Himachal Pradesh High Court
Ashok Sharma vs State Of Himachal Pradesh on 5 June, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 755 of 2020 .
Reserved on : June 3, 2020
Date of Decision : June 5 , 2020
Ashok Sharma ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Vijender Katoch and Mr. Adhiraj Thakur,
Advocates, for the petitioner, through video
conferencing.
For the respondent : Mr. Ashwani Sharma, Mr. Nand Lal Thakur, Addl.
Advocate Generals, Mr. Ram Lal Thakur, Asstt. A.G. and Mr. Rajat Chauhan, Law Officer, for the respondent/State, through video conferencing.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge.
For possessing 52.71 grams of Heroin, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 89 of 2019, dated 6.12.2019, registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station Kandaghat, Distt. Solan, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
2. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to have telephonic instructions in the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 2matter from the concerned Police Station, and to procure status report immediately, either through WhatsApp/e-mail and forward the same to this Court on e-mail id [email protected] and also send the scanned copy or PDF .
copy of the status report to the learned Counsel for the petitioner on his WhatsApp number.
3. Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to Mr. Vijender Katoch, Advocate, learned Counsel for the petitioner on his WhatsApp number.
4. I have read the status report(s) and heard counsel for the parties through video conference.
5. Prior to the present bail petition, the petitioner had filed bail petition under Section 439 CrPC, before learned Special Judge-III, Solan, District Solan, HP. However, vide order dated 15.5.2020, passed in Bail Application No. 51ASJ- II/22 of 2020, the Court had dismissed the same.
FACTS
6. The gist of the First Information Report and the investigation is that on 6.12.2019, Police Party of Special Investigating Unit, Police Station Kandaghat, Distt. Solan, HP, was on patrolling duty to detect crime. At around 2.05 p.m. (day time), when the Police Party reached at a place known as Padotha Mor, on HH-5, then they received a secret information that two persons namely Ashok Kumar and Parveen Kumar are coming from Kandaghat to Mehta Petrol Pump side and that they have purchased Heroin from Delhi. The informant further revealed that in case they are nabbed then the police could recover Heroin from them. The Investigating Officer found this secret information to be authentic and after complying with the provisions of Section 42 of the NDPS Act proceeded towards Mehta Petrol Pump. On the side of the road, the Investigating Officer noticed two persons and on inquiry they revealed their names as Ashok Sharma (petitioner herein) and Parveen Kumar. After this the ::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 3 police officials made one vehicle stop and associated two of its occupants as witnesses. In their presence the police gave Ashok Sharma and Parveen Kumar an offer under Section 50 of the NDPS Act that they are apprehensive of their .
carrying contraband under the NDPS Act and they need to be searched. The said persons told them that they want their search to be conducted in the presence of a Magistrate. After this the Police contacted the Naib Tehsildar of Kandaghat and in his presence conducted the personal search of those persons. On search of petitioner Ashok Kumar, the police recovered one pouch wrapped with tape and on opening the same police noticed Heroin. The obtained substance was examined through the Drug Detection kit and found to be heroin and on weighment found to 52.71 grams. From the search of the co-accused Parveen the Police recovered four syringes and one broken spoon.
Subsequently, the police party seized the contraband, complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner.
PREVIOUS CRIMINAL HISTORY
7. As per the status report the following cases are registered against the petitioner:-
(i) Case FIR No. 90 of 2019, dated 7.12.2019, under Sections 224 read with 34 IPC, Police Station Kandaghat, Distt. Solan, HP; and
(ii) Case FIR No. 37 of 2019, dated 6.3.2019 under Section 21 of the ND&PS Act, Police Station Kandaghat, Distt. Solan, HP.
SUBMISSIONS:
8. The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. He further states that petitioner has to shoulder responsibility of his family and also submitted that his bail petition be considered on humanitarian grounds in view of the spread of the Covid-19 pandemic.
::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 4ANALYSIS AND REASONING:
9. Pre-trial incarceration needs justification depending upon the heinous .
nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
10. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
11. The following aspects are relevant to decide the present bail petition:
(a) As per the FIR, the substance involved is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, wherein the small quantity is lesser than 5 grams, whereas commercial quantity if greater than 250 grams.
(b) The quantity of drug involved is less than Commercial Quantity.
As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.
::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 5(c) Although there is criminal history of the bail petitioner, but keeping in view the current Covid-19 pandemic, the petitioner has come up before this Court on the grounds that his family is facing .
extreme financial difficulty and the family is extremely concerned about each other. Without this case being cited as a precedent, keeping in view the peculiar circumstances coupled with the fact that the Heroin recovered from the petitioner was just 52.71 grams, whereas, small quantity is lesser than 5 grams, and consequently the quantity involved in this case is close to small quantity, this Court is inclined to afford last opportunity to the Petitioner to mend his ways, making it very clear that in case, the petitioner repeats the offence under NDPS Act, irrespective of the quantity, be it small, then this bail shall automatically stand cancelled and it shall be open for the Investigating Officer to seek arrest warrants from the concerned Court. It shall also be a factor for future bail applications by the petitioner.
(d) The material aspect of the investigation is complete.
(e) The petitioner is in judicial custody since 6.12.2019.
(f) The petitioner is a permanent resident of address mentioned in the memo of parties i.e. Ashok Sharma son of Bal Krishan Sharma, resident of Village Kadaur, P.O. Anji, Tehsil Kandaghat, Distt. Solan, HP, therefore, his presence can always be secured.
(g) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity to secure presence during trial.
12. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents ::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 6 of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order:
(a) The petitioner shall furnish personal bond in the sum of Rs.
.
50,000/- (rupees fifty thousand only) with one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered.
(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437-A of the CrPC.
(c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc.
(d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever.
(e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).
(f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.
(g) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court.
(h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail or any other ::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 7 similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the .
petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.
(i) The petitioner shall attend the trial on each date, unless exempted.
(j) In case of non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
(k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.
(l) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity or if he ::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 8 commits any offence where the sentence prescribed is seven years or more, then this bail order shall stand cancelled automatically and the State shall file application for cancellation of the bails in FIR No. 37 of .
2019, registered at Police Station Kandaghat, Distt. Solan, HP.
(m) The petitioner shall surrender all firearms along with ammunition, if any, and the arms license to the concerned authority within 30 days from today.
(n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.
(o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail.
13. In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be.
14. The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.
15. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.
16. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the aforesaid terms.
::: Downloaded on - 05/06/2020 20:21:52 :::HCHP 917. The Court attesting the bail bonds shall ascertain the identity of the bail- petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, etc., Pan .
Card and Passport if available, on the reverse page of the bonds. The petitioner shall also furnish details of personal bank account(s).
18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation.
19. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner.
20. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
21. The petition stands allowed in the terms mentioned above.
22. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record.
The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.
(Anoop Chitkara), Judge.
June 5 , 2020 (PK) ::: Downloaded on - 05/06/2020 20:21:52 :::HCHP