Himachal Pradesh High Court
Sahil Chauhan vs State Of Himachal Pradesh on 29 August, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MP (M) No. 1562 of 2023 Reserved on: 04.08.2023 Decided on : 29.08.2023 ____________________________________________________________ Sahil Chauhan ....Petitioner Versus State of Himachal Pradesh ...Respondent of Coram:
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
rt Whether approved for reporting?1 _________________________________________________________ For the petitioner : Mr. Susheel Gautam, Advocate.
For the respondent : Mr. Jitender Sharma, Additional Advocate General.
Sushil Kukreja, Judge By way of instant petition, filed under Section 439 of the Code of Criminal Procedure the petitioner is seeking bail in case FIR No. 68/2023, dated 05.05.2023, under Sections 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act") registered at Police Station Rohru, District Shimla, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 29/08/2023 20:34:30 :::CIS 2
2. The prosecution story, in brief, is that on .
05.05.2023, at about 5:15 P.M., while the police party was on routine patrolling duty and engaged in easing traffic congestion near Police Gumti on Chirgaon bifurcation road, they saw a vehicle, bearing registration No. HP77-7728 of parked by the side of the road. On seeing the police party, the person sitting on the driving seat of the vehicle picked rt up something from his lap and put it on a side. On asking, the person sitting on the driver seat disclosed his name as Sahil (petitioner herein) and the person sitting on co-driver seat disclosed his name as Shubham Thakur. On suspicion, the police party associated Anup Kumar and Pradeep as independent witnesses in the proceedings. In presence of the aforesaid witnesses, the police party searched the aforesaid vehicle and during search, near gear lever and hand brake, a blue coloured carry bag containing 10 sealed bottles of BYEREX-NEW 100 ml. Of TRIPROLIDINE HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP, was recovered. However, the accused persons could not produce any license/permit or prescription slip of the doctor for possessing the prohibited drug. After completion ::: Downloaded on - 29/08/2023 20:34:30 :::CIS 3 of necessary codal formalities, FIR detailed hereinabove .
was registered against the accused persons and they were arrested. During investigation, the petitioner also got recovered 9 bottles of CHLORPHENIRAMINE MALEATE & CODEINE PHOSHOTE SYRUP 100 ml each from the store of of one Chirag Multani and as such, he was also arrested in the present case.
3. rt The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned counsel for the petitioner has contended that the petitioner is in judicial custody since 05.05.2023 and taking into consideration the age of petitioner, i.e. 28 years, if he is not enlarged on bail, his entire career will be ruined. He has further contended that investigation is complete and custody of the petitioner is not at all required and, as such, no fruitful purpose will be served by keeping him behind the bars for an unlimited period.
4. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have ::: Downloaded on - 29/08/2023 20:34:30 :::CIS 4 been committed by the petitioner and quantity of the .
recovered contraband, i.e. commercial quantity, he is not entitled to be enlarged on bail.
5. I have heard the learned counsel for the petitioner as well as learned Additional Advocate General of and have also gone through the record of the case and I am of the firm opinion that the petitioner has not made out rt a case for grant of bail, as a perusal of the record prima facie indicates that 10 bottles of BYEREX-NEW, 100 ml each, of TRIPROLIDINE HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP were recovered from the vehicle in question, being driven by the petitioner and 9 bottles of CHLORPHENIRAMINE MALEATE & CODEINE PHOSHOTE SYRUP 100 ml each, were recovered by the police from one Chirag Multani on the identification of the petitioner. The learned counsel for the petitioner contended that the petitioner is entitled to be released on bail as only 10 bottles of BYEREX-NEW, 100 ml each, of TRIPROLIDINE HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP were allegedly recovered from the vehicle in question being driven by the petitioner. However, this contention of ::: Downloaded on - 29/08/2023 20:34:30 :::CIS 5 .
learned counsel for the petitioner cannot be accepted, as even if his argument is accepted that only 10 bottles of BYEREX-NEW, 100 ml each, of TRIPROLIDINE of HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP were allegedly recovered from the vehicle being driven by the rt petitioner, even then, the quantity of 10 bottles comes within the definition of commercial quantity because as per the report of FSL, the total weight of 10 bottles of TRIPROLIDINE HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP allegedly recovered from the petitioner and co-
accused comes to 1.201 Kgs, which falls within the definition of commercial quantity and, therefore, the grant of the bail in this case is governed by the provisions of Section 37 of the NDPS Act, which reads as under:-
"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;::: Downloaded on - 29/08/2023 20:34:30 :::CIS 6
(b) no person accused of an offence punishable for [offences under section 19 or 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 of
(ii) where the Public Prosecutor opposes the application, 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.
rt (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."
6. The Apex Court in Union of India vs Prateek Shukla, AIR 2021 Supreme Court 1509, has held that merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. The relevant portion of paragraph No. 11 of the said judgment is reproduced hereunder:-
::: Downloaded on - 29/08/2023 20:34:30 :::CIS 7"11. Ex facie, there has been no application of mind by the High Court to the rival submissions .
and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic of question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail rt has been made out. There has been a serious infraction by the High Court of its duty to apply the law........"
7. Further,the Apex Court in the matter of The State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha, (2021) 5 Supreme Court Cases 724, has held that no person accused for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. The relevant portion of paragraph No. 9 of the said judgment is reproduced hereunder:-
::: Downloaded on - 29/08/2023 20:34:30 :::CIS 8"9. .......Section 37 of the NDPS Act stipulates that no person accused of an offence punishable .
for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless the Court is satisfied "that there are reasonable grounds for believing that he is not guilty of such offence and that he is not of likely to commit any offence while on bail.................".
8. Thus, in view of the aforesaid decisions of rt Hon'ble Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found in possession of the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of sub-
section (1) of Section 37 of the NDPS Act are in addition to the limitations under the Code of Criminal Procedure. In the instant case, the accused has been found in possession of 10 bottles of BYEREX-NEW, 100 ml each, of TRIPROLIDINE HYDROCHLORIDE & CODEINE PHOSPHATE SYRUP, which comes to 1.201 Kgs, which is a commercial quantity and has failed to satisfy the conditions, as provided under Section 37 of the NDPS Act. Hence, for the ::: Downloaded on - 29/08/2023 20:34:30 :::CIS 9 reasons mentioned above, the bail application filed by the .
petitioner is dismissed.
9. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be of influenced by any observations made therein.
rt ( Sushil Kukreja )
Judge
August 29, 2023
(raman)
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