Himachal Pradesh High Court
Kapil Garg vs State Of Himachal Pradesh on 25 August, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1091 of 2017
Date of Decision No.25.08.2017
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Kapil Garg ........ 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 petitioners: Mr. Satyen Vaidya, Senior Advocate,
with Mr. Vivek Sharma, Advocate.
For the respondent: Mr. P.M.Negi, Additional Advocate
General, with Mr. R.K.Sharma, Deputy
Advocate General.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
By way of instant petition filed under Section 439 Cr.P.C, prayer has been made for grant of bail in case FIR No. 98 of 2015, dated 27.12.2015 under Sections 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act ( for short "Act") registered at Police Station, Kala Amb, District Sirmaur, Himachal Pradesh.
2. Sequel to order dated 18.08.2017, ASI Dilbag Singh, Police Station, Kala Amb, District Sirmaur, has come present in Court alongwith the record. Record perused and returned.
3. Perusal of the aforesaid status report/reply reveals that on 26.12.2015, police party while on traffic checking had laid nakka at Trilokpur road. At about, 10:30 PM, one vehicle (Duster 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 2car) bearing registration No.HR-54A-9627 came from Trilokpur side, wherein two persons were sitting. On inspection/checking of the aforesaid vehicle, one carton box and gunny bag containing .
175 bottles of Corex Cough Syrup, 480 tablets of Nitrazepam containing Nitravet-10 Mg and 4320 capsules of Spasmo Proxyvon plus and a powder like substance approximately 943 grams were recovered from the dicky of the car. Since bail petitioner failed to produce any permit to carry the same, FIR as mentioned above, came to be registered against him under Section 21 & 29 of the Act. It also emerge from the record that since 27.12.2015, bail petitioner is in judicial custody. Petitioner has also made available report of FSL Junga, relevant portion, whereof is reproduced as under:-
"Results of the examination Corex Cough Syrup Various scientific tests such as physical identification, chemical tests, Chromatographic as well as quantitative analyses of Codeine phosphate were carried out in the laboratory with the exhibit stated as Corex Cough Syrup in cloth parcel marked in the laboratory as 'A' under reference with representative & homogeneous sample. The above tests performed indicated the presence of codeine phosphate in the sample of Corex Cough Syrup. On its quantitative analysis, codeine phosphate was found to be 1.981mg per/ml in 100ml bottle of Corex Cough Syrup. The result thus obtained is given below:
Codeine Phosphate is present in the exhibit stated as Corex Cough Syrup in cloth parcel marked in the laboratory as 'A'.::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 3
NITRAVET-10 Various scientific tests such as physical identification, chemical and chromatographic analysis as well as quantitative analysis were carried out in the .
laboratory with the exhibit stated as tablets of Nitravet-10 in cloth parcel marked in the laboratory as 'B' under reference. The above tests performed, indicated the presence of Nitrazepam in the exhibit stated as Nitravet-10. On quantitative analysis, the amount of Nitrazepam was found to be 9.83mg per tablet in the exhibit stated as Nitravet-10. The result thus obtained is given below:-
The exhibit stated as Nitravet-10 in cloth parcel marked in the laboratory as 'B' is a sample of Nitrazepam tablets.
RED POWER Various scientific tests such as physical identification, chemical, chromatographic and UV-Via spectrophometric analysis were carried out in the laboratory with the exhibit stated as red power under reference. The above tests performed, indicated the presence of Mecobalamin (type of Vitamin B-12) in the exhibit. The result thus obtained is given below:-
The exhibit stated as red power is neither a sample of narcotic drugs nor psychotropic substances as mentioned in as mentioned in the schedules and notifications of NDPS Act, 1985
4. It may be noticed that aforesaid report submitted by SFSL Junga has not been disputed by the police in its status report, rather, same has been acknowledged. As per status report, Challan against petitioner under Sections 21 & 29 of the Act, stands filed in the competent court of law on 15.3.2016 and petitioner is in judicial custody since 27.12.2015.::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 4
5. Mr. Satyen Vaidya, Senior Advocate duly assisted by Mr. Vivek Sharma, Advocate representing the petitioner, while inviting attention of this Court to report submitted by SFSL Junga, .
contended that the psychotropic substance i.e. Codeine Phosphate and Nitrazepam are of 'small quantity'. Mr. Vaidya, further contended that as per report of FSL, prohibited drug namely Codeine Phosphate has been found to be 1.981 mg/ per ml in 100 ml bottle of Corex and Nitrazepam has been found 9.83 mg per tablet meaning thereby, quantity, if taken into consideration qua all the recovered 175 bottles of Corex, 480 tablets of Nitrazepam and 4320 capsules of Spasmo Proxyvon plus, comes to less than 'small quantity' and as such petitioner is entitled to be released on bail. Learned counsel further contended that only psychotropic substance contained in the bottle 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 bottle. Mr. Vaidya, further contended that petitioner is in custody since 27.12.2015 and more than 18 months have passed and in case, it is presumed that petitioner has violated Sections 20 and 21 of the Act, even in that eventuality one year imprisonment is provided for contraband of 'small quantity'. While concluding his arguments, Mr. Vaidya 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., ::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 5 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.
6. Mr. P.M. Negi, learned Additional Advocate General, .
while inviting attention of this Court to status report, as referred above, opposed the aforesaid 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 falls within 'commercial 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 "exhibit stated as Corex is a sample of "Codeine Phosphate", and Nitravet-10 is a sample of Nitrazepam tablets, as such, by no stretch of imagination, it can be contended that contraband /psychotropic substance recovered from the petitioner is of 'small quantity'.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. In the instant case, as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 1.981 ::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 6 mg/ml in 100 ml bottle and drugs namely Nitrazepam tablets has been found 9.83 mg per tablet, meaning thereby, quantity of prohibited drug, if taken into consideration qua 175 bottles, 487 .
tablets of Nitrazepam and 4320 capsules of Spasmo Proxyvon plus allegedly recovered from the petitioner, comes out to be less than 'small quantity'. SFSL, while concluding that 1.981 mg/ml Codeine Phosphate has been found in 100 ml bottle and 9.83 mg Nitrazepam is found in per tablet, has nowhere rendered any opinion with regard to remaining contents/mixture contained in the bottle of Corex Cough Syrup and tablet namely Nitravet-10, hence, inference can be drawn that 'small 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.
9. Indisputably, investigation in the present case is complete and challan stands filed before the competent Court of law on 15.03.2016. This Court cannot lose sight of the fact that petitioner is in custody since 27.12.2015 and more than 18 ::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 7 months have passed and as such he is entitled 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.
10. 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: r
(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;
(viii) reasonable apprehension of the witnesses being influenced; and
(ix) danger, of course, of justice being thwarted by grant of bail.
11. 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 Rs.1.00 Lakh ::: Downloaded on - 26/08/2017 22:56:03 :::HCHP 8 with 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.
12. 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.
13. 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 this application alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma), Judge.
25th August, 2017 (shankar) ::: Downloaded on - 26/08/2017 22:56:03 :::HCHP