband and after completion of necessary codal formalities, lodged formal FIR against the accused and since then, the bail petitioner is in custody.
3. Mr. H.S. Rana, Advocate, representing the petitioner while inviting attention of this court to the record/status report strenuously contended that drugs allegedly recovered from the vehicle were purchased by the bail petitioner against his valid licence and there is nothing on record suggestive of the fact that bail petitioner indulged in the illegal sale of drugs, rather same were purchased from the authorized pharmaceutical company for selling the same in the shop being run at Kurali, Tehsil and District Ropar, Punjab, by the present bail petitioner. Mr. ::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 3 Rana further contended that other co-accused namely Lal Singh already stands released on bail and as such, present bail petitioner also deserves .
to be enlarged on bail. Lastly, Mr. Rana contended that quantity of contraband allegedly recovered from the bail petitioner is not of commercial quantity and as such, rigors of Section 37 of the NDPS, Act are not attracted. Mr. Rana further contended that challan stands filed in the competent court of law and nothing is required to be recovered from the bail petitioner at this stage. There is nothing on record adduced by the Investigating Agency, from where, it can be inferred that in the event of bail petitioner's being enlarged on bail, he may flee from the justice.
4. Mr. Vikram Thakur, learned Deputy Advocate General, while opposing the aforesaid prayer having been made by the learned 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. Thakur, fairly conceded that during investigation, it has come that drugs/psychotropic substance was purchased from JMD Pharmaceuticals by the bail petitioner on the strength of his licence, but contended that same 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, ::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 4 veterinary, OTC medicines and Lab Reagents. Lastly, Mr. Thakur, contended that since prohibited drugs/contraband was recovered from .
the vehicle occupied by the bail petitioner and as such, possibility of his involvement in the alleged crime i.e. illegal trade of prohibited drugs, with other co-accused cannot be ruled out and as such, he does not deserve to be shown any leniency. Mr. Thakur, further 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.
6. It is not in dispute that other co-accused namely Lal Singh stands released on bail pursuant to order dated 19.12.2017 passed by this Court in Cr.MP(M) N. 1474 of 2017. It is also quite apparent from the record that the bail petitioner purchased the prohibited drugs/psychotropic substance 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, and as such, at this stage, it cannot be inferred that prohibited drug namely "Codeine Phosphate" was actually purchased by the bail petitioner for illicit trade of it, rather same was purchased against the retail invoice issued by the JMD, Chandigarh.
::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 5Though record suggests that purchase of contraband was made against licence possessed by the bail petitioner, which as per investigation, was .
not valid to purchase the prohibited drugs namely "Codeine Phosphate"
but there is nothing on record suggestive of the fact that action, if any, is/was initiated by the investigating agency against the pharmaceutical company, who sold the prohibited drugs to the bail petitioner 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. After having carefully perused the material adduced on record by the Investigating Agency, this Court sees substantial force in the argument of Mr. Rana, learned counsel representing the petitioner that at this stage, there is nothing on record to infer that the bail petitioner purchased prohibited drugs i.e. "codeine phosphate" for illegal trade of the same, rather record itself suggests that same was purchased on the basis of licence issued in favour of the bail petitioner. Whether licence possessed by the bail petitioner was meant for purchase/sale of prohibited drugs or not, is a question of trial and same shall be determined by the court below on the basis of evidence adduced on record by the Investigating Agency, but definitely, at this stage, there is nothing on record, which could compel this Court to conclude that bail petitioner purchased the aforesaid drugs for indulging in illegal trade of the same.
::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 6Otherwise 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 reveals 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, 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 keep the bail petitioner in jail for an indefinite period, especially, when he has already suffered for more than seven months. Needless to say, guilt, if any, of the petitioner is yet to be proved in accordance with law and as such, his 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.
::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 7Otherwise, 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 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 ::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 8 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;
(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 ::: Downloaded on - 28/12/2017 23:26:28 :::HCHP 9 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.
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.
27th December,2017 (Sandeep Sharma),
manjit Judge
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