Himachal Pradesh High Court
Mahinder Kumar vs State Of H.P on 5 March, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.MP(M) No. 357 of 2021
Date of decision: March 05, 2021.
Mahinder Kumar ......Petitioner.
Versus
State of H.P. .....Respondent.
Coram
Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner : Mr. H.S. Rangra, Advocate.
For the respondent : Mr. Anil Jaswal, Addl. AG with Mr. Amit
Kumar Dhumal, Dy. AG and Manoj
Bagga, Asstt. AG.
ASI Dev Dutt, I/O Police Station, Janjehli,
District Mani, in person.
Jyotsna Rewal Dua, Judge (Oral)
The petitioner is co-accused in FIR No 64/2020, lodged under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered on 27.6.2020, at Police Station, Janjehli, District Mandi. He was arrested on 5.12.2020 and through instant petition prays for grant of regular bail.
2. I have heard learned Counsel for the parties, perused the status report and gone through the record produced today by the respondent-State.
1Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 23 Prosecution case in relation to registration of FIR is that:-
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3(i) A police party was on routine patrolling duty on 27.6.2020 near 'Chhachgalu' when at round 3:00 P.M. it noticed a person coming towards 'Chhattri' road holding a backpack in his right hand. Seeing the police personnel, the person became perplexed, threw his backpack alongside the road and started nabbed him.
r to running towards Chhatri road. These actions raised suspicion of the police personnel who gave him a chase and eventually The backpack thrown by him was retrieved and after associating two persons as independent witnesses, search of the backpack was carried out, which led to recovery of 1.730 Kg. Cannabis. During the search and seizure, the procedure prescribed in law was followed. The recovery led to registration of instant FIR. The person (Jagdish Kumar) was arrested on 27.6.2020 under Section 20 of NDPS Act.
3(ii) During investigation, said Shri Jagdish Kumar statedly disclosed that he alongwith one other person (Manu), who had come to work in village Kholi at the house of Shri Gian Chand, had gone on motor cycle No. HP-32-B-1978 on 27.6.2020 from Kholi to Chhachgalu for the purpose of purchasing cannabis. He had purchased the cannabis from Mahinder Kumar (bail petitioner) at village Vishlala. Manu Kumar had thereafter left the place.
::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 33(iii) The investigating agency also procured the call detail reports of the mobile numbers belonging to main accused Jagdish .
Kumar and the bail petitioner, which disclosed exchange of many calls between the two on 26/27.6.2020.
3(iv) As per the record and status report, further investigations revealed that the motor cycle used by the bail petitioner and Manu belonged to one Gir Singh son of Shri Narayan Singh.
Shri Gir Singh and Shri Gian Chand in their statements recorded under Section 161 Cr.P.C. stated that Manu son of Shri Prem Singh was cousin brother of Gir Singh and he had come to village Kholi for work. On the day of alleged incident, he had taken the said motor cycle from the Panchayat Ghar at Kholi and drove it towards Chhachgalu. Said Shri Manu Kumar from that day onwards went missing. Eventually, it transpired that he had died on 18.7.2020 near Sisoo, District Lahaul and Spiti.
3(v) The petitioner who statedly had absconded could be arrested only on 5.12.2020. He also got recorded his statement under Section 27 of Indian Evidence Act inter alia to the effect that he had called the main accused on phone and that he had supplied cannabis to the main accused Jagdish Kumar.
4. Learned Counsel for the petitioner submitted that petitioner has been falsely implicated with the offence alleged against him. In fact, the petitioner in the capacity of a ::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 4 photographer had attended a function organized by the main accused Jagdish Kumar and he had, therefore, called said Jagdish .
Kumar for claiming his remuneration towards photography of the event. He further submitted that petitioner will abide by all the terms and conditions, which may be imposed upon him in case of enlargement on bail.
Per contra, learned Additional Advocate General while opposing the bail petition submitted that petitioner is guilty of selling commercial quantity of the contraband to the main accused. Evidence about involvement of petitioner is available on the record, therefore he be not enlarged on bail.
5. The case against the petitioner is that he had supplied 1.730 Kg. cannabis to main accused. The quantity involved is commercial. Therefore, provisions of Section 37 of NDPS Act will be attracted, which reads thus:-
"37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for [offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 5
In this regard, Hon'ble Apex Court in AIR 2020 SC .
721, State of Kerala Etc. Versus Rajesh Etc. , held as under vide paras 19 to 21:-
"19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:-"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable 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, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied.
The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should ::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 6 implement the law in the spirit with which Parliament, after due deliberation, has amended."
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20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with nonobstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act s indeed uncalled for."
In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in Section 37:-
(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail.
As per the case of the prosecution commercial quantity of 1.730 Kg. of cannabis was recovered from main accused Jagdish Kumar, who during investigation stated to have purchased the recovered cannabis from the bail petitioner. The ::: Downloaded on - 05/03/2021 20:20:03 :::HCHP 7 main accused was arrested on 27.6.2020. The bail petitioner (alleged supplier) thereafter went missing and could be arrested .
by the police only on 5.12.2020. From the facts as they emerge from record, the perusal of the call detail reports of the mobile phones belonging to main accused and the petitioner and the statement of the bail petitioner recorded under Section 27 of Indian Evidence Act, at this stage it cannot be said that there are reasonable grounds to believe that the petitioner is not guilty of the offence alleged against him. The petitioner, therefore, has not been able to make out a case for grant of bail. Accordingly instant bail petition is dismissed reserving liberty to the petitioner to file the petition afresh in accordance with law at an appropriate stage.
It is clarified that observations made above are confined only to the adjudication of petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations.
Jyotsna Rewal Dua Judge.
March 05, 2021 (vs) ::: Downloaded on - 05/03/2021 20:20:03 :::HCHP