Himachal Pradesh High Court
Bhanderi vs Devi Ram By Learned Special Judge on 14 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 14th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
.
CRIMINAL MISC.PETITION (MAIN) U/S 482 CRPC NO. 140 OF
2022
Between:-
DEVI RAM SON OF SHRI BALBIR
SINGH, RESIDENT OF VILLAGE
BHANDERI, PO AND TEHSIL
GOHANA, P.S. BARODA,
DISTRICT SONEPAT, HARYANA
....PETITIONER
(BY MR. PEEYUSH VERMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH,
THROUGH PRINCIPAL SECRETARY
(HOME), GOVERNMENT OF H.P.
SHIMLA
...RESPONDENT
(BY MR. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL)
Whether approved for reporting? Yes
This petition coming on for pronouncement this day, the Court passed the
following:
ORDER
Petitioner, by way of present petition, has assailed order dated 15.2.2022, passed in Cr.MA No. 190 of 2021, titled as State of H.P vs. Devi Ram by learned Special Judge, Sundernagar, District Mandi H.P. whereby bail granted to petitioner vide order dated 22.4.2019 passed in Bail Application No. 137 of 2019, titled Devi Ram vs. State of HP, has been cancelled.
::: Downloaded on - 14/06/2022 20:02:56 :::CIS 2 2 Petitioner is an accused in FIR No. 279 of 2017 dated 8.12.2017, registered in Police Station Sundernagar, under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in short .
'NDPS Act'), for alleged recovery of 22 Kg. 8 grams charas from him, wherein, as per State Forensic Science Laboratory Report, resin was found to be 27.91% w/w.
3 Petitioner was arrested on 8.12.2017 and at the time of consideration of Bail Application No. 137 of 2019 in April 2019, he was in judicial custody.
4 A Single Bench of this High Court vide order dated 15.3.2019 passed in Cr.MP(M) No. 138 of 2019, titled Nasir Mohammad vs. State of HP, had granted bail to petitioner therein where quantity of charas, alleged to have been recovered from possession of accused, was 2 Kg. 10 grams, but percentage of resin reported by FSL was 18.76% w/w and, thus, by taking quantum of contraband recovered, on the basis of percentage reported by State FSL, to be less than commercial quantity.
5 The aforesaid order was passed by learned Single Judge by distinguishing the judgment passed by Full Bench of this Court in case titled as State of HP vs. Mehbood Khan, reported in 2013(3) Him.L.R. (FB) 1834. On the same analogy, bails were granted by some Courts in other cases also, on the basis of percentage of resin, treating the commercial quantity of charas as less than commercial quantity.
::: Downloaded on - 14/06/2022 20:02:56 :::CIS 3 6 In Cr.MP(M) No. 332 of 2019, titled Roshan Lal Bhardwaj vs. State of HP, decided on 15.3.2019, learned Single Judge has granted bail on the same ground and had also passed the following .
binding direction to the Subordinate Courts:-
"It is made clear that in future all the Special Courts/Sessions Courts concerned, who deal with an application under Section 439 Cr.P.C., in respect of the offences, constituted, under the Narcotic Drugs and Psychotropic Substance 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."
7 Bound by aforesaid direction in large number of cases, bails were granted to accused persons by treating commercial quantity as non-commercial quantity on the basis of percentage of resin of charas found in recovered contraband. 8 Petitioner herein vide order dated 22.4.2019 passed in Bail Application No. 55 of 2019, titled Devi Ram vs. State of HP was enlarged on bail by Special Judge-II, Mandi in furtherance to directions issued by learned Single Judge in Cr.MP(M) No. 138 of 2019, titled Nasir Mohammad vs. State of HP and Cr.MP(M) No. 332 of 2019, titled Roshan Lal Bhardwaj vs. State of HP, by treating the quantity recovered from petitioner as less than commercial quantity on the basis of percentage of resin reported by Forensic Science Laboratory.
9 Aforesaid issue was placed before the Division Bench of this High Court in case Cr.MP(M) No. 613 of 2018 titled Bhavan ::: Downloaded on - 14/06/2022 20:02:56 :::CIS 4 Kumar vs State of HP, which was decided on 29.02.2020. The Division Bench overruled the version of learned Single Judge taken in Nasir Mohammad, Roshan Lal Bhardwaj's cases, referred supra .
and other similar cases, whereby bail was granted on the basis of percentage of resin found in charas and it was observed that law laid down by High Court in Mehbood Khan's case is binding upon all and with regard to persons already enlarged on bail by following Nasir Mohammad and Roshan Lal Bhardwaj's cases, following observations were made:-
"15. Since the Single Bench, which has decided Cr.M.P (M)No.138 of 2019, titled Nasir Mohammad versus State of Himachal Pradesh has granted bail to Nasir Mohammad and also Roshan Lal Bhardwaj in Cr.M.P(M) No. 332 of 2019 and also to the petitioner in several other petitions mentioned in Dilbar Singh's case and also in para 7 of this judgment, while taking a view contrary to the one taken by Full Bench of this Court in Mehboob Khan's case supra and by a Division Bench of this Court in Nirmal Singh's case also followed by one of us (Justice Vivek Singh Thakur, J.) in Dilbar Singh's case supra, therefore, we will be failing in our duty, if not, pass appropriate directions in this regard. Though show cause notice should have been issued straightway to the accused persons hereinabove, who have been ordered to be admitted on bail by not appreciating the law laid down in Mehboob Khan's case in its right perspective, however, we leave it open to learned Advocate General, State of Himachal Pradesh to consider the desirability of filing of appropriate application(s) for cancellation of the liberty of bail so ::: Downloaded on - 14/06/2022 20:02:56 :::CIS 5 granted by learned Single Judge by taking a contrary view in Nasir Mohammad's case supra. Similarly, the Additional Chief Secretary (Home) to the Government of Himachal Pradesh also to examine the desirability to .
consider the filing of application(s) before the Sessions Judges (Special Judges) in the State for cancellation of bail granted to the accused persons in the cases registered under the NDPS Act while placing reliance on the judgment in Nasir Mohammad's case and Roshan Lal Bhardwaj's case referred to hereinabove." 10 In furtherance to aforesaid directions passed by Division Bench, Application No. 190 of 2021 for cancellation of bail was preferred by State of HP in the present case. The said application was allowed by learned Special Judge vide impugned order dated 15.2.2022 by following the directions/findings returned by Division Bench in Bhavan Kumar's case. Hence present petition has been filed.
11 Learned counsel for petitioner has submitted that petitioner was enlarged on bail vide order dated 22.4.2019 and, thereafter, till cancellation of his bail, he has not violated any of the conditions imposed upon him at the time of granting bail and he regularly attended the Court during trial after grant of bail and, therefore, there was no ground available with respondent/State as well as learned Special Judge to cancel the bail of petitioner. 12 To substantiate the aforesaid plea, learned counsel has placed reliance upon pronouncement of the Supreme Court reported in Ms. X vs. The State of Telangana and another, reported in ::: Downloaded on - 14/06/2022 20:02:56 :::CIS 6 (2018)16 SCC 511 and Vipan Kumar Dhir vs. State of Punjab reported in 2021 SCC Online SC 854: AIR 2021 SC 4865. 13 Learned counsel for petitioner has submitted that .
Division Bench of this High Court in Bhavan Kumar's case, had directed the Additional Chief Secretary (Home) to examine the desirability of filing application before Sessions Judges/Special Judges in the State for cancellation of bail granted to accused persons by placing reliance on judgments in Nasir Mohammad, Roshan Lal Bhardwaj's cases but not to file application in each and every case. Further he has contended that in present case, application has been filed by Public Prosecutor that too without any affidavit in support thereto and without placing any directions/instruction issued by the Additional Chief Secretary after examining the desirability of filing application in present case. Referring E. Micheal Raj vs. Intelligence Officer, Narcotic Central Bureau, reported in (2008)5 SCC 161, he has submitted that at the time of grant of bail, pronouncement of the Supreme Court in E Micheal Raj's case directing to consider the quantum of recovered contraband, on the basis of percentage of resin, was in existence and, therefore, learned Special Judge had rightly enlarged the petitioner on bail vide order dated 22.4.2019. 14 Learned Additional Advocate General has submitted that Public Prosecutor is representative of State in Court and, therefore, application filed by Public Prosecutor is an application filed by State of HP, as directed by Division Bench of this High Court. He has ::: Downloaded on - 14/06/2022 20:02:56 :::CIS 7 submitted that order of granting bail to petitioner was based on the judgment passed in contradiction to Full Bench's judgments of this High Court in Mehboob Khan's case and, therefore, such grant of .
bail, particularly in view of order/direction passed by Division Bench, was liable to be interfered with and bail granted to petitioner has, thus, rightly been cancelled by passing impugned order. 15 Learned counsel for petitioner, in response, has submitted that procedure is a handmade instrument for doing substantial justice and in present case, if circumstances, in totality, are taken into consideration, petitioner is entitled for bail and, thus, cancellation order deserves to be quashed.
16 Perusal of order dated 22.4.2019 clearly depicts that Special Judge-II, Mandi had enlarged the petitioner on bail solely on the basis of binding directions issued by learned Single Judge in Nasir Mohammad and Roshan Lal Bhardwaj's cases. The Division Bench has overruled the decision of learned Single Judge in aforesaid cases and in addition, has issued the mandatory directions to State to examine the desirability to consider filing of application for cancellation of bail granted to persons on the basis of direction issued by learned Single Judge, referred supra. Learned Public Prosecutor has acted in accordance with direction passed by Court, who is representative of State in Court.
17 Petitioner may or may not be entitled for bail under Section 439 Cr.PC on grounds other than the ratio laid down by Single Judge in Nasir Mohammad and Roshan Lal Bhardwaj's cases, ::: Downloaded on - 14/06/2022 20:02:56 :::CIS 8 but vide order dated 22.4.2019 he was granted bail on the basis of directions of Single Judge on the basis of judgment in aforesaid two cases and as per direction issued by Division Bench in Bhavan .
Kumar's case that bail so granted was liable to be cancelled on application of State and, therefore, in present case, learned Special Judge has not committed any illegality, irregularity, infirmity or perversity in canceling the bail so granted to petitioner. 18 Needless to say that petitioner has right to file bail application and successive bail applications for enlarging him on bail on valid ground in accordance with law including the ground taken in present petition but not on the grounds which are contrary to judgment of Full Bench in Mehboob Khan's case and Division Bench in Bhavan Kumar's case, and therefore, petitioner is at liberty to file appropriate fresh application for bail if advised and desired so and such application, if so filed, shall be considered by the Court on the basis of its merits considering material placed before the Court, but without being influenced by rejection of present petition.
Petition is dismissed in aforesaid terms.
June 14, 2022 (Vivek Singh Thakur)
(ms) Judge
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