Himachal Pradesh High Court
Vishal Dhiman vs State Of Himachal Pradesh on 17 February, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 156 of 2020
Reserved on : January 24, 2020
Date of Decision : February 17 , 2020
Vishal Dhiman ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Navlesh Verma, Advocate, for the petitioner.
For the respondent : Mr. Narender Guleria, Addl.AG and Mr. Bhupinder Thakur, Dy.AG for the respondent/State.
Anoop Chitkara, Vacation Judge.
For possessing 15.17 grams of Heroin, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 03 of 2020, dated Jan 17, 2020, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in the file of Police Station New Shimla, Distt. Shimla, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 22. Status report stands filed and taken on record. 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 heard learned Counsel for the parties.
FACTS
3. The gist of the First Information Report and the investigation is that a police party of Special Investigating Unit, Shimla, was on patrolling duty on Jan 16, 2020 to detect crime and for the purpose of patrolling in a private vehicle.
At ab round 9.30 p.m., at a place near Jhinjhari, the police party spotted a young person who was walking carrying a bag in his hand. On seeing the police party he became perplexed and started running in the reverse direction. On this, suspicion arose and the police party nabbed him. After that the police party associated independent witnesses and in their presence conducted search of the bag carried by the said person. On search the police party detected brown substance in a plastic pouch which on checking from the Drug Detection Kit tested positive for Heroin. When weighed it turned out to be 15.17 grams. The said person disclosed his identity as Vishal Dhiman the petitioner herein.
Subsequently, the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner.
ANALYSIS AND REASONING:
4. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing ::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 3 away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
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5. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
6. The substance recovered from the petitioner is just 15.17 grams and close to small quantity. In the status report, there is no mention of any previous criminal history of the bail petitioner. This Court is inclined to afford last opportunity to the petitioner, making it very clear that in case, the petitioner repeats the offence, then this bail is liable to be cancelled.
7. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 4a) As per the FIR, the substance involved 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 drug involved 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 has to be treated like any other case of grant of bail in a penal offence.
c) The petitioner is in judicial custody since Jan 17, 2020.
d) The investigation in the case is almost complete.
e) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured.
f) In the status report, there is no mention of previous criminal history of the bail petitioner.
8. 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 two sureties in the like amount to the satisfaction of the Trial Court or the Court exercising jurisdiction over the concerned Police Station where FIR is registered.
9. The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through ::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 5 AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.
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10. The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.
11. 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 shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
b) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.
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 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.
f) The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever.
::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 6g) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment of more than seven 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 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 or to the Trial Court for cancellation of this bail, if it deems fit and proper. It is made clear that in such case the Court who would be considering such bail application(s) shall take into account that despite warning the accused has repeated the offence.
h) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
i) Apart from above, in case the Petitioner does not turn up before the Trial Court, then the trial Court may issue Non-Bailable warrants and send the petitioner to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.
12. This order of bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the petitioner.
::: Downloaded on - 17/02/2020 20:23:21 :::HCHP 713. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any .
condition, then, the petitioner may file a reasoned application for modification of such term(s).
14. 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.
15. 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.
16. The petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara), Vacation Judge.
February 17 , 2020 (PK) ::: Downloaded on - 17/02/2020 20:23:21 :::HCHP