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Himachal Pradesh High Court

Roshan Lal Bhardwaj vs State Of Himachal Pradesh on 2 May, 2019

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

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Cr. MP(M) No. 613 of 2019 02.05.2019 Present: M/s Azad Kaith & Ashok Kumar, Advocates, for the petitioner.

M/s Dinesh Thakur & Sanjeev Sood, Additional Advocate Generals, with M/s R.P. Singh and Amit Dhumal, Deputy Advocate Generals for the respondent.

SI Surjeet Singh, I.O. Police Station Joginder Nagar is present in person alongwith case r record.

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of regular bail in FIR No. 11 of 2019, dated 17.01.2019, registered under Sections 25 & 29 of the Narcotic Drugs and Psychotropic Substances Act at Police Station Joginder Nagar, District Mandi, H.P.

2. Allegation against the petitioner is that charas weighing 1 kg. 121 grams which was recovered from the conscious possession of one Karan Sood (co­ accused) was sold to him by the petitioner. Application filed by the petitioner under Section 439 of the Code of Criminal Procedure before the Court of learned Special Judge (III), Mandi, i.e., Bail Petition No. 45/19, CIS Regn. No.151/2019 stood rejected by the learned Sessions Court vide order dated 10.04.2019. Learned Court below rejected the application, inter alia, on the ground that the quantity recovered from the exclusive and conscious possession of the co­accused, was huge and further that the accused was an habitual offender, as earlier also, he stood booked in FIR No. 99/2017, dated 14.07.2017 registered under Section ::: Downloaded on - 06/05/2019 21:58:04 :::HCHP .

20 of the ND & PS Act at Police Station Baijnath, District Kangra, H.P.

3. Learned counsel for the petitioner has argued that if percentage of resin, as mentioned in the Chemical Examiner Report is considered, then in view of the percentage of resin, the charas allegedly recovered, is of non­commercial quantity and, therefore, the petitioner is entitled for bail. He has further argued that the order of rejection of the application for grant of bail of the petitioner by the learned Court below is perverse and not sustainable in law, as the learned Judge has erred in not appreciating that this Court in Cr. MP(M) No. 332 of 2019, titled as Roshan Lal Bhardwaj Vs. State of Himachal Pradesh, decided on 15.03.2019 had issued directions, which are mandatory in nature, which read as under:

".....2. It is made clear that in future all the Special Courts/Sessions Courts concerned, who deal with an application under Section 439 of Cr.

P.C., in respect of the offences, constituted, under the Narcotic Drugs and Psychotropic Substances, Act, shall bear in mind, the, verdict recorded by this Court, upon Cr.M.P.(M) No. 138 of 2019, and, pass orders, in accordance with law. No costs."

4. As per learned counsel for the petitioner, in view of the directions issued by this Court, quoted ::: Downloaded on - 06/05/2019 21:58:04 :::HCHP .

hereinabove, learned Court below had no option, but to release the petitioner and on this count also, the petitioner has a right to be released on bail.

5. To the contrary, learned Additional Advocate General has argued that the directions issued by a Co­ ordinate Bench of this Court, which are being relied upon by learned counsel for the petitioner for release of the petitioner, are not sustainable in law, because while deciding a bail application, no mandate could have been issued that all bail applications should be decided by the Special Courts/Sessions Courts, who deal with an application under Section 439 of the Code of Criminal Procedure in respect of the offences constituted under the Narcotic Drugs and Psychotropic Substances Act in terms of the verdict recorded in Cr. MP(M) No. 138 of 2019, as by mandating so, now the Special Courts/Sessions Courts have no element of discretion vested in them and they are bound to pass orders on bail applications in a mechanical manner, rather than on the basis of judicial application of mind on the facts of the case.

6. In my considered view, there is force in the contention of learned Additional Advocate General. While deciding a bail application, this Court can pass appropriate orders upon the same either allowing it or dismissing it, ::: Downloaded on - 06/05/2019 21:58:04 :::HCHP .

keeping in view the facts of that case. This is exactly what Special Courts/Sessions Courts also do while adjudicating upon bail applications under Section 439 of the Code of Criminal Procedure.

7. Incidentally, the High Court and the Court of Sessions enjoy same powers while dealing with an application under Section 439 of the Code of Criminal Procedure. In these circumstances, be it a case under the ND & PS Act or any other Act, in the matter of bail, in my considered view, no mandate can be issued directing the Special Courts/Sessions Courts to deal with the application filed under Section 439 of the Code of Criminal Procedure in respect of offences constituted under the Narcotic Drugs & Psychotropic Substances Act as per the verdict recorded by this Court in Cr. MP(M) No. 138 of 2019. This is, more so, for the reason that a perusal of the judgment passed by a Co­ordinate Bench in Cr. MP(M) No. 138 of 2019 (supra) demonstrates that there are judgments of other Co­ordinate Benches of this Court, in which, view contrary to the one taken in the abovementioned Cr.MP(M) No. 138 of 2019 exists.

8. By issuing a mandate, the Co­ordinate Bench has impliedly overruled the judgments passed by other Co­ ordinate Benches of this Court, in which, view contrary to the one taken in Cr. MP(M) No. 138 of 2019 exists, thereby ::: Downloaded on - 06/05/2019 21:58:04 :::HCHP .

leaving no space for the Special Courts/Sessions Courts to apply their mind independently and judiciously, taking into consideration the judgments of various Benches of this Court, be it Single Bench or Division Bench, while adjudicating an application under Section 439 of the Code of Criminal Procedure.

9. In these peculiar circumstances, in my considered view, in the interest of justice, this issue requires to be resolved by a Larger Bench as to whether a Single Bench of this Court while deciding a bail application, can issue a mandate to all the Special Courts/Sessions Courts that all applications to be dealt with by them under Section 439 of the Code of Criminal Procedure pertaining to Narcotic Drugs and Psychotropic Substances Act be decided as per the law laid down by it or not?

Registry is directed to place the papers before Hon'ble the Chief Justice for appropriate orders qua constitution of a Larger Bench.

(Ajay Mohan Goel) Judge May 02, 2019 (bhupender) ::: Downloaded on - 06/05/2019 21:58:04 :::HCHP