Himachal Pradesh High Court
Maan Singh vs State Of H.P on 25 June, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2024:HHC:3934 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 1110 of 2024 Reserved on : 19.06.2024 Decided on : 25.06.2024 .
Maan Singh ... Applicant
Versus
State of H.P. ...Respondent
____________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?
_________________________________________________ For the Applicant : Mr. Sanjeev K. Suri, Advocate.
For the Respondent : Mr. Mohinder Zharaick,
Additional Advocate
General.
Virender Singh, Judge
Applicant Maan Singh has filed the present application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as 'the Cr.P.C'.), for releasing him, on bail, during the pendency of the trial, in case FIR No.125 of 2023, dated 15.9.2023, under Sections 20, 25 and 29 of the Narcotic Drugs and ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 2 ( 2024:HHC:3934 ) Psychotropic Substances Act (hereinafter referred to as 'the NDPS') registered with Police Station, Gagret, District Una, H.P. .
2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated, in the present case, as, the parcel/box does not belong to him and he has no knowledge about the material inside the boxes.
3. As per the applicant, he is permanent resident of the address, as mentioned, in the application, and having deep roots in the society.
4. According to the applicant, the investigation in the present case is complete and as such, his judicial custody is nothing, but, pretrial punishment, which, is prohibited under the law.
5. On the basis of above facts, the applicant, through his counsel, has given certain undertakings, for which, he is ready to abide by, in case, released on bail.
6. The applicant has earlier tried his luck by ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 3 ( 2024:HHC:3934 ) moving similar application, before learned Special JudgeII, Una, District Una, which was dismissed on 7.12.2023.
.
7. On these submissions, a prayer has been made to allow the bail application.
8. When put to notice, police has filed the status report, disclosing therein, that on 15.9.2023, Additional Superintendent of Police Shri Rajender Kumar, ANTF Kangra, has submitted the ruqua to Police of Gagret, for the registration of the FIR. In the ruqua, it has been mentioned by the Additional Superintendent of Police, Shri Rajender Kumar, ANTF, Kangra that he, alongwith other police officials, was on patrolling duty and the duty to detect the crime, relating to narcotic drugs.
8.1. On 15.9.2023, at about 7: 30 p.m., he i.e. I.O.
was present on the gate of Shiv Bari temple. At that time, he received a secret information, with regard to indulgence of one Varinder Kumar @ Bindu, s/o Shri Vikram Chand, R/o ward No. 5, NAC Gagret, Tehsil ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 4 ( 2024:HHC:3934 ) Ghanari, District Una, in the business of selling the narcotic substance.
8.2. As per the information, a big haul of the .
medicines was being transported in pickup No. HP 36B8124 to his residential house from Army Ground, Gagret. The said information was found to be authentic and reliable. It has also been informed that in case, the said vehicle is checked, large quantity of the narcotic substances, could be recovered.
8.3 It is the further case of the I.O. that in case, the efforts to obtain the authorization letter/search warrant would have been made, in that eventuality, contraband could be removed. Thereafter, Drug Inspector Rajat Sharma was informed and asked to come near the Army Ground. Thereafter, the I.O.
alongwith the police officials had proceeded towards the Army Ground, Gagret. The information under Section, 42(2) of the NDPS Act, was prepared and was submitted to SDPO, Amb, through LHC Aruna Kumari, ANTF, Kangra. When, the I.O., alongwith police officials ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 5 ( 2024:HHC:3934 ) reached outside the Army Ground, Gagret, at about 8:10 p.m, he noticed two persons, namely Avinash Bhardwaj and Kusum Lata, who is Vice President of .
Nagar Panchayat, Gagret. Both of them were apprised about the secret information, as received by the I.O.
and associated in the investigation of the case.
8.4 When, they entered the Army Ground, then, they noticed the aforesaid pickup, being driven by its driver, coming towards Army Ground. The I.O., with the help of other police officials, had stopped the said vehicle. In the meanwhile, Drugs Inspector Rajat Sharma also reached there, who was also associated in the investigation, in the presence of local witnesses.
The I.O. has shown his identity card to both the persons, sitting in the vehicle. Thereafter, they were inquired about the white plastic sack. Both of them had disclosed that this box (builty) belongs to Varinder Kumar @ Bindu, S/o Shri Vikram Chand. In the presence of these witnesses, both the said persons were directed to come out. Thereafter, a white coloured sack ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 6 ( 2024:HHC:3934 ) was opened and a card board box, containing 60 card board boxes were found in it, and in the other box, 59 card board boxes, were found. Drugs Inspector Rajat .
Sharma checked the aforesaid boxes, in the presence of the witnesses, and on opening the boxes, Cap.
Paracetamol, Dicyclomine, Hydrocholride and Tramadol Hydrochloride capsules Proxywel spas were found.
Total 14,400 capsules were found in the box, which has been marked as markI. In the other box, which has been marked as mark2, 14160 capsules were found. Thus, total 28560 capsules were found.
8.5 On inquiry, the driver of the pickup disclosed his name as Maan Singh (applicant), S/o Munna Ram, VPO Gagret, Tehsil Ghanari, District Una.
8.6 Other codal formalities were completed.
Thereafter, ruqua was prepared and submitted to Police Station, Gagret, for the registration of the FIR.
8.7 Initially, the investigation was conducted by Additional S.P. Rajender Kumar and thereafter, the same was handed over to I.O./Inspector/Incharge, ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 7 ( 2024:HHC:3934 ) Police Station, Gagret, Sh. Sunny Guleria. Spot map was prepared. Accused Maan Singh (applicant) and Mahasu Ram were inquired. Thereafter, the matter was .
inquired from Bhupender Dutta, S/o Sukhdev Chand Dutta, who was running a chemist shop in Gagret. He was also associated in the investigation. During investigation, accused Mahasu Ram disclosed that the photo of goods receipt of the parcel was forwarded to him by Varinder Kumar @ Bindu, through whatsapp, and he was directed to receive the said parcel from Kamal Transport, Gagret, and hand over the same to Varinder Kumar at his home.
8.8 On inquiry, Bhupender Dutta disclosed that the parcel containing contraband belong to Varinder Kumar @ Bindu. However, the bill of the same was issued in the name of Dutta Medical Agency, Gagret. In lieu of the issuance of bill, Varinder Kumar @ Bindu used to pay five boxes of Tramadol free of cost to him.
8.9 It is the further case of the Police that a number of persons were found involved in the case. The ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 8 ( 2024:HHC:3934 ) applicant was arrested on 15.9.2023. All the four persons have been medicolegally examined. On 16.9.2023, they were produced before the Court of .
learned Chief Judicial Magistrate, Una, who had remanded them to Police custody, for three days.
8.10 On 16.9.2023, one Vishal Jaswal informed the Police that one parcel in the name of Dutta Medical Agency has been received through Kamal Transport, upon which, Assistant Drugs Inspector Shashi r Pal reached at the spot, where owner of Kamal Goods, through Vishal Jaswal, has produced one parcel alongwith carbon copy of GR No. A59198, dated 14.9.2023, and one bill of Jan Priya Pharma 27/16, Chhoti Sabzi Mandi Janakpuri, New Delhi, to the police. Said bill was in the name of Dutta Medical Agency, Gagret. When, the said parcel was opened in the presence of witnesses, the same was found containing 25,000 tablets of Tramadol Hydrochloride tablets 100 mg Clovedol 100 SR, which is a prohibited drug. The above medicines were taken into possession.
::: Downloaded on - 25/06/2024 20:31:25 :::CIS 9( 2024:HHC:3934 ) 8.11 Thereafter, on 16.9.2023, house of the accused Varinder Kumar was searched and during search, 210 boxes of liquor/beer were recovered. In this regard, FIR .
No. 127 of 2023, dated 16.9.2023, under Section 39A of the HP Excise Act was registered.
8.12 During investigation, mobile phones of accused, bearing Nos. 9816042336, 8278733069, 8580581311, as well as, phone of accused Maan Singh (applicant), r bearing No. 9816503646 and, of Bhupender Dutta, bearing No. 9816956481, were taken into possession.
8.13 During investigation, it was found that according to GR No. A59051, dated 12.9.2023, and GR No. A 59198, dated 14.9.2023, parcel received through Kamal Goods Carrier Delhi, in the name of Dutta Medical Agency, Gagret, were forwarded by Jan Priya Pharma 27/16 Chhoti Sabzi Mandi, Janakpuri, New Delhi. However, when, the I.O. verified the said fact, it was found that the said bills, were not issued by the said firm.
::: Downloaded on - 25/06/2024 20:31:25 :::CIS 10( 2024:HHC:3934 ) 8.14 On 20.9.2023, shop of Bhupender Dutta was searched. During search, documents, pertaining to GR No. 58021, dated 23.8.2023 and invoice No. 00325, .
dated 23.3.2023, were found to be issued by Jan Priya Pharma Company. However, as per these invoices, these medicines were not found in the medical store.
8.15 As per letter of the Director General of Police, Himachal Pradesh, dated 26.9.2023, investigation of the case was transferred to CID. Consequently, a Special Investigating Team, under the leadership of Praveen Dhiman, HPS, Additional S.P., Cyber Crime, was constituted. On 30.9.2023, the Special Investigation Team had taken over the investigation.
8.16 During investigation, it was found that recovered parcels, containing prohibited drugs were received at Jaswal Goods Carrier, Gagret, through Kamal Goods Carrier. It was also found that in the name of Dutta Medical Agency, other transports have also received consignment/parcels.
8.17. It was also found that Varinder Kumar was ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 11 ( 2024:HHC:3934 ) earlier running Chemist shop, under the name and style of 'Siddhi Vinayak', and now, he is running the same, under the name and style of 'M.B. Pharma'. In .
this regard, delivery register and challan forms were also obtained. On the perusal of the same, it was found that through these transports, consignment/parcels, worth crores of rupees, were found, in the name of Sidhi Vinayak, M.B. Medicine and Dutta Medical Agency. r 8.18 The contraband, so recovered, was sent to SFSL, Junga. Weight of the parcel was found to be 15.681 kg. The said drug was found to be sample of Tramadol capsules. In addition to this, the weight of the parcels, which has been marked as markB, containing Clovedol 100 SR, was found to be 8.450 kg.
Manufacturer of the same was found to be the Akums Drugs and Pharmaceuticals IIE SIDKUL Haridwar.
Consequently, company officials of Pure & Cure Healthcare Pvt. Ltd., Plot No. 26A, 2730 Sector 8A, IIE SIDKUL, Haridwar were associated in the investigation.
::: Downloaded on - 25/06/2024 20:31:25 :::CIS 12( 2024:HHC:3934 ) On inquiry, it was found that their company is the subsidiary of Akums Drugs & Pharmaceuticals Ltd.
Company. The factory of batch No. P06CA09 was not .
found to have manufactured Proxywel Spas medicine.
8.19 As per the further stand of the Police, from the recovered strips, eight digit number is found to be marked, which was 20130552. As per officials of the company, number 20130552 was the unique number of their company, being packing material Artwork Code number. The company used to get printed lay out from UTS Foils and Packaging and Perfect Print Pack.
Similarly, police has also got haul of Clovedol tablets.
However, batch number was found to be erased. The other 8 digit number 20161349 was found to be printed on it. About this number, the company officials disclosed that this number is packing material Artwork Code number. The company used to get the said design Artwork from Shree Ji Enterprises.
8.20 During investigation, the I.O. also found that the Varinder Kumar has smuggled the psychotropic ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 13 ( 2024:HHC:3934 ) substance from Jan Priya Pharma through Kamal Goods Transport. These parcels were not sent by Jan Priya Pharma, Delhi, nor any invoice was found in their .
shop.
8.21 During investigation, it was found that on 14.9.2022, when the Police recovered the substance from vehicle No. HP 36B8124, Accused Varinder Kumar has forwarded GR No. 59051, dated 12.9.2023 and GR No. A 59198, dated 14.9.2023 to Mahasu Ram, on his phone, through whatsapp. Accused Virender Kumar directed Mahasu Ram to receive parcel bearing GR No. 59051, dated 12.9.2023, and GR No. 59198, dated 14.9.2023. In the mobile handset, which was taken into possession from Mahasu Ram, photos of aforesaid GR Nos were found, whereas, in the mobile phone, of Accused Varinder Kumar, photographs of aforesaid GR Nos. were not found. Both these handsets and GR Nos. have been sent to RFSL, Dharamshala, for analysis.
8.22. During investigation, it was found that ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 14 ( 2024:HHC:3934 ) the handset on which, accused Varinder Kumar on 14.9.2023, had forwarded the photographs of aforesaid GR Nos. were having two sim cards, bearing No. .
9816042336 and 8278733069. The IMEI number of these two slots were found to be 864372062985240 and 864372062985250, whereas, accused Varinder Kumar on 15.9.2023, produced the phone make Oppo, bearing IMEI No. 866114046756195 and 866114046756187.
8.23 According to the police, variation in these numbers was due to the fact that he used to conceal mobile handset, used for transporting of drugs through Mahasu Ram and produce some other mobile phones to the Police. These facts have been highlighted to show that accused is very clever person and he may destroy the evidence. It was also found during investigation that mobile handset, with the help of which, accused Varinder Kumar has forwarded the whatsapp messages to Mahasu Ram, in that mobile handset, w.e.f.
15.9.2023 to 6.10.2023, mobile phone numbers ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 15 ( 2024:HHC:3934 ) 8627872324 and 7807786506 were found to be operating, whereas, according to customer application form, aforesaid mobile numbers were issued in the .
name of one Abhishek, s/o Ambika Prasad. Mobile Number 7807786506 was found in the name of Nisha Devi wife of Tilak Raj.
8.24 On 15.10.2023, search warrant of house and shop of accused Varinder Kumar was obtained. During search, some objectionable documents were found and Indian currency of Rs. 4,42,700/ and foreign currency of Rs. 1,40,000/ was found. On inquiry, Meenakshi Sharma could not give satisfactory reply. However, she has produced empty box of Oppo, on which EMEI 864372062985252 and 864372062985245 were found to be printed. It has also been found that accused Varinder Kumar, in the name of Dutta Medical Agency had transported the consignment worth cores of Rupees from Jan Priya Pharma, between 2020 to 2023. These facts have been highlighted just to show that these are forged documents.
::: Downloaded on - 25/06/2024 20:31:25 :::CIS 16( 2024:HHC:3934 ) 8.25 Applicant is stated to be a member of the interstate drug cartel, in case, the applicant is released .
on bail, he may flee from the justice.
8.26. Lastly, it has been apprehended that in case, the applicant is ordered to be released on bail, it will give a wrong signal to the society and he may again indulge in the similar activities.
9. On the basis of above facts, a prayer has been made to dismiss the application.
10. As per the status report, investigation, in the present case, is complete and the report under Section 173(2) Cr.PC, has been filed in the competent Court of law.
11. As per report of the Police, the contraband, so recovered, was sent for chemical analysis to SFSL, Junga, by putting the same into parcels. Parcel MarkA was found containing Proxywell Spas, and total weight of the same was found to be 15.651 kg, and as per the report of the Laboratory, the same was found to be the ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 17 ( 2024:HHC:3934 ) sample of Tramadol, whereas, parcel MarkB was containing tablets known as Clovedol 100 SR, and the total weight of the same was found to be 8.450 kg. As .
per the report of the laboratory, the same was also found to be the sample of Tramadol.
12. In view of the notification issued by the Ministry of Finance (Department of Revenue), dated 26.4.2018, the Tramadol has been entered at serial No.110 Y, in the list of psychotropic substances, which are specified in the schedule to the NDPS Act. The small quantity is stated to be 5 grams and commercial quantity is stated to be 250 grams. Meaning thereby, the contraband, which was allegedly recovered, in the present case, falls within the definition of 'commercial quantity'.
13. Once, it has been held that the contraband, so recovered, falls within the definition of 'commercial quantity', then, rigors of Section 37 of the NDPS Act are applicable, in the present case.
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14. The Hon'ble Apex Court in a recent decision, in case titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444, has .
reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under:
"10. The provisions of Section 37 of the NDPS Act read as follows:
"[37. Offences to be cognizable and nonbailable.- (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 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.::: Downloaded on - 25/06/2024 20:31:25 :::CIS 19
( 2024:HHC:3934 ) (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 nonobstante clause inserted in subsection (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 subsection (1) of Section 37 are also to be factored in. The conditions imposed in subsection (1) of Section 37 is 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", (2004) 3 SCC 549, 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 ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 20 ( 2024:HHC:3934 ) 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."
[emphasis added]
13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" (2020) 12 SCC 122 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 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 ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 21 ( 2024:HHC:3934 ) 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." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of SubSection (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, 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. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."
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15. So far as the arguments of learned counsel appearing for the applicant, qua delay in lodging the FIR, is concerned, at this stage, no adverse inference .
can be drawn from this fact, as, the prosecution has every right to explain the reasons for not lodging the FIR promptly, during the course of trial.
16. In this case, on the basis of the secret information, received by the Investigating Officer, regarding the indulgence of the applicant, in the sale of narcotic substance, the compliance of Section 42(2) of the NDPS Act has duly been prepared and submited to SDPO Amb through LHC Aruna Kumari, ANTF, Kangra, as such, no benefit can be derived by the applicant from this fact.
17. As per the allegations levelled against the applicant, he along with Mahasu Ram was found in vehicle No.HP 36B8124. He is also stated to be the owner of the said vehicle, which was being used for transporting the consignment containing the contraband. He was arrested on the spot and from his ::: Downloaded on - 25/06/2024 20:31:25 :::CIS 23 ( 2024:HHC:3934 ) vehicle, the contraband i.e. Cap. Paracetamol, Dicyclomine, Hydrocholride and Tramadol Hydrochloride capsules Proxywel spas, was recovered, .
which were 28560 capsules in number.
18. Considering all these facts, the apprehensions, which have been expressed, by the Police, in the status report, and mentioned above, cannot be said to be unfounded, at this stage.
19. rThe cumulative effect of the above discussion is that the applicant is not able to make out a case to meet out the ingredients of Section 37(2) of the NDPS Act, as, it is not possible for this Court to come to the conclusion that the accused has not committed the offence nor according to the facts and circumstances of the present case, it can be said that in case, he is released on bail, he may not commit any offence.
20. Considering the observations and discussions, made above, this Court is of the view that the applicant is not entitled to relief of bail, at this stage.
As such, the present application is dismissed.
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21. Any of the observations, made hereinabove, 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 June 25, 2024 (ps) ::: Downloaded on - 25/06/2024 20:31:25 :::CIS