Himachal Pradesh High Court
Daman Sharma vs State Of Himachal Pradesh on 29 March, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CrMP(M) No. 203 of 2023
Reserved on : 24.03.2023
Decided on : 29.03.2023
Daman Sharma ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. R.S. Chandel, Advocate.
For the respondent : Mr. Rupinder Singh, Additional Advocate General, with Ms. Sunaina, Deputy Advocate General.
ASI Kuldeep Singh, Police Station Sadar, Chamba, present in person alongwith record.
Virender Singh, Judge.
Applicant-Daman Sharma, has filed the present bail application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing him, on bail, during the pendency of the trial, in case FIR No. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 03/04/2023 20:33:11 :::CIS 278 of 2021, dated 8th March, 2021, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act .
(hereinafter referred to as the 'NDPS Act'), with Police Station, Sadar Chamba, District Chamba, H.P.
2. The applicant has pleaded that he is an innocent person and has falsely been implicated in the present case, as he has nothing to do with the contraband, which is allegedly, shown to have been recovered, from the exclusive and conscious possession of the person, who has also been named as co-accused, in this case.
3. According to the applicant, investigation, in the present case, is complete and the police has submitted the challan before the learned trial Court.
4. As per the averments made in the bail application, the earlier bail application (CrMPM No. 2706 of 2022) filed by the applicant has been dismissed by this Court, vide order, dated 16th December, 2022, and, now, the present bail application has been filed in the changed circumstances.
5. It is contended on behalf of the applicant that after the dismissal of the earlier bail application, the learned trial Court is delaying the trial and has examined only two ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 3 witnesses, in this case. As per the applicant, the witnesses, who have been examined, in this case, have not supported the .
case of the prosecution.
6. Apart from this, the applicant, through his counsel has given certain undertakings, for which, he is ready to abide by, in case, he is released on bail.
7. On these submissions, a prayer has been made to allow the bail application.
8. When put on notice, the police has filed the status report, disclosing therein, that on 8th March, 2021, I.O. HC Virender, alongwith other police official, was present near Udaipur on picketing duty. At about 12:45 p.m., they were checking the vehicles crossing from there. In the meanwhile, a private bus, bearing registration No. HP 68B-0164 reached there, being driven by its driver, from Chamba side. The Investigating Officer signalled the driver of the said bus to stop. Thereafter, the Investigating Officer, alongwith the other police official, entered into the bus and started checking the luggage of the passengers. When, the Investigating Officer reached near seats No. 37, 38 and 39, while checking the bus, then one person was found sitting on seat No. 39. He was ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 4 having a grey/black coloured rucksack, in his lap. When, the said person noticed the Police, checking the bus, he got .
perplexed and tried to hide the rucksack underneath the seat.
8.1. On this, a suspicion arose in the mind of police and the police associated the occupants of seats No. 42 and 43, namely Nitish Bhandari and Surender Kumar, and inquired from the occupant of seat No. 39. On inquiry, the occupant of seat No. 39 disclosed his name as Taj Mohammad. When the rucksack carried by the said person was checked, the contraband, in the shape of balls, was found in it. On the basis of experience and smell, the contraband was found to be Charas. On weighment, the Charas was found to be 4 kg 12 grams.
8.2. Other codal formalities were completed and the contraband, so recovered, was taken into possession. Accused-
Taj Mohammad was arrested and produced before the Court.
8.3. It is the further case of the police that during investigation, it was found that one person, namely Daman Sharma (applicant), was calling accused-Taj Mohammad, on his mobile phone frequently and directing accused-Taj ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 5 Mohammad to bring Charas at Nainikhad, where, he was waiting for him, on his motorcycle.
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8.4. Consequently, HC Virender Singh, alongwith his team, had proceeded towards Nainikhad. Accused-Daman Sharma (applicant), who, as per the status report, was waiting for Taj Mohammad was nabbed and was brought to Police Station, where he was duly identified by accused-Taj Mohammad. Consequently, the applicant was also arrested, in this case.
8.5. The contraband, so recovered, was sent to forensic lab for chemical analysis and after receiving positive report, the police had filed the charge-sheet, against both the accused persons, including the applicant. The challan was submitted before the Court on 1st September, 2021.
9. The learned trial Court has charge-sheeted both the accused persons, accordingly, and as per the status report, the case is fixed for recording the evidence of the prosecution witnesses.
10. Lastly, in the status report, it has been apprehended that in case, the applicant is released on bail, he may not be available for trial and may allure the witnesses, ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 6 not to depose against them and he may again indulge in the same activities.
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11. On these submissions, a prayer has been made to dismiss the bail application.
12. Learned counsel for the petitioner, in this case, has relied upon the decisions of Hon'ble Supreme Court in Criminal Appeal No. 668 of 2020, titled as Amit Singh Moni versus State of Himachal Pradesh, decided on 12th October, 2020.
13. Admittedly, the contraband involved, in the present case, falls within the definition of 'commercial quantity'. Once this fact has been proved on file that the contraband, so involved, in the present case, falls within the definition of 'commercial quantity', the the rigors of Section 37(2) of the NDPS Act come into play. It is no longer res integra that both the conditions as enumerated in Section 37 of the NDPS must co-exist before releasing the applicant, on bail, during the pendency of the trial.
14. The Hon'ble Supreme Court, in a recent judgment, in Narcotics Control Bureau versus Mohit Aggarwal, reported in 2022 (10) SCALE 532, has elaborately discussed the ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 7 provisions of Section 37 of the NDPS, wherein, it has been held as under:
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"10. The provisions of Section 37 of the NDPS Act read as follows:
"[37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
2. every offence punishable under this Act shall be cognizable;
3. 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
(ii) where the Public Prosecutor opposes the application, 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.
(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.]"
11. It is evident from a plain reading of the non- obstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub- section (1) of Section 37 are also to be factored in. The conditions imposed in sub section (1) of Section 37 is ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 8 that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be .
satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira", a decision rendered by a Three Judges Bench of this Court, it has been held thus:
"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."
13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" and this Court has observed as below:
"20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 9 contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the .
case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
15. Before discussing the case of the applicant, according to the provisions of Section 37 of the NDPS Act, this Court has to consider the case of the applicant, in light of the decisions of Hon'ble Supreme Court in Amit Singh Moni's case (supra).
16. A perusal of the orders passed by Hon'ble Supreme Court in Amit Singh Moni's case (supra) shows that the said orders were passed by the Hon'ble Supreme Court, keeping in view the peculiar facts and circumstances of the case, as the trial against the accused, in that case, could not proceed further, due to Covid-19 pandemic situation, whereas, in the present case, there is nothing on record to show that there is any delay in the progress of the trial.
17. Before releasing the accused on bail, the twin conditions, as enumerated under Section 37 of the NDPS ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 10 Act are to be satisfied. From the stand taken by the police, in the status report, at this stage, it is not possible for this .
Court to give findings that the applicant is not involved in the commission of the alleged crime. Similarly, it can not be said, at this stage, that the applicant will not indulge in any offence, while on bail. The conditions of Section 37 of NDPS Act, are cumulative and not alternative. r
18. Moreover, while deciding the question of bail, it is the duty of the Court to maintain a delicate balance between individual liberty and larger interest of the society.
Releasing a person involved in such a crime, will also give a wrong signal to the society that the person, after being arrested, in such a crime, is still moving freely in the society.
19. So far as the argument of the learned counsel appearing for the applicant, qua the fact that the prosecution witnesses, who have been examined by the prosecution, before the learned trial Court, have not supported the case of the prosecution and nothing has been deposed by those witnesses, towards the alleged role played by the applicant-accused, is ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 11 concerned, the said fact, to the considered opinion of this Court, is to be considered by the learned trial Court, and, .
considering those facts and commenting upon the same, by this Court, would amount to interfering with the jurisdiction of the learned trial Court.
20. It is the sole prerogative of the learned trial Court as to how the evidence is to be considered. Admittedly, in this case, majority of the witnesses have been examined, but, merely, on this fact, it cannot be said that the rigors of Section 37 of the NDPS Act are not applicable, in this present case.
21. At the cost of repetition, it has vehemently been argued that the independent witness, PW-3 Surender Kumar, the conductor of the bus, in which accused-Taj Mohammad was travelling, when appeared in the witness box, has not supported the case of the prosecution and has turned hostile.
The evidence of the hostile witness does not efface from the record and it is for the learned trial Court to consider the portion of the statement of a hostile witness, which supports the case of the prosecution. The hostility of the witnesses is to be considered by the learned trial Court and evaluating the ::: Downloaded on - 03/04/2023 20:33:11 :::CIS 12 evidence of the hostile witness, by this Court, is also not permissible.
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22. Considering all these facts, there is no ground to pass any order in favour of the applicant, under Section 439 of the CrPC. Consequently, the bail application is dismissed.
23. Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
( Virender Singh ) Judge March 29, 2023 ( rajni ) ::: Downloaded on - 03/04/2023 20:33:11 :::CIS