Himachal Pradesh High Court
Rahul Sharma vs State Of Himachal Pradesh on 31 July, 2024
( 2024:HHC:6460 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No.951 of 2024 Reserved on: 26th July, 2024 Announced on: 31st July, 2024 .
____________________________________________________________ Rahul Sharma ......Petitioner Versus State of Himachal Pradesh ......Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? No For the petitioner:
r Mr. Basant Pal Thakur, Advocate. For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
Ranjan Sharma, Judge Out of total ten accused, the bail petitioner [Rahul Sharma] has come up before this Court, seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure hereinafter [referred to as CrPC], originating from FIR No.21 of 2024 dated 14.02.2024, registered at Police Station Theog, District Shimla [H.P.], under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act).1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 07/08/2024 20:29:18 :::CIS
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BACKGROUND:
2. Parikshit Dhani, was arraigned as an accused in FIR No.21/2024 dated 14.02.2024, registered at Police .
Station Theog, District Shimla, [H.P.]. Consequently, nine other persons were arraigned as accused namely, Sahil Kumar [main supplier], Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay Chauhan, Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan and the bail petitioner,
3.
r to
Rahul Sharma, in the said matter.
FACTUAL MATRIX
The case set up by Mr. Basant Pal Thakur, Learned counsel, on behalf of the bail petitioner [Rahul Sharma], is that the bail petitioner is permanent resident of Prem Nagar, Tehsil Kokunala, District Shimla [H.P.], as mentioned in the memo of parties. It is further averred that the bail petitioner is sought to be falsely implicated in the said case. It is averred that on 14.02.2024, a Police Party, was on patrolling at Theog Bypass, and the police apprehended one Prikshit Dhani, from whom the contra band was recovered and who was allegedly found to be involved in sale/ purchase of the contraband.
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3(i). It is further stated that the bail petitioner
[Rahul Sharma], has been roped in only due to the fact, that there were some financial transactions in between .
the bail petitioner [Rahul Sharma] and Prikshit Dhani, as referred to above. It is further averred that the bail petitioner is a Government Employee, serving as Technical Assistant in Gram Panchayat and he has no criminal history.
3(ii). The bail petitioner has also given the requisite undertaking that he shall neither tamper with the evidence nor the witnesses in any manner. It is further averred in the bail petition, that in case he is enlarged on bail, he shall not cause any inducement, threat or promise to any person or persons acquainted with the facts of the case in any manner. It is also averred that the bail petitioner, shall join investigation as and when directed by this Court or called by the Investigating Agencies.
3(iii). It is further averred that the bail petitioner had moved Bail Application No.1940 of 2024 before the Learned Sessions Judge-Special Judge-II, Shimla on 09.04.2024, but the same was dismissed on 22.04.2024;
on the ground that financial transactions were made
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inter se the bail petitioner and accused Prikshit Dhani, from whom contraband was recovered.
3(iv). Learned counsel for the petitioner submits that .
financial transaction of Rs.90,000/- by way of cash loan was taken by him in October 2023, from the main accused Prikshit Dhani, for treatment of her daughter, who was suffering from some ailment and was admitted at Chandigarh, who later did not survive. It is submitted that an amount of Rs.70,000/- approximately was repaid by the petitioner to Prikshit Dhani in December, 2023 and then in January, 2024.
It is in this background, that the petitioner, has prayed for bail in these proceedings.
PROCEEDINGS BEFORE THIS COURT
4. Instant bail petitions Cr.MP(M) No.951/2024, [Rahul Sharma vs State of Himachal Pradesh], was listed before this Court on 07.05.2024 when, this Court issued notice directing the State Authorities to file Status Report.
The State Authorities furnished the Status Report dated 08.05.2024, on instructions of SHO, Police Station Theog, District Shimla [H.P.], and the copy of Status Report was ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) -5- furnished to Learned Counsel for the petitioner. Meanwhile on 08.05.2024, this Court granted interim bail to the petitioner.
.
4(i). On 08.05.2024, this Court directed the State Authorities to file Fresh Status Report in the matter.
Accordingly, the Fresh Status Report dated 10.06.2024 was filed, which was taken on record and copy whereof was furnished to Learned Counsel for the petitioner and as prayed for, the matter was posted Upon listing of matter on 20.06.2024, the Learned Counsel r for 20.06.2024.
for petitioner prayed for an adjournment, so as to enable him to file an application for placing on record additional documents.
4(ii). In terms of the order dated 20.06.2024, the petitioner moved an application [Cr.MP No.2587 of 2024] placing on record additional material, to show that the petitioner was enrolled as a Contractor on 7.2.2019 [Annexure P-1] before being engaged as a Technical Assistant and also enclosed a bill dated 16.12.2023 [Annexure P-2], to show that the petitioner had spent an amount of Rs.18,000/- [Rupees Eighteen Thousand] ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) -6- for purchase of spare parts. In addition to this, the Statement of Account of SBI was enclosed as [Annexure P-3, colly] giving details of financial transactions carried out from .
December 2023 to April 2024 by the bail petitioner.
4(iii). The Status Report dated 08.05.2024 and the Fresh Status Report dated 10.06.2024 reveal that the bail petitioner [Rahul Sharma] had been in touch with the main accused [Parikshit Dhani]. Status Report reveals that co-accused namely r to the bail petitioner, had been in regular contact with other Aditya Chauhan, Abhay Chauhan, Rakshit Chauhan. Status Report reveals that the bail petitioner [Rahul Sharma], had resorted to numerous Financial-Bank Transactions amounting to Rs.2,08,970/-
[Rupees Two Lakh Eight Thousand Nine Hundred Seventy], with the main accused [Parikshit Dhani] and other co-
accused [Aditya Chauhan, Abhay Chauhan and Rakshit Chauhan], between December 2023 to February 2024. Status Report further indicates that all ten accused had been running Inter-State Drugs Racket of Heroin/Chitta which was purchased from main supplier [Sahil Kumar] by other accused-main peddlers, namely, Parikshit Dhani, ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) -7- Aditya Chauhan, Paras Justa and Ashutosh Sanolta, who further transmitted Heroin[Chitta] from Chandigarh [UT] to Kotkhai and Theog in District Shimla [HP] to .
other accused-sub-peddlers, namely, Abhay Chauhan, Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan and Rahul Sharma [bail petitioner]. Status Report indicates that the bail petitioner was a habitual user of Heroin[Chitta] and indulged in sale and purchase to the local youth of In r the to the Kotkhai and Theog in District Shimla.
background of the Status Report(s), the Learned State Counsel has prayed for the dismissal of the instant bail application.
5. Heard, Mr. Basant Pal Thakur, the Learned Counsel for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the Respondent and have perused the available material.
STATUTORY PROVISIONS:
6. In order to test, the claim for enlargement on bail, it is necessary to have a recap of the provisions of Section 21, 29 and 35 of the NDPS Act, which reads as under :-
::: Downloaded on - 07/08/2024 20:29:18 :::CIS( 2024:HHC:6460 ) -8- "Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation to manufactured drugs and preparations-
Whoever, in contravention of any provision of this Act or any rule or order made or condition .
of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable ,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial r quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) -9-
offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for .
the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or r psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
35. Presumption of culpable mental state.- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.- In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 10 -
to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
MANDATE OF LAW:
.
7. Notably, the offences under the NDPS Act including Section 21 of the aforesaid Act, as in this case are cognizable, therefore, the claim of the suspect-
accused for post arrest bail-regular bail is to be examined /tested within the parameters prescribed of the Code of Criminal Procedure [now BNSS] and also the broad para-
meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 11 -
these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
.
7(i). While dealing with the case for grant of regular bail, under Section 439 Cr PC, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25 considering claim for bail.
r to that the nature of the crime has a huge relevancy, while 7(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 12 -
in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
.
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused,
i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
r (vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be.
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7(iii). In CBI versus Santosh Karnani, (2023) 6
SCALE 250, the Hon'ble Supreme Court has reiterated the illustrative time tested broad parameters which are .
required to be taken into account while considering the prayer for bail ; which have recently been reiterated by the Hon'ble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC OnLine SC 1085.
7(iv). This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court, is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation; the nature of evidence collected;
the gravity of offence; the role attributed to each of the accused; the severity of punishment prescribed for an offence(s); the character of the accused; the possibility of securing presence of accused during the trial; the ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 14 -
apprehension of witnesses being tampered; the possibility of accused causing any threat or inducement to witnesses;
by forming a prima facie opinion in the context of above .
broad-parameters and by balancing the personal liberty of an accused vis-à-vis the societal rights and interests; and without delving into merits, so as to prevent any prejudice to either the accused or the prosecution.
OBJECT OF NDPS ACT:
8. Even in order to examine bail under the NDPS Act, this Court deems it necessary, to have a recap of the Preamble of the NDPS Act, which the claim for reads as under :
"An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith"
8(i). While dealing with the object of the NDPS Act, the Hon'ble Supreme Court in Durand Didier, (1990) 1 SCC 95, has mandated that the devastating menace ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 15 -
of clandestine smuggling and illegal trafficking in drugs and substances has led to drug addiction amongst a sizeable section of the society, the adolescents and the .
youth, having a deleterious effect and deadly impact on the society, with the following observations :
"19. In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
20. It may not be out of place to mention that even if a person is shown to have been in possession of a small quantity of a narcotic r drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
21. Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
22. We, for the above reasons, see no merit in this contention also. The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows:
"The spreading of the drugs in Gao is becoming day by day a terrible menace ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 16 -
which is completely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe .
punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade."
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming r 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, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine...."
8(ii). Even a suspect or an accused under the NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely because the accusation is relating to either small or intermediate quantity of contraband. Courts cannot feign ignorance that it is the modus operandi of Drug Mafia's or ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 17 -
Master-minds or King Pins, who primarily act through persons, who are either indigent or are poor or are unemployed or have unwarranted and unexpected financial .
expectations so as to become over night rich or who suffer financial instability etc. Taking advantage of these circumstances, the Kingpins or Master-minds allure and mold them to become main suppliers/main peddlers and then induce them to act as sub-local peddlers for trafficking of small and intermediate quantity of contraband with a predesigned calculation, that in case of their involvement, they may have an easy and earlier release. Day in, and day out, instances are endlessly creeping in and are constantly on the rise. With passage of time, these peddlers turn out to be habitual offenders by involving them in multifarious cases, either under the NDPS or other Statutes.
8(iii). It is high time that the drug trafficking and menace needs to be dealt with iron hands. If the available material points towards the prima facie case or carves out reasonable grounds to believe the accusation or culpability or involvement then, in larger societal interests, the rule of law needs to be strictly enforced.
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Any drug peddler or trafficker or person cannot have an automatic and vested right to be enlarged on bail, merely because the quantity of contraband involved is .
either small or intermediate. An assertion of personal liberty by a person including an accused cannot be in the realm of absolutism and can never be an uncontrolled and unrestricted one. Personal liberty of a person ends where, liberty of another is sought to be or is intended to be or is actually violated. Notably, the personal under Article 21 to some extent may carry weight, depending r liberty on facts of each case, but, when it comes to safeguarding and protecting the rights and interests of the society, the community and the nation then, in such an eventuality, the individual right(s) shall certainly have to succumb to larger societal interests, in terms of the mandate of law, in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) 9 SCC 446, as under:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 19 -
to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty .
is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 20 -
express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an .
organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires.
Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others r is jeopardized, for the rational collective does not countenance an anti-social or anti collective act.
30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents.
Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 21 -
weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at .
hand deserves to be given priority over lifting the restriction of liberty of the accused."
8(iv). This Court is conscious of the fact that though the rigors of Section 37(1)(b)(ii) of the NDPS Act, are not applicable in offences relating to Small Quantity or Intermediate Quantity but the fact remains, that the offences under the NDPS Act are "cognizable offences", in terms of Section 37(1)(a) of the Act.
In normal parlance, the claim of an accused for bail has to be examined and tested in the light of parameters mandated by the Hon'ble Supreme Court from time to time. Merely, because the accusation relates to either a small or Intermediate Quantity, shall neither confer an automatic right nor a vested right of bail.
Involvement in offences relating to small or intermediate quantity does not give a license or leverage to a person to indulge in nefarious activities. The Court has to form an opinion regarding the involvement of an accused, ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 22 -
from the Case Diary or the Status Report(s) or other available material, and in normal situations, aforesaid material must prevail unless the same is contradicted .
and/or overcome or is disproved by other evidence which on the face of it, casts doubt on the material(s) gathered by the prosecution. Enlargement on bail, in case, an accusation relates to Small or Intermediate Quantity, despite, the fact that the material on record reveals the prima facie case or reasonable grounds shall certainly result in adding wings to their flight and giving leverage to such suspect-accused to continue, expand and flourish in inhumane, prohibited, illegal and nefarious activities and such persons cannot curtail the fundamental right of a person to live with dignity, by causing adversarial effect on his mental and physical state, including the right to health.
8(v). The exception to this principle, is that enlargement on bail {be it relates to either small quantity or intermediate quantity of contraband} can be extended, on case to case basis, when, the available material does not points towards the prima facie involvement and the past ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 23 -
conduct being unblemished, subject to the fulfillment of other broad parameters, mandated by the Hon'ble Supreme Court, from time to time as detailed herein.
.
ANALYSIS OF CLAIM IN INSTANT CASE
9. Notwithstanding the orders dated 22.4.2024, passed by the Learned Trial Court, dismissing the bail application, this Court proceeds to examine the prayer of the petitioner for bail in instant case.
10. averments Though rmade this in to Court the bail on the petition basis granted of the the interim protection to the petitioner on 8.5.2024 but after taking into consideration the entirety of the facts and circumstances of the case as borne out from the material on record; and the statutory provisions; and the mandate of law, as referred to above, this Court is of the considered view, that the bail petitioner [Rahul Sharma], is not entitled to the further concession on bail, at this stage, for the following reasons:-
10(i). The prima facie accusation is made out against the bail petitioner, at this stage.
10(ii). The material on record, borne out from the Status
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Report(s) indicate that both these reports are pari-materia, indicating that reasonable grounds exist, to believe the accusation against the bail petitioner, in view of the .
following aspects :-
10(iii). PRIMA FACIE ACCUSATION BETWEEN MAIN SUPPLIER [SAHIL KUMAR] AND FOUR MAIN PEDDLERS [PARIKSHIT DHANI, ADITYA CHAUHAN, PARAS JUSTA, ASHUTOSH SANOLTA] AND BAIL PETITIONER [RAHUL SHARMA] Perusal of Status Report filed by the State Authorities indicates that Parikshit Dhani was arraigned as accused, from whom the contraband was recovered by the police. Even the accused, Parikshit Dhani, has affirmed that he used to procure Heroin [Chitta] from Sahil Kumar [main supplier], who was a resident of Moti Jagran Complex, Chandigarh [UT]. Material on record reveals that Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta were the main peddlers, who were room mates at Chandigarh [UT], who belonged to Theog and Kotkhai in District Shimla [HP].
10(iv). PRIMA FACIE ACCUSATION BETWEEN MAIN PEDDLERS AND FIVE OTHER LOCAL PEDDLERS [ABHAY CHAUHAN, VISHVA RAJ SINGH, RAKSHIT AND VIKRAM CHAUHAN] AND RAHUL SHARMA [BAIL PETITIONER] ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 25 -
Status Report reveals that four main peddlers namely [Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta], after purchasing the contraband .
from main supplier [Sahil Kumar of Chandigarh], stored the contraband at different locations at Kotkhai and Theog in District Shimla [HP] and they resorted to further sale and purchase of drugs-narcotics [Heroin/Chitta], to local youth/people in Kotkhai and Theog areas of District Shimla through their sub-local agents, namely, Abhay Chauhan, Vishva Raj Singh, Parikshit Dhani and Vikram Chauhan, Rakshit Chauhan including the bail petitioner [Rahul Sharma].
10(v). MODUS OPERANDI AND CONCERTED EFFORT BY ALL TEN [10] ACCUSED INCLUDING BAIL PETITIONER TOWARDS ILLICIT TRAFFICKING: SALE, PURCHASE AND INTER-STATE IMPORT:
Reference to the Status Report reveals that main supplier was Sahil Kumar. Four other main peddlers, namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta, purchased the contraband [Heroin/Chitta] from main supplier.
Status Report(s) reveals the modus operandi ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 26 -
of the accused, i.e. the main supplier, Sahil Kumar and four main peddlers [namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta], ensured .
its transportation from Chandigarh [UT] to Kotkhai and Theog areas of District Shimla [HP]. Material on record indicates that these four main peddlers kept-stored contraband at different locations in Kotkhai and Theog.
Sale was effectuated by these main four peddlers in the area [namely, Abhay r to of Kotkhai and Theog through the sub-local peddlers Chauhan, Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan; including the bail petitioner, Rahul Sharma] to local youth-persons after being satisfied about the location of purchaser in the aforesaid area.
Status Report(s) gives the details of Call Detail Records [CDR's] of all ten accused, for the period from October 2023 to February 2024; between the main supplier, Sahil Kumar; and main peddlers, namely Parikshit Dhani, Aditya Chauhan, Paras Justa, Ashutosh Sanolta and sub-peddlers namely Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan including the bail petitioner, Rahul Sharma. Notably all ten accused, including the ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 27 -
bail petitioner were in conversation with each other, through their mobile so as to effectuate the Sale, Purchase, Transport and Inter-State Import of Heroin/Chitta.
.
10(vi) In addition to this, even the Status Report(s) reveal that Bank Transaction Details Record [BDRs] between the main supplier [Sahil Kumar], and four other main peddlers, namely, Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta and the sub local peddlers, namely, Abhay Chauhan, Vishva Raj Singh, Rakshit Chauhan and Vikram Chauhan including the bail petitioner, Rahul Sharma herein, during four months period w.e.f. October-November, 2023 to February 2024, as per the following extract:-
Bank Transaction Details between October 2023 to February 2024 Sr. Name of accused Name of co-accused Total amount No. [main peddlers and local peddlers] 1 Sahil Kumar Parikshit Dhani Rs.4,16,243/-
[main supplier] Paras Justa
Abhay Chauhan
2 Aditya Chauhan Parikshit Dhani Rs.3,71,000/-
[main peddler] Rahul Sharma
Vishwajeet
Sahil Kumar
3 Paras Justa Parikshit Dhani Rs.3,97,206/-
[main peddler] Sahil Kumar
4 Ashutosh Sanolta Parikshit Dhani Rs.3,32,101/-
[main peddler] Vishva Raj Singh
5 Vishva Raj Singh Parikshit Dhani Rs.1,40,888/-
[local peddler] Ashutosh Sanolta
Aditya Chauhan
Rakshit Chauhan
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( 2024:HHC:6460 ) - 28 -
6 Rahul Sharma Parikshit Dhani Rs.2,08,000/-
[local peddler & bail Abhay Chauhan
petitioner] Rakshit Chauhan
7 Rakshit Chauhan Parikshit Dhani Rs.55,000/-
[local peddler] Vishva Raj Singh
[absconding]
8 Vikram Chauhan Parikshit Dhani Rs.46,200/-
.
[local peddler]
[absconding]
9 Abhay Chauhan Parikshit Dhani Rs.28,550/-
[local peddler]
10(vii). GRAVITY OF OFFENCE IN THIS CASE:
In the instant case, though the contraband [Heroine/Chitta], of 12.06 grams, was recovered from the main accused [Parikshit Dhani], after complying with the mandate of Section 52 of the r on 14.02.2024, but Act, though it came out to be 8.58 grams yet, the material on record which is borne out from two Status Reports dated 8.5.2024 and 10.6.2024, suggests that all the ten accused i.e. main supplier [Sahil Kumar] and the other main peddlers [Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta], and the sub-peddlers namely, Abhay Chauhan, Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan [including the bail petitioner, Rahul Sharma] had resorted to frequent bank transactions since October 2023 till February 2024 of about Rs.20,00,000/- [Rupees Twenty Lakhs], and out of this an ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 29 -
amount of Rs.2,08,000/- [Rs. Two Lakh Eight Thousand only] was exchanged by the bail petitioner with some of the co-accused, namely. Parikshit Dhani, Abhay Chauhan and .
Rakshit Chauhan.
Though the Status Report(s) indicates that the bail petitioner [Rahul Sharma], had conversation with main peddler [Parikshit Dhani] on two occasions but all these ten accused, including the bail petitioner have adopted a well designed modus operandi, leading to the Sale and Purchase of Heroin/Chitta to the youth/local villagers of Kotkhai and Theog in District Shimla pointing towards the prima facie accusation revealing the participation of the bail petitioner [Rahul Sharma] in these nefarious activities.
Even the plea of the Learned Counsel for the bail petitioner [Rahul Sharma], based on the documents enclosed with Cr.MP No.2785 of 2024 including the communication dated 07.02.2019 [Annexure P-1] is of no avail when the accusation in this case, relates to the period with effect from October 2023 to February 2024. So far as, the bill/cash memo dated 16.12.2023 [Annexure P-2] is concerned, the same is also of no assistance for the reason that a bare ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 30 -
perusal of the bill showing purchase of some spare parts of Rs.18,000/- [Rs. Eighteen Thousand only] appears to be manipulated one, as this bill does not bear signatures of .
person who issued this bill/cash memo. Moreover, the SBI Bank Statement from December 2023 to April 2024 [Annexure P-3, colly], do not indicate any material to show that the amount of Rs.2,08,000/- [Rs. Two Lakh Eight Thousand only] exchanged between the bail petitioner and other accused [Parikshit Dhani, Rakshit Chauhan] was not on account of sale, purchase r Abhay Chauhan, and use of Heroin in this case. Further, there is no material on record to prima facie show that the bail petitioner has repaid an amount of Rs.70,000/- as averred in Para 3(iv) of the bail petition to co-accused Prikshit Dhani.
In these circumstances, once the bail petitioner [Rahul Sharma] has failed to place on record any material, so as to deny the prima facie accusation, as borne out from the Status Report(s) filed by the State Authorities, therefore, the plea for bail is devoid of any merit at this stage.
10(viii). DANGEROUSITY-HARMFULLNESS OF DRUGS-
HAVING KILLING INSTINCT ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 31 -
While dealing with the dangerousity, harfullness and killing instinct of the nefarious street drug [Heroin/Chitta] has been outlined by the Hon'ble Supreme .
Court, in Hira Singh versus Union of India, (2020) 20 SCC 272, that the provisions of the NDPS Act are not to be construed liberally but the effective implementation of the rule of law and the object of the enactment {NDPS} can be achieved by curbing and stringently dealing with the nefarious activities and illegal trafficking of the most powerful, dangerous and injurious illegal street drug(s) under the NDPS Act, as under:
"10.3 At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal 34 doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances. This means that drug dealer will add other drugs or non-intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves. Brown-sugar / smack is usually made available in power form. The substances ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 32 -
is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is cheaper but more dangerous. These are only few examples to show and demonstrate .
that even mixture of narcotic drugs or psychotropic substance is more dangerous. Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for "commercial quantity".
Certainly that would not have been the intention of the legislature...."
10.5 The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 33 -
which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The .
guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important.
Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act ; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act ...."
10(ix). In Cr.MP(M) No.273 of 2024, Davinder @ Chhinda vs State of Himachal Pradesh, this Court has denied the concession of bail, where the prima facie accusation reflecting the Sale, Purchase, Transport and Inter-State Import, causing deleterious and deadly effect on the society, in larger societal interests, as under:-
"17(v). Now this Court proceeds to examine the gravity and severity of the accusation, offence against the bail petitioner. In the ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 34 -
present case, it is the bail petitioner, who managed the entire show leading towards the sale, purchase, transport and inter-State import of the alleged contraband i.e. the heroin/chitta [weighting 49.03 gms] i.e. 39.70 gms and 9.33 gms was recovered by the Police .
from two persons [Rishab Sehgal and Anish Sonker], who were sent to Delhi to meet the Nigerian, at the behest of the bail petitioner, as referred to above.
In terms of the NDPS Act and Schedule to the Act, any narcotic drug or psychotropic substances is categorized into small and commercial quantity. By interpretative process, any quantity which exceeds the specification(s) for "Smaller Quantity" but remains below the limit for "Commercial Quantity" has been categorized as "Intermediate Quantity". As per the Act and Schedule thereto, in case of Heroin/Chitta, the quantity upto 5 gms falls within "Small Quantity' and quantity exceeding 5 gms to below 249 gms comes within the ambit of "Intermediate Quantity".
In the instant case, the bail petitioner was involved in more than 49.03 gms of Heroin/Chitta, which is nine times more than the maximum prescribed limit for smaller quantity, for which the punishment stretches over to rigorous imprisonment for a period upto 10 years or with fine. Notably, the gravity of this street drug [heroin/chitta weighing 49.03 gms], is much more than the offences relating to murder, culpable homicide, rape, grievous hurt etc., for the reason, that in the case of rape or murder or culpable homicide or grievous hurt etc., it can have adversarial and killing instinct on countable persons; but the harmful, injurious and dangerousity of heroin/chitta is more graver and its culpability is writ large. In view of the gravity of the alleged ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 35 -
offence, as explained in case of Hira Singh [supra] coupled with the fact that it is the modus operandi of these persons, that they resort to peddling in small or intermediate quantity of contraband, hoping that the Court(s) liberally construe the alleged .
involvement in small or intermediate quantity for purpose of bail. Merely because the quantity allegedly involved is "Intermediate Quantity {49.03 grms of Heroin/ Chitta}" the same shall ipso facto cannot confer a right or leverage or license for claiming or granting bail and the rule of law cannot be permitted to be scuttled, as in this case. Such nefarious- illegal drug trafficking and drug peddling and trading needs to be strictly dealt with and curbed, so that in coming times an uncontrollable adversial situation may not arise; when, one may have to repent later.
Accordingly, the gravity of the alleged offence in the instant case, restrains this Court, from showing any indulgence, at this stage."
10(x). Taking into account the facts narrated above, the instant case reveals an alarming state of affairs.
Though the FIR was registered on 14.02.2024, yet all ten [10] accused persons i.e. the main supplier [Sahil Kumar] resorted to the Sale-supply of Heroin/Chitta to the four main peddlers, namely Parikshit Dhani, Aditya Chauhan, Paras Justa, Ashutosh Sanolta and these four accused further indulged in the Sale/ transportation of contraband to the sub-local peddlers; namely, Abhay ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 36 -
Chauhan, Vishva Raj Singh, Rakshit Chauhan and Vikram Chauhan, including the bail petitioner, Rahul Sharma, who further resorted to the sale, purchase of Heroin/ .
Chitta, to the local youth/people in the areas of Kotkhai and Theog in District Shimla [HP]. Status Report(s) reveal that by and large all these ten accused were in touch with each other, which is further borne out from the Bank Transaction Detail Records [BTDRs]. Not only this, the Status Report reveals that all these ten accused had resorted to nefarious activities for quite some time. The dangerousity and killing instinct of Heroin/Chitta is grave and serious. Since all ten accused persons have acted in a well knit and concerted design then, the prima facie accusation becomes more graver, having adversarial effects on numerous persons in the community-society and since all the ten accused persons, including the bail petitioner [Rahul Sharma], have indulged in nefarious activities, therefore, the personal liberty of the bail petitioner [Rahul Sharma], shall certainly have to succumb to the larger societal interests, at this stage.
Moreover the prima facie and reasonable grounds points towards the accusation against the bail petitioner and ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 37 -
therefore, this Court refrains itself from enlarging the bail petitioner [Rahul Sharma], in larger societal interests, at this stage.
.
CONTENTION OF LEARNED COUNSEL FOR PETITIONER.
11. Learned Counsel Mr. Basant Pal Thakur has contended that the CDRs cannot be the basis for denying bail, is without any merit, for the reason, that prima facie accusation revealing criminal conspiracy and culpability is borne out from the "Call Detail Records [CDRs] and the 'Bank Transaction Detail Records [BTDRs]'' inter se, the main supplier [Sahil Kumar] and four main peddlers-accused and other sub-local peddlers-
accused.
Notably, in Narcotics Control Bureau vs Mohit Aggarwal AIR 2022 SC 3444, Hon'ble Three Judges of the Supreme Court upheld the prima facie accusation, on the basis of Bank Transaction(s) and CDRs, in the following terms :-
"16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the appellant NCB could not have relied on the ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 38 -
confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement .
recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the appellant NCB had relied on to oppose the bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all co-accused including the respondent herein showed that they were in touch with each other.
17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 39 -
such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the .
offence for which he has been charged. Such an assumption would be premature at this stage.
19. As a result of the aforesaid discussion, the present appeals are allowed and the impugned order releasing the respondent on post-arrest, is quashed and set aside. The bail bonds of the respondent are cancelled and he is directed to be taken into custody forthwith."
11(i). A Coordinate Bench of this Court, in Cr.MP(M) No.1636 of 2023, Rakesh Kumar vs State of Himachal Pradesh, decided on 11.12.2023, has held that the material borne out from the CDRs and Bank Transactions are sufficient to construe the accusation, in the following terms :-
"27. It has been further contended that petitioner has not been involved only on the basis of Call Detail Report, but there are transactions of substantially huge amount from the petitioner to Khushwind as well a Hari Mohan Dass, which are sufficient to construe involvement of the petitioner in commission of offence, particularly when after arrest of Khushwind, petitioner had eloped and not only this Hari Mohan Dass is not traceable till date and, therefore, it has been submitted that it cannot ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 40 -
be said that there is not even remote link between the recovery of charas from Kushwind and amount paid by the petitioner Rakesh Kumar to Kushwind. It has been further contended that there was/is no enmity between kushwind and Rakesh Kumar and, .
therefore, there was no occasion for Kushwind to implicate Rakesh Kumar by making statement before the Police regarding ownership and transportation of charas.
32. With respect to delay, it has been contended by learned Additional Advocate General that there is no inordinate delay in completion of trial because trial is likely to be completed within reasonable period of three years and for recovery of huge quantity of charas and evidence of involvement of petitioner therein, petitioner is not entitled for bail, as he has been found r involved in commission of heinous crime damaging and society as well as Nation."
PLEA OF FALSE IMPLICATION: MISCONCEIVED
12. The Learned Counsel contended that the bail petitioner has been falsely implicated is without any substance. Notably, even Learned Counsel has not pointed out anything to show that the prima facie accusation is not made out at this stage.
However, the material on record indicates the prima facie connection and linkage [based on BTDRs and CDRs] worth lakhs of rupees inter se the main supplier, [Sahil ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 41 -
Kumar] and the other main peddlers-accused Parikshit Dhani including [Aditya Chauhan, Paras Justa and Ashutosh Sanolta] and other sub-peddlers including bail petitioner .
[Rahul Sharma] revealing the modus operandi, intention and common design and integrated effort revealing conspiracy/culpability in committing offence relating to illegal and nefarious drug trade by resorting to the Sale, Purchase, Transport and Inter-State Import of contraband by all ten accused. In these circumstances, once the plea of accusation is misconceived, therefore, the petitioner is not entitled for enlargement/further continuance of the concession of bail, at this stage.
TWO ACCUSED STILL ABSCONDING:
13. The prayer of Learned Counsel for bail is not tenable, at this stage, for the reason, as per the Status Report(s) that out of ten accused, two of the accused, namely, Rakshit Chauhan and Vikram Chauhan are absconding. Making the interim bail order absolute shall certainly add wings to the flight of the petitioner by giving rise to every likelihood of fleeing away, along with the two absconded accused.
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POSSIBILITY OF INDULGING IN ILLICIT
TRAFFICKING VIOLATING SOCIETAL INTERESTS :-
14. The prayer for bail is not tenable, in view of the fact that all ten accused including the bail .
petitioner [Rahul Sharma] herein, have been running an Inter State Drug Racket with a premediated and well-knit design, for effectuating the sale, purchase, transportation and Inter-State Import of contraband.
There is every possibility that the bail petitioner may indulge in illegal and nefarious trafficking-activities being carried out by him from October 2023 till registration of FIR dated 14.02.2024.
Thus, the prima facie accusation, the gravity of offences by all ten accused, including the bail petitioner [Rahul Sharma] by resorting to a well-knit modus operandi to effectuate the Sale, Purchase, Transport and Inter-State Import of Heroin [Chitta] from Chandigarh [UT] to District Shimla [HP]; since October-November 2023 till the registration of FIR on 14.02.2024 and even thereafter till 19.02.2024 dissuades this Court from enlarging or further continuance of bail in larger societal interests.
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MERE COMPLETION OF INVESTIGATION NOT A GROUND FOR BAIL
15. Mr. Basant Pal Thakur, Learned Counsel submits that since the investigation is complete .
and no custodial interrogation is required by the State Authorities coupled with the fact that the bail petitioner has given an undertaking for participating in investigation and consequential trial therefore, the bail may be granted, is in considered view of this Court, cannot ipso facto be the basis for enlarging or further continuance of bail, in view of the gravity of the offence when, the available material points towards the grave and severe prima facie accusation against the bail petitioner.
Moreover, the Hon'ble Supreme Court in SLP (Crl) No. 10810 of 2023 titled as The State of Jharkhand versus Dhananjay Gupta @ Dhananjay Prasad Gupta decided on 07.11.2023, has categorically held, that merely because the investigation is complete or undertaking to participate in the trial has been furnished cannot in itself, be a ground for releasing the bail petitioner in offences of a serious nature, in following terms :-
::: Downloaded on - 07/08/2024 20:29:18 :::CIS( 2024:HHC:6460 ) - 44 -
"4. The reasons that persuaded the High Court for granting bail to the respondent have been stated in paragraph-4 of the impugned order reads, thus:-
"4. Innocence has been claimed by .
the learned counsel for the applicant and undertaking has been given for participation in the trial. Further, it has been submitted that no overt act has been alleged against this applicant. Investigation is complete. On the above basis, prayer for bail has been made."
5. When the offences alleged, inter alia, includes one under Section 307, IPC and the accused concerned is so arraigned with the aid of Section 149, IPC, such submissions, reflected in paragraph or the mere factum of completion of r investigation by itself, cannot be the reason(s) for grant of bail without due consideration of the relevant aspects. At any rate, mere claim of innocence or undertaking to participate in the trial or contention of absence of specific allegation of any overt act cannot, in such circumstances, be assigned as reasons for grant of bail in a case of serious nature.
We are of the considered view that in such circumstances, impugned order deserves to be set aside and the matter is liable to be remanded to the High Court for fresh consideration in accordance with law. In that view of the matter, the impugned order dated 12.01.2023 passed by the High Court in B.A. No.12508 of 2022 stands set aside and the matter is remanded back to the High Court for fresh consideration in accordance with law. The application which culminated in the impugned order is restored into the file in its original number to facilitate such consideration. We make it clear that we have ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 45 -
not made any observation touching the merits."
CONCLUSION:
16. In view of the above discussion and for the .
reasons stated above and in the peculiar facts of the instant case, as referred to above, this Court refrains itself, from acceding to the prayer for bail or for making interim bail absolute, in view of the prima-facie accusation coupled with the fact that reasonable grounds exist against the bail petitioner [Rahul Sharma] who in a concerted and planned manner has given effect to the nefarious activities alongwith nine other co-accused whose claim for bail was declined by this Court in Cr.MP(M) No. 1158 of 2024 and other connected matters on 26.07.2024.
Accordingly, the instant bail petition, being devoid of any merit, is dismissed, at this stage.
17. As a sequel to the dismissal of bail petition, this Court, directs the petitioner to surrender before the police. Consequently, the bail bonds/surety bonds, executed in pursuance to the interim bail order dated 08.05.2024 shall stand cancelled. In case, the petitioner fails to surrender, ::: Downloaded on - 07/08/2024 20:29:18 :::CIS ( 2024:HHC:6460 ) - 46 -
the State Authorities shall proceed in accordance with law.
18. The observations made in this judgment shall not be construed in any manner as an indictive of .
findings, for or against the parties herein, either for the purpose of investigation or for trial, thereafter, in any manner, which shall proceed, independent of any of the observations herein, in accordance with law.
In the aforesaid terms, the bail petition is also stand disposed of.
r to dismissed and the pending application(s), if any, shall (Ranjan Sharma) Judge July 31st, 2024 (Chiranjeev/tm) ::: Downloaded on - 07/08/2024 20:29:18 :::CIS