Himachal Pradesh High Court
Rinku vs State Of Himachal Pradesh on 8 August, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1013 of 2017
Decided on August 8, 2017
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Rinku ... 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. Manoj Pathak, Advocate.
For the respondent :
Mr. P.M. Negi and Mr. M.L.
Chauhan, Additional Advocates
General.
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Sandeep Sharma, Judge (oral):
By way of instant petition filed under Section 439 CrPC, prayer has been made for grant of bail in FIR No. 231/2016 dated 22.7.2016, under Section 21 of Narcotic Drugs & Psychotropic Substances Act, and Sections 181 and 186 of Motor Vehicles Act, registered at Police Station, Paonta Sahib, District Sirmaur, Himachal Pradesh. In pursuance of order dated 31.7.2017, HC Devinder Singh, No. 326, PS Paonta Sahib, District Sirmaur, Himachal Pradesh has come present with the status report. Mr. P.M. Negi, learned Additional Advocate General, has placed on record status report, prepared on the basis of investigation carried out by the investigating agency.
2. Perusal of status report suggests that on 20.7.2016, at 12.30 PM, near Girls School, Paonta Sahib, police apprehended petitioner, while he was riding a motor cycle No. HP17A-9242. On 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 09/08/2017 23:57:04 :::HCHP 2the search of backpack being carried by him on his back, police recovered 136 plastic bottles of Corex Cough Syrup, 100 ml each, containing Codeine Phosphate I.P. 10 mg. Petitioner could not .
produce any document authorizing him to carry the above quantity of contraband. Case property was taken into possession and sealed. Codal formalities were completed. Petitioner was taken into custody on 20.7.2016 at 5.00 pm itself and since then he is in police custody. Challan has been presented in the court of learned Sessions Judge, Sirmaur at Nahan.
3. It also emerges from the status report that recovered contraband was sent to SFSL Junga for chemical analysis. SFSL, in its report has concluded that Codeine Phosphate measuring 1.981 mg /ml is present in 100 ml bottle of Corex cough syrup.
SFSL report has concluded that Codeine Phosphate is present in the exhibit stated to be Corex cough syrup.
4. Mr. Manoj Pathak, learned counsel representing the petitioner, while inviting attention of this Court to report submitted by SFSL Junga, contended that the psychotropic substance is less than commercial quantity. Mr. Pathak further contended that as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 1.981 mg/ml, meaning thereby, quantity, if taken into consideration of recovered 136 bottles, comes to 26941.6 mg or 26.941 grams, which is less than commercial quantity and as such petitioner is entitled to be released on bail. Learned counsel further contended that only ::: Downloaded on - 09/08/2017 23:57:04 :::HCHP 3 psychotropic substance contained in the contraband 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 cough syrup namely Corex. Mr. Pathak further contended that petitioner is in custody since 20.7.2016 and more than one year has passed. While concluding his arguments, Mr. Pathak 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.
5. Mr. P.M. Negi, learned 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 is more than small 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 Codeine Phosphate is present in the exhibit, as such, by no stretch ::: Downloaded on - 09/08/2017 23:57:04 :::HCHP 4 of imagination, it can be contended that contraband /psychotropic substance recovered from the petitioner is less than commercial quantity.
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6. I have heard the learned counsel for the parties and gone through the record carefully.
7. In the instant case, as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 1.981 mg/ml, in one bottle of Corex Cough Syrup meaning thereby, quantity of prohibited drug, if taken into consideration qua 136 bottles allegedly recovered from the petitioner, comes out to be less than commercial quantity. SFSL, while concluding that 1.981 mg Codeine Phosphate is found per ml, has nowhere rendered any opinion with regard to remaining contents/mixture of bottles, hence, inference can be drawn that quantity less than 'commercial 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.
::: Downloaded on - 09/08/2017 23:57:04 :::HCHP 58. Indisputably, investigation in the case is complete and matter is pending before trial Court, as such, this Court is of the view that no fruitful purpose would be served in case petitioner is .
left to incarcerate in lock-up. 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 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 place mentioned in the application and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him.
9. 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:
(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.
10. 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 `50,000 with ::: Downloaded on - 09/08/2017 23:57:04 :::HCHP 6 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.
11. 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.
12. 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 the this petition alone.
The petition stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge August 8, 2017 (vikrant) ::: Downloaded on - 09/08/2017 23:57:04 :::HCHP