Himachal Pradesh High Court
Ankit Kumar vs State Of H.P on 11 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP (M) No. 864 of 2019
Date of Decision: 11.09.2019
.
Ankit Kumar .........Petitioner.
Versus
State of H.P. .....Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. K.S.Banyal, Senior Advocate
r with Mr.Rajesh Kumar Parmar, Mr.
Vijender Katoch and Mr. Inder Rana,
Advocates.
For the Respondent: Mr. Sumesh Raj & Mr. Sanjeev Sood,
Additional Advocate Generals.
HC Desh Raj present in person.
Sandeep Sharma, J (oral)
Bail petitioner namely, Ankit Kumar, who is behind the bars since 27.4.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.110/2019, dated 27.4.2019, registered at police Station, Baddi, District Solan, Himachal Pradesh, under Section 21 of the Narcotic 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 2Drugs & Psychotropic Substances Act ( For short ' Act') .
Status report based upon the investigation carried out by the Investigating Agency is already on record. Record .
perused and returned.
2. Close scrutiny of the record/ status report reveals that on 27.4.2019, police party stopped motorcycle bearing registration No. HP12K7928 being driven by the present bail petitioner for checking. Since, bail petitioner got perplexed, police party asked him to gave search of his rucksack. Allegedly, police party in the presence of independent witness namely, Lakhvinder Singh recovered 117 strip of prohibited drugs namely, Tramadol (1170 pills) and 12 strips of Lomotil (total 720 pills). Since, bail petitioner, who otherwise is a Chemist, failed to produce permit/ licence qua the above named drugs allegedly recovered from him. Police after completion of the necessary codal formalities, registered a case under Sections 216185 of the Act, against the bail petitioner and thereafter took him into custody on 27.4.2019 and since then he is behind the bars. RespondentState has ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 3 also made available report of FSL Junga, relevant portion, whereof is reproduced as under: "Results of the examination .
LOMOTIL Various scientific tests such as physical identification, chemical, chromatographic, UV Spectrophotometric & HPLC analyses were carried out in the laboratory with the exhibit stated as tablets of Lomotil with representative & homogeneous sample. The above tests performed, indicated the presence of Diphenoxylate hydrochloride & Atropine Sulphate in the exhibit. On its quantitative analysis, Diphenoxylate hydrochloride was found to be 2.49 mg per tablet & Atropine Sulphate was found to be 0.026 mg per tablet. The result obtained is given below.
The exhibit stated as Lomotil is a sample of Diphenoxylate hydrochloride & Atropine Sulphate tablet.
TRICARESR Various scientific tests such as physical identification, chemical, Chromatographic & spectrophotometric analyses were carried out in the laboratory with the exhibit TricareSR tablets Tramadol), with representative & homogeneous sample. The above tests performed, indicated the presence of Tramadol hydrochloride, in the exhibit. On quantitative analysis, the amount of Tramadol Hydrochloride was found to be 99.61 mg per tablet in the exhibit TricareSR tablets ( stated as Tramadol). The result thus obtained is given below:
The exhibit TricareSR tablets( stated as Tramadol) is a sample of sample of Tramadol Hydrochloride tablets.::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 4
3. Mr. Sumesh Raj, learned Additional Advocate General, on the instructions of police Official, who is present in Court, fairly states that challan in the case .
stands filed in the competent Court of law. He states that though nothing remains to be recovered from the bail petitioner, but till date he has not disclosed the source from where he allegedly purchased the prohibited drugs recovered from his rucksack. While opposing the prayer made on behalf of the bail petitioner for grant of bail, learned Additional Advocate General strenuously argued that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely.
4. Mr. K.S.Banyal, learned Senior Counsel representing the bail petitioner while inviting attention of this Court to the judgment dated 17.7.2017 passed by this Court in Cr.MP(M) No. 792 of 2017, contended that drugs namely "lomotil" does not fall in the definition of manufactured drugs, as defined under Section 2(xi) of the Act. He also invited attention of this Court to the ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 5 notification bearing No. S.O. 826(E), dated 14.11.1985, S.O.49(E), dated 29.1.1993 and S.O.1431(E), dated 21.6.2011, to demonstrate that preparations of .
Diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate does not fall under definition of manufactured drugs, as notified vide notification referred hereinabove.
5. to Mr. Banyal, further contended that apart from above, psychotropic substance i.e. Diphenoxylate hydrochloride tablets allegedly recovered from the bail petitioner is less then small quantity. He further contended that as far as Tramadol is concerned, same is of intermediate quantity and as such, rigour of Section 37 are not attracted in the present case. He further contended that for the last four months bail petitioner is behind the bars and there is none at his home to take care of his widow mother. Lastly, Mr. Banyal, contended that there is no material adduced on record by the Investigating Agency suggestive of the fact that the bail petitioner had been indulging in such activities in past ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 6 also and as such, he being first offender deserve to be enlarged on bail.
6. Having heard learned counsel representing the .
parties and perused the material available on record, this Court finds that it having taken note of definition of manufactured drugs as contained under section 2(xi) of the Act as well as notifications bearing No. S.O. 826(E), dated 14.11.1985, S.O.49(E), dated S.O.1431(E), dated 21.6.2011, has already held vide r 29.1.1993 and judgment dated 17.7.2017, passed in Cr.MP(M) No.792 of 2017 that tablet "lomotil" does not fall in the definition of manufactured drugs as notified by the Government of India by way of notifications, as referred hereinabove.
7. In this regard, it would be apt to take note of following paras No. 9 to 15 of the aforesaid judgment: "9. In the instant case, as per report of SFSL, prohibited drug namely "Diphenoxylate hydrochloride" has been found to be 2.492 mg per tablet, meaning thereby quantity of prohibited drug, if taken into consideration qua 12000 tablets allegedly recovered from the petitioner, comes out to be 29.754 grams i.e. above than small quantity and less than commercial quantity'.SFSL, while concluding that 2.492 mg Diphenoxylate hydrochloride has been found per tablet, has nowhere rendered any opinion with regard to ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 7 remaining contents/mixture contained in the tablet namely lomotil, hence, inference can be drawn that 29.754 grams Diphenoxylate hydrochloride is present in recovered tablets.
10. Mr. Kapil Sharma, Assistant Director SFSL, .
categorically stated before this court that though average weight of tablet namely "lomotil" was found 63.0 mg and as such. if this weight is taken into consideration qua all recovered tablets 11940, total weight of tablets comes around 752.20 grams. Mr. Kapil Sharma, fairly stated before this court that if pure drugs i.e. Diphenoxylate hydrochloride is taken into consideration then quantity of the same qua 11940 tablets comes to be 297.54 grams, which is more than small quantity and less than r commercial quantity. 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.
11. This Court after taking note of the submissions made by Mr. Chandel, learned counsel for the petitioner that the tablet i.e. 'lomotil' does not fall under the definition of manufactured narcotic drugs, as notified by the Government of India by way of separate notification, as referred above, carefully perused notification, referred above, wherein at Sr. No.58, it has been stated as under: " Elthy1 1(3 Cyano3, 3diphenylpropy)4 - phenylpiperidine4carboxylic acid ethyl ester(the international nonproprietary name of which is ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 8 Diphenoxylate) and its salts and preparations, admixture, extracts or other substances containing any of these drugs except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate.
.
12. Careful perusal of aforesaid entry at Sr. No.58 in the notification, as referred hereinabove, clearly suggests that Diphenoxylate and its salts and preparations, admixture, extracts or other substances containing any of these drugs are manufactured narcotic drugs, but save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine Sulphate equivalent to at least one percent of the dose of Diphenoxylate. Mr. Chandel, while referring to the report submitted by SFSL, contended that drugs namely Diphenoxylate hydrochloride has been found to be 2.5 mg per tablet and similarly quantity of Atropine 0.025 mg i.e. 1% of dose of Diphenoxylate hydrochloride has been also found in each tablet, meaning thereby tablet namely 'lomotil' having Diphenoxylate hydrochloride 2.5 mg does with 0.025 mg of Atropine sulphate does not fall under the definition of manufactured narcotic drugs and as such, does not come under the preview of NDPS Act.
13. At this stage, it would be profitable to reproduce Section 2(xi) of the Act, herein: "Manufactured drugs" means:
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 9 the Official Gazette, declare to be a manufactured drugs;
14. Careful perusal of aforesaid provisions of law suggest that all the coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate any other narcotic .
substance or preparation which central government may notify in the official Gazette would be termed as manufactured drugs, but it further suggests that it will not include any narcotic substance or preparation which the central government may having regard to the available information or to a decision, if any, under any International Convention by notification in the Official Gazette, declared not to be manufactured drugs. Aforesaid provisions of law, clearly suggest that narcotic substance or preparation declared by central government by issuing notification in the official gazette shall only be deemed to be manufactured drugs save and except of coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate, as prescribed under Section 2(xi) of the Act. Aforesaid provisions of law i.e. section 2(xi((b), certainly suggest that narcotic substance or preparations not included in the notification, if any, issued by the central government declaring certain narcotic substance or preparation to be manufactured drugs shall not be considered as manufactured drugs in terms of Section 2(xi) of the Act. In the instant case, entry made at Sr. No.58 of notification, as referred above, certainly suggests that Diphenoxylate hydrochloride and its slats and preparation and admixture, extracts or other substances containing any of these drugs are to be treated as manufactured narcotic drugs save and except preparations of Diphenoxylate calculated as base, and a quantity of Atropine sulphate equivalent to at least one percent of the dose of Diphenoxylate.
::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 1015. In the present case, as has been taken note of above, Diphenoxylate hydrochloride 2.5 mg has been found in one tablet, whereas Atropine sulphate 2.025 mg i.e 1 % of dose of Diphenoxylate hydrochloride has been found .
in the tablet namely lomotil. Though, this court after having carefully perused the aforesaid provisions of law as well as entry contained at Sr. No.58 of the notification, sees substantial force in the arguments of Mr. N.S.Chandel, learned counsel representing the petitioner that tablet namely lomotil does not fall under the definition of manufactured drugs, as defined under Section 2(xi) of the Act, but aforesaid aspect of the matter shall be considered/examined in detail by trail court r during the course of trial."
8. As far as 1170 tablets of tramadol recovered from the conscious possession of the bail petitioner is concerned, same definitely falls under the category of prohibited drugs. But as per notification dated 26 th April, 2018, quantity less then 5 gm has been defined as small quantity, whereas quantity more than 250 grams has been termed to be commercial quantity. In the case at hand, as per the report of FSL, Junga Tramadol Hydrochloride has been found to be 99.61 mg per tablet, meaning thereby, in total 99.61mg x1170=116.5437 grams Tramadol Hydrochloride has been found from the ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 11 conscious possession of the bail petitioner, which in any eventuality is a intermediate quantity.
9. Undisputedly, the challan stands filed in the .
competent Court of law. Though offence alleged to have been committee by the bail petitioner is of serious nature, but this Court having taken note of age of the bail petitioner, who is stated to be 23 years old, coupled with the fact that he is behind the bars since 27.4.2019, sees no reason to let bail petitioner incarcerate in jail for indefinite period. As has been noticed hereinabove, there is none to look after widow mother of bail petitioner. Since contraband i.e. Tramadol allegedly recovered from the bail petitioner is also of intermediate quantity, rigour of Section 37 are not attracted in the present case and as such, freedom of bail petitioner whose guilt, if any, is otherwise yet to be ascertained/determined by the Court of law on the basis of cogent and convincing evidence, if any, led on record by the Investigating Agency, cannot be allowed to curtail for indefinite period, during trial.
Moreover, no material has been placed on record by the Investigating Agency suggestive of the fact that bail ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 12 petitioner had been indulging in these activities in past also and there is likelihood of him indulging in these activities again in case he is ordered to be enlarged on bail .
and as such, petitioner being first offender deserve leniency.
10. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.
11. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr.,decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 13 officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the .
investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
r to
2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 14 country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the .
accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 15 several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading .
to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons
12. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under: " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 16 the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of .
disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
13. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.
14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 17 496, has laid down the following principles to be kept in mind, while 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, behaviour, 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.
15. 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.2.00 Lakh with two local sureties in the like amount each to the satisfaction of concerned Chief Judicial Magistrate/ Judicial Magistrate/trial Court 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 ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP 18 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.
16. 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.
17. 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 11th September, 2019 (shankar) ::: Downloaded on - 29/09/2019 04:14:28 :::HCHP