Himachal Pradesh High Court
Diwan Chand vs State Of H.P on 10 July, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP (M) No. 809 of 2017
Date of Decision: 10.7.2017
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Diwan Chand .........Petitioner.
Versus
State of H.P. .....Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. D.K.Sharma, Advocate.
For the Respondent: Mr. P.M. Negi & Mr. M.L. Chauhan,
r Additional Advocate Generals.
Sandeep Sharma, J (oral)
By way of present petition filed under Section 439 of the Code of Criminal Procedure, petitioner has prayed for grant of regular bail in case FIR No.76 of 2016 dated 5.10.2016, registered at Police Station, Arki, District Solan, H.P., under Sections 21-61-85 of the Narcotic Drugs & Psychotropic Substances Act ( For short ' Act') .
2. Sequel to orders dated 20.6.2017 and 3.7.2017, S.I. Hari Bhagat, Police Station, Arki, District Solan, has come present in Court alongwith the record. Record perused and returned.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 23. Perusal of the aforesaid status report/reply reveals that on 5.10.2016 search was conducted at the house of the bail petitioner, wherein 40 bottles of 100 ml each of Corex cough syrup were recovered. Since bail .
petitioner failed to produce any permit to keep aforesaid bottles, FIR as mentioned above, came to be registered against him under Section 21-61-85 of the Act. It also emerge from the record that since 12.1.2017, 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 Cough Syrup under reference with representative & homogeneous sample. The above tests performed indicated the presence of codeine phosphate in the sample of Corex Cough Syrup. On its quantitative analysis codeine phosphate was found to be 2.006mg/ml in 100ml bottle of Corex Cough Syrup. The result thus obtained is given below. Codeine Phosphate is present in the exhibit stated as Corex Cough Syrup.
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 20 and 21 of the Act stands filed in the competent court of law on 5.4.2017 and petitioner is in judicial custody since 12.1.2017.
::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 35. Mr. D.K.Sharma, 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. .
Sharma further contended that as per report of FSL, prohibited drug namely Codeine Phosphate has been found to be 2.006 mg/ml in 100 ml bottle of Corex Cough Syrup, meaning thereby, quantity, if taken into consideration qua all the recovered 40 bottles of Corex Cough Syrup, 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. Sharma further contended that petitioner is in custody since 12.1.2017 and more than six months 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. Sharma 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. P.M. Negi, learned Additional Advocate General, while inviting attention of this Court to status report, as referred ::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 4 above, opposed the aforesaid 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 Corex Cough Syrup" 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 40 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 ::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 5 be drawn that 'small quantity' of Codeine Phosphate is present in recovered bottles. 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 present case is complete and challan stands filed before the competent Court of law on 5.4.2017. This Court cannot lose sight of the fact that petitioner is in custody since 12.1.2017 and approximately six 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 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:
::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 6(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;
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(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. r 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;
(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.::: Downloaded on - 11/07/2017 23:58:49 :::HCHP 7
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.
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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.
10th July 2017 (shankar) ::: Downloaded on - 11/07/2017 23:58:49 :::HCHP