Himachal Pradesh High Court
Jai Bahadur Alias Raju vs State Of H.P on 23 May, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP (M) No. 592 of 2017
Date of Decision: 23.05.2017
.
Jai Bahadur alias Raju .........Petitioner.
Versus
State of H.P. .....Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Deepak Kaushal, Advocate.
For the Respondent: Mr. P.M. Negi & Mr. M.L. Chauhan,
r Additional Advocate Generals.
Sandeep Sharma, J (oral)
By way of present petition filed under Section 439 of the Code of Criminal Procedure, petitioner has prayed for grant of regular bail in case FIR No.159 of 2016, dated 24.12.2016, registered at Police Station, Sadar Nahan, District Sirmaur, H.P., under Sections 21-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ( hereinafter referred to as the Act) .
2. Sequel to order dated 19.5.2017, HC Pankaj Chandel No. 68, SIU Nahan, District Sirmaur, H.P., has come present in Court alongwith the record. Record perused and returned.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 23. Perusal of status report/reply made available on record by the police suggest that on 24.12.2016 bail petitioner was caught/nabbed while carrying 12 bottles of Corex without there being any permit. Accordingly, FIR as .
mentioned above came to be registered against him under Section 21-61-85 of the Act. It also emerge from the record that since 24th December, 2016, bail petitioner is in judicial custody. Pursuant to aforesaid recovery of psychotropic substance from the petitioner, bottles so recovered from the petitioner were sent to State Forensic Science Laboratory, Himachal Pradesh Shimla, Junga for chemical analysis. The State Forensic Science Laboratory in its report has concluded that "Codeine Phosphate is present in the exhibit as Corex". It also emerge from the record that challan stands presented in the competent Court of law on 21st March, 2017,
4. Mr. P.M.Negi, learned Additional Advocate General, while inviting attention of this Court to the status report/reply, as referred hereinabove, opposed the prayer having been made by the learned counsel representing the petitioner for grant of bail. Learned Additional Advocate General, contended that contraband/psychotropic substance recovered from the petitioner falls within the commercial quantity and as such, no leniency can be ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 3 shown while considering the petitioner's prayer for grant of bail.
5. Mr. Deepak Kaushal, learned counsel representing the petitioner while making prayer for grant of .
bail in favour of the petitioner invited attention of this Court to the judgment passed by the Co-ordinate Bench of this Court in Cr.MP (M) No.432 of 2017, titled as Ankush Chauhan versus State of H.P., decided on 25th April, 2017 as well as in Cr.MP(M) No.817 of 2016, titled as Prashant Chauhan versus state of H.P, decided on 15th July, 2016 and contended that only psychotropic substance contained in the bottle(s) is required to be taken into consideration while determining the quantity of prohibited drug i.e. "Codeine Phosphate" and not the whole mixture contained in the recovered bottles of Corex.
While specifically referring to the report submitted by SFLS, learned counsel representing the petitioner contended that as per report only 2.006mg "Codeine Phosphate" has been found in one bottle of 100 ml of Corex and as such, quantity if taken into consideration qua all the recovered 12 bottles is definitely less then small quantity and as such, petitioner is entitled to be released on bail.
::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 46. Lastly, learned counsel representing the petitioner, contended that the bail petitioner is in custody since 24th December, 2016 and more than five months have passed and even if for the sake of argument it is .
presumed that petitioner has violated provision as contained in Section 21 of the Act, maximum sentence of one year is provided under the Act, if contraband is of small quantity.
7. Mr. P.M.Negi, learned Additional Advocate General, while refuting the aforesaid submission having been made by the learned counsel for the petitioner, contended that as per settled law entire material contained in the recovered bottles is required to be taken into consideration while determining the quantity of psychotropic substance. Mr. Negi, further contended that if the report of SFSL is read in its entirety, it has been clearly concluded that "Codeine Phosphate is present in the exhibit stated as Corex", and as such, by no stretch of imagination, it can be argued that the contraband/ psychotropic substance recovered from the petitioner-
accused is of small quantity. With a view to substantiate his aforesaid argument, Mr. Negi, invited attention of this Court to the judgment rendered by Hon'ble Full Bench of ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 5 this Court in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R. (FB) 1834.
8. Apart from above, Mr. Negi, also placed reliance upon the judgments passed by the Co-ordinate Bench of .
this Court in Cr.M.P.(M) No.450 of 2016, titled as Praduman Justa versus State of Himachal Pradesh, decided on 8th July, 2016, as well as in Cr.M.P(M) No.502 of 2014 titled Om Pal versus State of Himachal Pradesh, decided on 6.5.2014 to suggest that entire contraband/ psychotropic substance allegedly recovered from the petitioner-accused is required to be taken into consideration while determining the quantity of prohibited drug.
9. I have heard learned counsel for the parties and gone through the records of the case carefully.
10. Before adverting to the merits of the contentions/ submissions having been made by the learned counsel for the parties as well as law cited hereinabove, this Court deems it fit to take note of the relevant portion of the judgment passed by the Hon'ble Full Bench of this Court in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R.(FB) 1834, wherein it has been held as under:-
e) .......... The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 6 with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to .
be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.
f)........ When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants.
The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a handmade drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act."
11. After having carefully perused the aforesaid judgment rendered by the Hon'ble Full Bench of this Court, there cannot be any dispute that while determining the ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 7 quantity of contraband/psychotropic substance, entire contraband allegedly recovered from the accused is required to be taken into consideration for determining the quantity of psychotropic substance. But, if aforesaid .
judgment rendered by the Hon'ble Full Bench is read in its entirety, Hon'ble Full Bench has specifically concluded/observed that legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. In the case referred hereinabove, dispute was whether whole bulk charas allegedly recovered from the accused is/was required to be taken into consideration while determining the quantity of the same or resin, if any, is/was to be excluded.The Hon'ble Full Bench in the aforesaid judgment has specifically concluded that even separated resin is cannabis resin and as such, whether it is in 'purified' form or in 'crude' form is required to be taken into consideration while determining the quantity. As far as the judgment passed by Full Bench of this Court in Mehboob Khan case supra is concerned, it has been specifically held that entire plant of cannabis or the material, if any, extracted from any part of cannabis plant is required to be included while ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 8 determining the quantity of charas/contraband. The Hon'ble Full Bench has further held that once expert expressed the opinion that after conducting the required test, he/she found the resin present in the stuff and as .
charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can be found in the opinion.
12. At the cost of repetition, this Court after having perused the judgment passed by the Hon'ble Full Bench of this Court in Mahboob Khan case supra, wish to observe that Hon'ble Full Bench while holding that the entire plant of cannabis and the material, if any, extracted from any part of cannabis plant is required to be included while determining the quantity of charas/contraband, has definitely carved out a distinction that mixture, if any, in the recovered contraband proves to be of some other neutral substance and not that of other parts of the cannabis plant, same is required to be excluded while determining the quantity of contraband.
13. At this stage, it would be profitable to reproduce State Forensic Science Laboratory report herein:-
"Various scientific tests such as physical identification, chemical tests, chromatographic as well as quantitative analysis were carried ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 9 out in the laboratory with the exhibit stated as Cores under reference with representatives & homogeneous sample. The above tests performed indicated the presence of codeine phosphate in the sample of Corex. On its .
quantitative analysis, codeine phosphate was found to be 2.006 mg per/ml in 100 ml bottle of Corex. The result thus obtained is given below:-
Codeine Phosphate is present in the exhibit stated as Corex."
14. As per aforesaid report of SFSL, "codeine phosphate i.e. prohibited drug, was found to be 2.006 mg per/ml in 100 ml bottle of Corex, meaning thereby, in one recovered bottle of Corex, quantity of prohibited drugs is 2.006 mg, which if taken into consideration of all 12 recovered bottles comes out to be less then small quantity.
It may be noticed that SFSL, while concluding that 2.006 mg Codeine Phosphate is found in per/ml in 100 ml bottle of Corex, has nowhere rendered any opinion qua the remaining contents/mixture contained in the one bottle of Corex. Hence, in the absence of the same only inference can be drawn that small quantity of Codeine Phosphate i. e. 2.006 mg is present in 100 ml bottle of Corex.
15. This Court after having carefully perused the judgments passed by the Coordinate Bench of this Court in Ankush Chauhan & Prashant Chauhan case supra finds that similar view as of this Court has been taken while ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 10 granting bail on similar facts and circumstances, wherein admittedly bottles of Corex were recovered.
16. Undisputedly, the aforesaid aspect of the matter is required to be considered/examined in detail by the .
trial Court during the course of the trial. But perusal of notification issued by the Central Government in exercise of the powers vested in it under clause (VII-A) and (XXII-A) of section 2 of the Act, suggest that it has prescribed small quantity as 10 grams qua the drugs namely "Codeine", whereas commercial quantity has been prescribed as one kilogram and above. In the instant case, where admittedly quantity of prohibited drug i.e." Codeine Phosphate" is less then small quantity as clearly emerge from the report of the SFSL and as such , rigors of Section 37 of the Act, are not attracted in the case at hand.
17. Apart from above, Mr. Negi, learned Additional Advocate General, under instructions, fairly stated that investigation in the case is complete and matter is pending before trial Court for framing of charge and as such, this Court is of the view that custodial interrogation of the petitioner is not required. Moreover, petitioner is in custody for the last five months and as such, he deserves to be released on bail. Otherwise also, normal rule is bail and not jail. Court while granting bail, has to keep in mind the ::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 11 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 indulged in that crime. In the .
instant case, petitioner accused has fully cooperated with the investigating agency during the investigation and there is no likelihood of his fleeing from the trial. Apart from above, he is local resident of the area and his presence can be secured during the trial at any time.
18. The Hon'ble 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, which deciding petition for bail:-
(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, behavior, means, position and standing of the accused;
(vi) Likelihood of the offence being repeated;
(vii) Reasonable apprehension of the witnesses being influenced; and
(viii) Danger, of course, of justice being thwarted by grant of bail.::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 12
19. Consequently, in view of the detailed discussion made hereinabove, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 50,000/-
.
(rupees fifty thousand) with one surety in the like amount to the satisfaction of the Court concerned. He shall further abide by the following conditions:-
(i) That he shall join the interrogation as and when called upon to do so and regularly attend the trial court on each and every date of hearing. If prevented by any reason to do so, shall seek exemption from r appearance by filling appropriate application;
(ii) That he shall not tamper with the
prosecution evidence nor hamper the
investigation of the case, in any manner, whatsoever;
(iii) That he shall not make any inducement, threat or promise 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 Investigating Officer;
(iv) That he shall not leave the territory of India without the prior permission of the Court.::: Downloaded on - 26/05/2017 00:00:00 :::HCHP 13
20. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the Investigating Agency shall be free to move this Court for cancellation of the bail.
.
21. The observations made hereinabove shall remain confined to the disposal of this petition and shall have no bearing on the merits of the case. The application stands disposed of.
Copy dasti.
(Sandeep Sharma),
r Judge.
23rd May, 2017
(shankar)
::: Downloaded on - 26/05/2017 00:00:00 :::HCHP