Himachal Pradesh High Court
Davinder @ Chhinda vs State Of Himachal Pradesh on 10 April, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No. 273 of 2024 Reserved on: 03rd April, 2024 Announced on: 10th April, 2024 .
____________________________________________________________ Davinder @ Chhinda .......Petitioner Versus State of Himachal Pradesh ......Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes.
For the petitioner: Mr. Sangram Singh Chandel, Advocate.
For the respondent: Mr. Prashant Sen, Deputy Advocate General.
Ranjan Sharma, Judge Bail petitioner [Davinder @ Chhinda], has come up before this Court, seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure hereinafter (referred to as CrPC). originating from the FIR No. 11 of 2024 dated 10.02.2024, registered at Police Station Parwanoo, District Solan [H.P.], under Section 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act).
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/04/2024 20:34:05 :::CIS -2-FACTUAL MATRIX
2. Case set up by Mr. Sangram Singh Chandel, Learned Advocate, is that on 10.02.2024, two boys namely .
Rishabh Sehgal and Anish Sonker were allegedly found to have been indulged in the business of selling of Chitta/herion at Parwanoo market. The police incepted aforesaid two boys and recovery of Chitta/heroin was made from the aforesaid persons. Consequently, an FIR No.11 of 2024, dated 20.02.2024 was registered against these two boys by the police.
2(i) The case of the bail petitioner-accused is that, he has been falsely implicated. It is further averred that on 09.01.2024, one police official came to the house of the bail petitioner-accused and started quarreling with him and he was also given beatings by the aforesaid police official. It is also borne out from Annexure P-3 that the visit and the unwarranted action of the alleged police official is recorded in the video as per Annexure P-3. It is further averred that the mobile phones of the petitioner and his family were illegally taken in custody by the aforesaid police official. It is further stated that in view of the above background and the role of ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -3- the alleged police official, the petitioner is sought to be implicated falsely.
2(ii) The bail petitioner-accused has moved the learned .
Sessions Judge Fast Track, Special Court (POCSO), Solan, District Solan, H.P. in Bail Application No.38-S/22 of 2024 and the bail application was rejected on 19.02.2024, Annexure P-4 on the ground of past criminal history of the petitioner.
2(iii) Consequent upon the rejection of bail by the Learned Trial Court on 19.02.2024 [Annexure P-4], the petitioner has come up before this Court seeking anticipatory bail in Cr.MP(M) No.273 of 2024 and this Court in view of contentions raised, granted the interim pre-arrest bail on 20.02.2024, with directions to the respondents to file the Status Report.
STAND OF STATE AUTHORITIES 2(iv) Upon issuance of notice by this Court on 20.02.2024 and the grant of interim bail, the respondents filed Status Report dated 21.03.2024 in the Court. Thereafter, the matter was again listed on 26.03.2024 when, respondents filed Second Status Report, which affirms part of the case ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -4- records. The matter was then listed on 03.04.2024, when the Third Status Report was filed by the State Authorities.
2(v) A perusal of the Status Report reveals that the .
bail petitioner [Davinder @ Chhinda] had conspired with one Nigerian namely [TIDJ MAMANE], who was living in Delhi. The Status Report further reveals that the bail petitioner had been in contact with the aforesaid Nigerian [TIDJ MAMANE] for the last about three years. The Status Report further reveals that on 09.02.2024 and 10.02.2024, the bail petitioner had spoken with the aforesaid Nigerian on the phone No.9394558970 and as a result of the aforesaid criminal conspiracy, the bail petitioner had deputed two persons namely Rishab Sehgal and Anish Sonker from Parwanoo/Kalka to Delhi, for bringing the contraband for the bail petitioner. It is the case of the prosecution that these two persons went to Delhi who met the Nigerian and then brought the contraband to Parwanoo, where they were nabbed by the police on 10.02.2024. On being nabbed, the contraband i.e. heroin/chitta weighing 39.70 gms was recovered from Rishab Sehgal and heroin/chitta weighing 9.33 gms was recovered from Anish Sonker. The Status ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -5- Report further reveals that the aforesaid two persons [Rishab Sehgal and Anish Sonker] who were deployed by the bail petitioner to Delhi, to meet the Nigerian and to get .
the contraband for sale/purchase etc. who have also admitted before the police that they had gone to Delhi at the instance of the bail petitioner [Davinder @ Chhinda].
The Status Report further reveals that during the investigation, after the orders of interim anticipatory bail, given by this Court on 20.02.2024, the bail petitioner [Davinder @ Chhinda] has further stated that in case he was taken to Delhi, he would recognize the Nigerian, accordingly, the bail petitioner was taken to Delhi by the police team and near Akash Hospital, Delhi, the Nigerian was identified and was nabbed by the police. It has also come in Status Report that the bail petitioner had been contacting/calling the Nigerian from phone No.97291-96267 and even the daughter of the bail petitioner [Davinder @ Chhinda], has also stated that his father i.e. bail petitioner used to retain and make calls from the aforesaid phone.
The Status Report further reveals that the bail petitioner has been involved in 4 NDPS cases, i.e. case registered on ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -6- 18.12.2018 in which he was acquitted by the Learned Special Judge, Solan, but in other three NDPS cases which were registered on 26.11.2018, 20.03.2021 and 04.11.2022 are .
pending Trial before Learned Special Judge, Solan and Learned Court at Chandimandir [Panchkula].
In the above background, the State Authorities have prayed for rejection of the bail application.
3. Heard Mr. Sangram Singh Chandel, Learned Counsel for the bail petitioner and Mr. Prashant Sen, Learned Deputy Advocate General for the Respondent(s).
4. Before dealing with the present application, it is necessary to take note of the provisions of Section 438 of the Cr.P.C. and Section 21 and 29 of the NDPS Act, under:
Section 438 Direction for grant of bail to person apprehending arrest:
(1). Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely:-::: Downloaded on - 19/04/2024 20:34:05 :::CIS -7-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
.
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application r for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -8- light of the facts of the particular case, as it may thinks fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
.
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
(3)r If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376 AB or section 376DA or section 376DB of the Indian Penal Code.
Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation to manufactured drugs and preparations-
Whoever, in contravention of any provision of ::: Downloaded on - 19/04/2024 20:34:05 :::CIS -9- this Act or any Rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be .
punishable,
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India .
which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
5. Notably, r the offences under the NDPS Act including Sections 21 and 29 of the aforesaid Act, as in this case are cognizable, therefore, the claim of the suspect-
accused for post arrest bail-regular bail is to be examined/ tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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(2010) 14 SCC 496 ; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to .
be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
5(i). While
r to
dealing with the case for grant of
bail, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25 that the nature of the crime has a huge relevancy, while considering claim for bail.
5(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
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11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by .
the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
r (iii) The position or status of the accused,
i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required .
to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be.
6. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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parameters mandated by law, as referred to herein above.
7. This Court is also conscious of the fact that .
as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state.
In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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as it may tend to prejudice the rights of the accused as well as the prosecution.
8. In order to examine the claim for bail, under .
NDPS Act, this Court deems it necessary to have a recap of the Preamble of the Act, which reads as under:
"An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the r provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith"
8(i). While dealing with the object of the NDPS Act, the Hon'ble Supreme Court in case of Durand Didier, (1990) 1 SCC 95, has mandated that devastating menace of clandestine smuggling and illegal trafficking in drugs and substances has led to drug addiction amongst a sizeable section of the society, the adolescents and the youth, having a deleterious effect and deadly impact on the society, with the following observations :
19. In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant's possession ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
20. It may not be out of place to mention that even if a person is shown to have been in .
possession of a small quantity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
21. Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
22. We, for the above reasons, see no merit in this contention also. The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows:
"The spreading of the drugs in Gao is becoming day by day a terrible menace which is completely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade."
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, .
in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine....".
8(ii). In Hira Singh versus Union of India, (2020) 20 SCC 272, the Hon'ble Supreme Court has mandated that the provisions of the NDPS are not to be construed liberally but to ensure effective implementation of rule of law so as to achieve the object of enactment {NDPS} by curbing and stringently deal with nefarious activities/ illegal trafficking in powerful, dangerous and injurious illegal street drugs under the NDPS Act, as under:
10.3 At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal 34 doses of drugs. Take ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealer will add other drugs or non-intoxicating substances .
to the drug so that they can sell more of it at a lesser expense to themselves. Brown-sugar / smack is usually made available in power form. The substances is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is more dangerous. Therefore, what is harmful or injurious r is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for "commercial quantity". Certainly that would not have been the intention of the legislature...."
10.5 The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to .
remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one r but its preventive part is more important.
Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act ; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act ...."
9. Even a suspect or an accused under NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely on ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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the ground that the quantity of contraband, allegedly involved, is either small or intermediate. However, while considering the prayer for bail, even in offences under .
the NDPS, relating to either small quantity or an intermediate quantity, still the claim is required to be tested in the backdrop of Section(s) 438 or 439 of Code of Criminal Procedure {herein, Cr P C}, and also in the context of the time tested broad parameters mandated by the Hon'ble Supreme Court, in referred to above.
r to Paras 6 to 10
10. Merely because a bail petitioner is implicated for accusation relating to either small or intermediate quantity of contraband cannot ipso facto confer a right of bail, on such a suspect or accused. The Courts cannot feign ignorance that it is the modus operandi of Drug Mafia's or Master-minds or King Pins of such trade, who primarily act through persons who are either indigent or poor or are unemployed or have unwarranted and unexpected financial expectations or who are suffers of financial liability etc., by initially alluring them to act as small peddlers towards trafficking ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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of small and intermediate quantity of contraband, with the predesigned calculation that they may have an easy escape, even if they are apprehended in view of .
the quantity being small or intermediate. Day in and day out, the instances are endlessly flowing where, these peddlers have turned out to be habitual offenders, being involved in numerous cases under NDPS and under other Statutes, which of course, becomes an
11. to important ingredient while examining claim for bail.
It is high time that the drug trafficking and menace needs to be dealt with iron hands. If the available material, points towards the prima facie case or carves out reasonable grounds to believe towards the accusation or culpability or involvement then, in the larger interest of the society the rule of law needs to be strictly enforced and any drug peddler or trafficker or person cannot be permitted to be enlarged on bail, ipso facto, merely because the quantity of contraband involved is either small or intermediate. Enlarging such persons on bail, shall certainly amount to sacrificing ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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the state and of course the nation to such nefarious activists.
11(i). To attain the objective of the NDPS Act .
and to ensure the rule of law, such persons who are prima facie involved in nefarious drug abuse, such person have no vested right to be enlarged on bail under the pretext of alleged claim of violation of their liberty in Article 21 for the reason, that the alleged assertion of infringement of personal liberty has to succumb to the larger interest of the society, which obviously is at a much higher pedestrian. The plea of seeking bail, claiming violation of personal liberty is a farce when, the liberty of a person ends where liberty of another including the society at large is in sought to be or actually violated, as in this case.
11(ii). Notably, the personal liberty under Article 21 to some extent may carry weight depending on facts of each case but when it comes to safeguarding and protecting the rights and interests of the society, the community and the nation then, in that event, individual ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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right shall have to succumb to societal interests, in terms of the mandate of law, in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) .
9 SCC 446, as under:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is r expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that .
individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established r precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires.
Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti collective act.
30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an .
accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said r parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
12. In considered view of this Court, the ipso-
facto claim for bail, on the pretext that the quantity involved is small or intermediate, despite there being a prima facie case or reasonable ground of involvement shall result in adding wings to their flight and giving leverage to such suspect-accused to continue, expand and flourish in inhumane trade and nefarious activities.
Such persons are bent upon, not only to destroy the society at large but are exploiting the youth in ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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the prime of their life, by depriving them of their youth, by curtailing fundamental right to live with dignity, by adversely affecting the health of such a .
person-who falls prey to such illegal activities.
13. In the above backdrop, the general principle is that when, a bail petitioner approaches a Court for bail {pre-arrest or regular bail} under NDPS Act and a Court forms a prima facie opinion on the basis of available material, that there is a prima facie case or reasonable grounds pointing towards the accusation of an offence, be it relating to a small or intermediate quantity of contraband therefore, such an accused has neither any automatic right nor can the privilege of bail be extended as a rule.
14. The exception to this principle is that the enlargement on bail {be it relates to either small quantity or intermediate quantity of contraband} can be extended, on case to case basis, after taking into account that the prima facie accusation does not points out towards involvement and the past conduct being unblemished coupled with the fact that a bail applicant ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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fulfils the broad parameters mandated by the Hon'ble Supreme Court referred to above.
BAIL ORDER BY LEARNED TRIAL COURT .
15. Before examining the claim for anticipatory bail in the instant case, it would be relevant to take note of the fact that the present bail petitioner, is the principal conspirator, with aforesaid Nigerian at Delhi namely [TIDJ MAMANE] and both of them managed the entire sale, purchase and inter State import of the contraband in question, in the instant case. The bail petitioner deployed two persons [Rishab Sehgal and Anish Sonker to Delhi to meet the Nigerian and get the contraband. On reaching back from Delhi, these two persons were nabbed by the Police at Parwanoo on 10.02.2024. After the aforesaid incident, the bail petitioner [Davinder @ Chhinda], apprehending his arrest, absconded and on 17.02.2024, the bail petitioner filed a bail application before the Learned Additional Sessions Judge, Fast Track, Solan, District Solan [H.P.] vide Bail Application No.38-S/22 of 2024, which was rejected on 19.02.2024 [Annexure A-4]. On perusal of the orders passed by the Learned Special Judge, Fast ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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Track, Solan, District Solan [H.P.], reveal that the bail has been rightly rejected by the Learned Trial Court, in view of the criminal conspiracy, which was writ large, in the .
instant case and also keeping in view the gravity of the alleged offence, the severity of the punishment, the factum of the past criminal cases and the likelihood of the bail petitioner, absconding/fleeing away. The Learned Trial Court had rejected the bail by a well reasoned order, on arriving at a prima facie, finding pointing out towards the accusation against the bail petitioner herein. In view of the above facts, this Court does not find any infirmity with the orders dated 19.02.2024 [Annexure A-4], passed by the Learned Trial Court, rejecting the bail application of the bail petitioner herein.
ANALYSIS OF CLAIM IN INSTANT CASE
16. Notwithstanding the orders passed by the Learned Trial court dismissing the plea for bail, this Court proceeds to examine the prayer for bail in instant case.
17. After taking into account the entirety of the facts and circumstances, the statutory provisions and the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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mandate of the Hon'ble Supreme Court, as referred to above, this Court is of the considered view that the bail petitioner, namely Davinder @ Chhinda, is not entitled to the .
benefit of enlargement on bail, at this stage, for the following reasons:-
17(i). The material on record filed by the State Authorities reveals prima facie case under Section 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act pointing out towards to the petitioner, [Davinder @ Chhinda].
r accusation against the bail
17(ii). A perusal of the FIR, the three Status Reports and
the statement of the other accused and the statement of the bail petitioner reveal that the present bail petitioner [Davinder @ Chhinda] was the main conspirator with the Nigerian [TIDJ MAMANE] at Delhi. It has also come on record that the bail petitioner had been in touch with the aforesaid Nigerian for the last 3-4 years. The records reveal that in order to give effect to the criminal conspiracy, leading towards sale, purchase and inter State import from Delhi to Himachal, the bail petitioner [Davinder @ Chhinda] and the Nigerian [TIDJ MAMANE] at Delhi, had ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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conspired with each other. The records reveal that on 09.02.2024 and 10.02.2024, both have spoken with each other on the phone. In order to give effect the alleged .
conspiracy, the bail petitioner deployed two persons i.e. Rishab Sehgal and Anish Sonker from Parwanoo/Kalka to Delhi, to bring the contraband from the aforesaid Nigerian [TIDJ MAMANE]. On reaching Delhi, these two persons, had called the bail petitioner from their phone Thereafter, r the to which is also corroborated from the material on record.
purchase and sale of the contraband was affected. These two persons [Rishab Sehgal and Anish Sonker] brought the contraband i.e. heroin/chitta weighing 39.70 gms with Rishab Sehgal and 9.33 gms with Anish Sonker, from Delhi to Parwanoo and they were nabbed on the national highway near Hotel Shiwalik at Parwanoo.
On being nabbed by the police on 10.02.2024, these two persons [Rishab Sehgal and Anish Sonker], admitted that they were sent to Delhi at the behest of Davinder @ Chhinda, i.e. the bail petitioner. After these two persons were nabbed by police at Parwanoo, the bail petitioner absconded from 10.02.2024, till he filed the bail ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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application before the Learned Additional Sessions Judge, Fast Track, Solan, District Solan [H.P.], which was dismissed on 19.02.2024. The Status Report further reveals that .
bail petitioner got interim bail from this Court and thereafter, he reported to the police for investigation. Even during investigation, the bail petitioner stated that if taken to Delhi, he would recognize the Nigerian [TIDJ MAMANE] from whom the entire contraband was procured and brought by these persons to Parwanoo. In this background, bail petitioner was taken by the police party to Delhi and thereafter, the police apprehended the aforesaid Nigerian from Akash Hospital at Delhi. Even the CDRs of the bail petitioner also reveal active involvement/ conspiracy, leading to the sale, purchase and Inter State import of the alleged contraband after colluding with the aforesaid Nigerian on 09.02.2024 and 10.02.2024 also.
The above sequence of events, reveal that the bail petitioner [Davinder @ Chhinda] had conspired with the Nigerian [TIDJ MAMANE] at Delhi, leading to the sale, purchase and inter State import from Delhi to Himachal of the alleged contraband i.e. heroin/chitta through the two ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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persons [Rishab Sehgal and Anish Sonker] who brought the contraband, but were nabbed at Parwanoo on the national highway near Shivalik Hotel. At the instance of .
the bail petitioner, the aforesaid Nigerian [TIDJ MAMANE] was also nabbed on being taken to Delhi. Even the CDRs of bail petitioner reveals the active conspiracy/involvement and the modus operandi leading to sale, purchase and inter-
state import of contraband from Delhi to Himachal at the behest of the bail petitioner. Even the daughter of bail petitioner had also stated that the bail petitioner had been using her phone i.e. 9729196267, from which the CDRs, leading to the conversation with the Nigerian [TIDJ MAMANE] was undertaken.
In the above scenario, though this Court has granted interim bail but on receipt of the Reply-Status Report, of the State Authorities, this Court sees no reason to extend the interim bail or to make the order absolute when, the prima facie material and reasonable grounds exist pointing out towards the accusation/involvement of the bail petitioner [Davinder @ Chhinda] at this stage, under Section ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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21 and 29 of Narcotic Drugs and Psychotropic Substances Act and accordingly, the bail is declined.
17(iii). The Status Report reveals that the bail petitioner .
[Davinder @ Chhinda] has blemished and disturbing past conduct for the reason that the bail petitioner has been involved in four NDPS cases in the past. In one of the cases he has been acquitted on 18.12.2018. However, three other cases in FIR Nos.152/2018, 40/2021 and 537/2022, under Sections 20 and 21 of the NDPS Act, are still pending Trial with the Learned Special Judge, Solan and Learned Court at Chandimandir [Panchkula].
17(iv). The Hon'ble Supreme Court in Sunil Kumar versus State of Bihar and another (2022) 3 SCC 245, that the past criminal history/antecedents disentitles an accused to be enlarged on bail, as under:-
"18. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and more particularly considering the fact that Respondent No. 2 is a history-sheeter and is having a criminal antecedent and is involved in the double murder of having killed the father and brother of the informant and the trial of these cases is at the crucial stage of recording evidence and there are allegations of pressurizing the informant and the witnesses, the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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impugned judgement and order passed by the High Court releasing Respondent No .2 on bail is absolutely unsustainable and the same cannot stand. The High Court has not at all considered the gravity, nature and seriousness of the offences alleged."
.
Likewise in the case of Bharwad Santoshbhai Sondabhai versus State of Gujarat and another 2023 SCC OnLine SC 1092, the Hon'ble Supreme Court has held as under:
8. In the present case, after repeated directions, an affidavit has finally been filed by the respondent No.1-State, listing the criminal antecedents of the respondent No.2 in r para 5 which is extracted herein below:-
Sr. Details of FIRs
No
1. FIR No. 11216025220323 of 2022 registered at Santej Police Station, Gandhinagar u/s 385, 147, 148, 323, 379, 504, 506(2), 511 r/w 120(B) of Penal Code, 1860.
2. FIR No.11216008210402 of 2021 registered under Section 65(A)(A), 66 (1)(B) of Gujarat Prohibition Act, 1949 at Sectior-7 Police Station Gandhinagar.
FIR No. 11192011200478 of 2020 registered
3. at Bhopal Police Station, Ahmedabad Rural u/s 188 of Penal Code, 1860 and 113 of Gujarat Police Act.
12. For the reasons noted above, we are of the firm opinion that the respondent No .2 was not entitled to any relief in the instant case. Respondent No.2 had remained in custody for barely six months (23rd September, 2021 to 18th February, 2022) before he was released on bail in respect ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime. Accordingly, the impugned order dated 18th February, 2022 is quashed and set-aside and respondent No.2 is directed to surrender .
forthwith before the trial Court."
In view of the mandate of the Hon'ble Supreme Court referred to above, once the past incident and past history of the instant bail petitioner is blemished, which is clear from earlier F.I.R which also relates to Section 21 of the NDPC Act, in which he has now been involved then the bail petitioner cannot be enlarged in these circumstances.
17(v). Now this Court proceeds to examine the gravity and severity of the accusation, offence against the bail petitioner. In the present case, it is the bail petitioner, who managed the entire show leading towards the sale, purchase, transport and inter-State import of the alleged contraband i.e. the heroin/chitta [weighting 49.03 gms] i.e. 39.70 gms and 9.33 gms was recovered by the Police from two persons [Rishab Sehgal and Anish Sonker], who were sent to Delhi to meet the Nigerian, at the behest of the bail petitioner, as referred to above.
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In terms of the NDPS Act and Schedule to the Act, any narcotic drug or psychotropic substances is categorized into small and commercial quantity. By .
interpretative process, any quantity which exceeds the specification(s) for "Smaller Quantity" but remains below the limit for "Commercial Quantity" has been categorized as "Intermediate Quantity". As per the Act and Schedule thereto, in case of Heroin/Chitta, the quantity upto 5 gms falls within "Small Quantity' and quantity exceeding 5 gms to below 249 gms comes within the ambit of "Intermediate Quantity".
In the instant case, the bail petitioner was involved in more than 49.03 gms of Heroin/Chitta, which is nine times more than the maximum prescribed limit for smaller quantity, for which the punishment stretches over to rigorous imprisonment for a period upto 10 years or with fine. Notably, the gravity of this street drug [heroin/chitta weighing 49.03 gms], is much more than the offences relating to murder, culpable homicide, rape, grievous hurt etc., for the reason, that in the case of rape or murder or ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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culpable homicide or grievous hurt etc., it can have adversarial and killing instinct on countable persons; but the harmful, injurious and dangerousity .
of heroin/chitta is more graver and its culpability is writ large. In view of the gravity of the alleged offence, as explained in case of Hira Singh [supra] coupled with the fact that it is the modus operandi of these persons, that they resort to peddling in small or intermediate quantity of contraband, hoping that the Court(s) liberally construe the alleged involvement in small or intermediate quantity for purpose of bail. Merely because the quantity allegedly involved is "Intermediate Quantity {49.03 grms of Heroin/Chitta}" the same shall ipso facto cannot confer a right or leverage or license for claiming or granting bail and the rule of law cannot be permitted to be scuttled, as in this case. Such nefarious-illegal drug trafficking and drug peddling and trading needs to be strictly dealt with and curbed, so that in coming times an uncontrollable adversial situation may not arise;
when, one may have to repent later.
Accordingly, the gravity of the alleged offence ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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in the instant case, restrains this Court, from showing any indulgence, at this stage.
17(vi). Enlargement on bail is likelihood to give .
rise to the similar offence(s) being repeated by the bail petitioner as has been done by him in the past, which shall certainly cause further damage and exploitation to the society at large.
17(vii). The grant of bail shall certainly lead to the cause of justice being thwarted by the bail petitioner by making the youth, unemployed or poor persons aspiring for income-financial needs and others to fall prey to such nefarious activities.
17(viii). The orders dated 19.03.2024 passed by the Learned Additional Sessions Judge, Solan, after due appreciation of the facts and circumstances, as well as the material on record, {including Status Report of State authorities} does not suffer from any infirmity.
17(ix). While deciding with a similar issue, in Parikshit Dhani versus State of Himachal Pradesh, Cr.MP(M) No.577 of 2024, decided on 27.03.2024, this Court has denied the bail in view of the prima facie accusation ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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and reasonable grounds pointing out towards involvement of the bail petitioner, therein, as under:-
"12. In considered view of this Court, admittedly even if the rigors of Section 37 of the .
NDPS Act are not applicable then also, the bail petitioner cannot seek leverage or licence to seek bail when, the contraband in question i.e. Heroin/Chitta of 5.65 grams was recovered from him. In case the benefit of enlargement of bail is extended to the petitioner, at this stage, therefore, the same may entail conferring advancement and extending licence to such illegal activities.
13. The modes operandi adopted by such peddlers who resort to drug trade, by adopting the modes operandi starting from r smallest or intermediate quantity, is based on their forcing the fact that even if they are apprehended they be enlarged on bail. Surely, this cannot be the object of the statute. Such drug peddlers, who involved in small or intermediate quantity of contraband, are the termites in the society. It is high time that while considering the bail application of such bail petitioners, who resort to small quantity or intermediate quantity trafficking etc. needs, to be dealt with by iron hands.
14. In this background, this Court is of the conscious of the fact that a balance has to be carved out between the liberty of the accused vis-à-vis the danger of the justice being throttled by release on bail of the bail petitioner. Learned Special Judge has also rightly held that once the contraband was seized/recovered from the bail petitioner, coupled with the fact that in case the bail is granted then, the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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danger of the justice being throttled by grant of bail is writ large in the instant case for the reason that such bail petitioners cause threat to the society and spoil the young generation at large.
15. Moreover, the enlargement of the bail .
petitioner from whom the contraband is recovered, if enlarged on bail, will entail every likelihood of committing the offence again for the reason that in Para 2 of the judgment the conduct of the bail petitioner who is involved in FIR No. 68 of 2021, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act and FIR No. 3 of 2023 under Section 21 of the NDPS Act have also been registered. This Court cannot feign ignorance to the fact that the registration of two additional FIRs in addition to the present FIR in r question reflects the conduct and behavior of the bail petitioner. In case such bail petitioners are enlarged on bail, it will definitely amount to conferring a licence and granting leverage to these bail petitioners to indulge in illegal activities, as has been done by the bail petitioner in the past also. The liberty of the bail petitioner, and the plea that Section 35 of the NDPS Act is not attracted, cannot in itself be a ground to claim bail [anticipatory or regular as of right] when, the prima facie accusation points out towards the involvement of the bail petitioner in the instant case. The registration of two additional FIRs, under the NDPS Act also point out towards the conduct behavior and modes operandi of the bail petitioner.
18. In view of the above discussion, and in the peculiar facts of the instant case, the prayer of the ::: Downloaded on - 19/04/2024 20:34:05 :::CIS
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petitioner, (Davinder @ Chhinda) for enlargement on bail, is without merit; and the same is accordingly, dismissed, at this stage.
.
19. As a sequel to the rejection of bail, this Court, directs the petitioner to surrender before the police and the bail bonds/surety bonds executed in pursuance to the order dated 20.02.2024 [interim bail] shall stand cancelled. In case, the petitioner fails to surrender, the
20. The r to State Authorities shall proceed in accordance with law.
observations made in this judgment shall not be construed in any manner as an indictive of findings, for the purposes of investigation and the proceedings thereafter, including the trial, if any against either of the parties herein.
In aforesaid terms, the instant petition and all the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.
(Ranjan Sharma) Judge April 10, 2024 (Chiranjeev) ::: Downloaded on - 19/04/2024 20:34:05 :::CIS