Himachal Pradesh High Court
Sunil Kumar vs State Of Himachal Pradesh on 6 January, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2799 of 2022 Decided on: 6th January, 2023
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Sunil Kumar .....Petitioner
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Versus
State of Himachal Pradesh .....Respondent
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Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1 For the Petitioner:
For the Respondent:
r to Ms. Meera Devi, Advocate.
Mr. Pranay Pratap Singh, Additional Advocate General.
SI Veda Nand, Police Station Dhalli, District Shimla, present in person alongwith record.
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Jyotsna Rewal Dua, Judge
The petitioner seeks regular bail in FIR
No.203/2020, dated 27.08.2020, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') at Police Station Dhalli, District Shimla. The petitioner is facing allegation of possessing commercial quantity of the contraband in the said FIR.
2. The prosecution case against the petitioner in nutshell is that:-
1 Whether reporters of print and electronic media may be allowed to see the order?::: Downloaded on - 06/01/2023 20:34:23 :::CIS 2
2(i). On 27.08.2020, a police party was on routine patrol duty in its jurisdictional area. At around 4:00 pm, it stopped a vehicle (Jeep Compass) bearing Registration No.HP-06C-3536, coming from Kufri side and .
going towards Dhalli, District Shimla. The vehicle was being driven by its sole occupant, i.e. the petitioner. The police asked the petitioner about the purpose of his journey during COVID times. The petitioner statedly could not satisfactorily respond to the question. He appeared perplexed. The police personnel thought it prudent to carry out the search of the vehicle. The vehicle was searched in accordance with law after associating two independent witnesses. During search of the vehicle, two backpacks were found in the dickey of the vehicle. From one of the bags, cannabis weighing 2 Kg. & 89 Grams (2.089 kg.) was recovered. Currency notes of Rs.35,500/- were also found in the bag. The recovery led to registration of the FIR and arrest of the petitioner on 27.08.2020.
2(ii). During investigations, the petitioner statedly disclosed that he had purchased the cannabis from co-accused Tara Chand for Rs.1,30,000/- and that he was going to Shimla to sell the recovered contraband.
::: Downloaded on - 06/01/2023 20:34:23 :::CIS 32(iii). It also came out in the investigations that the vehicle in question belonged to one Abhay Roach. The latter disclosed that he and petitioner were friends having studied in the same University. On petitioner's request, he had .
handed over his vehicle to him. He was not aware about petitioner's dealings in drugs.
2(iv). The mobile number used by the petitioner was found to be belonging to one Ms. Tamanna. She disclosed that she was petitioner's friend. In the year 2015, petitioner had taken her Aadhar Card & Ration Card and got himself issued a Sim Card.
2(v). Upon dismissal of the anticipatory bail petition moved by the said co-accused Tara Chand, he was arrested on 07.10.2020. While in police custody, co-accused Tara Chand statedly disclosed having sold the recovered cannabis to the bail petitioner on 26.08.2020 against cash payment of Rs.1,30,000/-. Tower location of mobile phones used by both the accused persons was found to be same on the relevant date.
3. Learned counsel for the petitioner prayed for granting regular bail to the petitioner on the ground of sickness of petitioner's father and submitted that but for the petitioner, there is none else in his family, who can look ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 4 after his father. The other ground raised is that the petitioner has by now spent two years in custody, hence, he should be granted regular bail.
Learned Additional Advocate General opposed .
the bail plea and submitted that the petitioner is accused of possessing commercial quantity of the contraband, therefore, rigors of Section 37 of the NDPS Act are attracted. The petitioner has not been able to satisfy the conditions laid down under Section 37 of the NDPS Act.
Hence, he prayed for dismissing the bail petition.
4. Observations:-
4(i). The instant case pertains to recovery of commercial quantity of cannabis weighing 2.089 kilogram, hence, Section 37 of the NDPS Act gets attracted, 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;
(b) no person accused of an offence punishable for [offences under section 19 of 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."
::: Downloaded on - 06/01/2023 20:34:23 :::CIS 5In order to make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the aforesaid section:-
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(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail.
4(ii). With regard to Section 37 of the NDPS Act, Hon'ble Apex Court in AIR 2020 SC 721, State of Kerala Etc. Versus Rajesh Etc., held as under vide paras 19 and 20:-
"19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:-"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 6 section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming 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, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying .
mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking r illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates."
In reference to meaning of the words 'reasonable grounds', following was observed in para 21 of the judgment:-
"21. 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 ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 7 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 in addition to the limitations provided under the Cr.PC, 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 indeed uncalled for."
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(2021) 10 SCC 100, titled Union of India through Narcotics Control Bureau Versus Md. Nawaz Khan, was a case where commercial quantity of the contraband was recovered from a car from a place, where its wiper was connected to its front bonnet. The respondent (one of the accused persons) was also travelling in the said car. One of the arguments raised before the Hon'ble Apex Court was that the respondent was not in conscious possession of the contraband since it had been recovered from the wiper fitted on the front bonnet of the vehicle, of which he had no knowledge. Relying upon (2010) 9 SCC 608, titled Dharampal Singh Versus State of Punjab, (2015) 6 SCC 222, titled Mohan Lal Versus State of Rajasthan and various other precedents, Hon'ble Apex Court in (2021) 10 SCC 100, titled Union of India Versus Md. Nawaz Khan, held as under with respect to 'conscious possession' of the contraband:-
"25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 8 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P., this Court held that: (SCC p.472, paras 19- 23 & 26) "19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known .
to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt.
& Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "possession" uniforml[y] applicable to all situations in the context of all statutes. 23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
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26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 9 existence of the contraband and the intention based on this knowledge."
Regarding absence of recovery of the contraband from possession of the respondent (therein) it was held that .
even a finding of absence of possession of contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act. Relevant observations of the Hon'ble Apex Court are as under:-
"29. In line with the decision of this Court in Rattan Mallik (supra), we are of the view that a finding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act.
30. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh, a three judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage.
31-33. ...........
34. The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37:
34.1. The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-
accused.
34.2. The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him.
34.3. The quantity of contraband found in the vehicle is of a commercial quantity.
34.4. The contraband was concealed in the vehicle in which the respondent was travelling with the co-accused.
35. The impugned order of the High Court, apart from observing that no contraband was found from the personal search of the respondent has ignored the above circumstances. The High ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 10 Court has merely observed that: (Mohd. Nawaz Khan case, SCC Online All para 10) "10. In view of the above, the twin conditions contained under Section 37(1)(b) of the NDPS Act stand satisfied. This Court is of the view that if there is reasonable ground, the applicant is entitled to be released on bail."
36. The High Court has clearly overlooked crucial requirements .
and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Moreover, it has emerged, during the course of the hearing that after the respondent was enlarged on bail he has consistently remained away from the criminal trial resulting in the issuance of a non-bailable warrant against him. The High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do."
In AIR 2022 S.C. 3444, decided on 19.07.2022 (Narcotics Control Bureau Vs. Mohit Aggarwal), the appellant-NCB was aggrieved of an order passed granting post-arrest bail to the respondent-accused in a case involving recovery of commercial quantity of the contraband. The Hon'ble Supreme Court allowed the appeal filed by NCB by holding that 'the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. The focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences for which he has been ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 11 charged with and he is unlikely to commit an offence under the Act while on bail'. On facts of that case, it was observed as under:-
"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 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 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.
18. In our opinion the narrow parameters of bail available under Section 37 of the Act, have not been satisfied in the facts of the instant case. At this stage, it is not safe to conclude that the respondent has successfully demonstrated that there are reasonable grounds to believe that he is not guilty of the offence alleged against him, for him to have been admitted to bail. The length of the period of his custody or the fact that ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 12 the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act."
4(iii). In the instant case, the record shows that a .
previous bail petition moved by the petitioner under Section 439 Cr.PC, bearing Cr.MP(M) No.106 of 2021, was dismissed on merits by a Co-ordinate Bench of this Court vide order dated 04.02.2021. SLP(Crl.) No.8411/2021 preferred against this order was dismissed by the Hon'ble Apex Court on 16.11.2021. Another regular bail petition moved by the petitioner, being Cr.MP(M) No.2115 of 2022, was dismissed as withdrawn vide order dated 20.09.2022.
The recovery of commercial quantity of the contraband (2.089 Kilogram of Cannabis) was from the vehicle driven by the petitioner. Learned counsel for the petitioner could not point out any ground upon which this Court could record its satisfaction of provisions of Section 37 of the NDPS Act.
The only submission advanced is that petitioner has by now completed two years in prison. Mere fact of staying in custody for two years cannot be a ground in the given facts of the case to grant regular bail to the petitioner in the face of provisions of Section 37 of the NDPS Act. Trial of the case is stated to be underway. The status report records that prosecution evidence is being led and the matter is now ::: Downloaded on - 06/01/2023 20:34:23 :::CIS 13 fixed for recording statements of remaining witnesses on 11th and 12th January, 2023.
Insofar as the ground taken by the petitioner regarding sickness of his father is concerned, it may be .
observed here that on the same ground, the petitioner was twice enlarged on interim bail vide orders passed on 14.07.2021 in Cr.MP(M) No.1311 of 2021 and 14.09.2021 in Cr.MP(M) No.1750 of 2021. His third bail petition [Cr.MP(M) No.300 of 2022] seeking release on interim bail on the same ground of sickness of his father was dismissed on 11.02.2022. Instant petition though has been filed seeking release of petitioner on regular bail, however, one of the grounds urged is alleged sickness of his father. The petitioner has placed on record an unsigned computerized form. According to learned counsel for the petitioner, in terms of this form, petitioner's father, aged about 56 years, has been referred by ECHS, Shimla on 20.12.2022 for further treatment to any ECHS Empanelled Medical Facility. This sole document is not sufficient to record satisfaction at this stage that petitioner's father requires petitioner's physical presence for the illness alleged to be suffered by him. The nature and extent of alleged illness of petitioner's father is also not clear from this document.
::: Downloaded on - 06/01/2023 20:34:23 :::CIS 14The petitioner has criminal history inasmuch as one FIR No.55/2019, registered against him at Police Station Sundernagar, District Mandi, under Sections 20 and 29 of the NDPS Act, is yet pending trial before the .
Court of competent jurisdiction.
In view of the above, I find no merit in the instant petition and the same is accordingly dismissed alongwith pending miscellaneous application(s), if any.
It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
Jyotsna Rewal Dua
January 06, 2023 Judge
Mukesh
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