Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 16 March, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No.489 of 2024
Decided on: 16th March, 2024
__________________________________________________________
Surinder Kumar ....Petitioner
.
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For the petitioner : Mr. Sanjeev Kumar Suri,
Advocate.
For the respondents: Mr. Jitender Sharma,
r Additional Advocate General.
Ranjan Sharma, Judge (Oral)
The petitioner-accused (Surinder Kumar) has come up before this Court, seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, originating from FIR No.139 of 2023, dated 17.10.2023, under Section 21, 8(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Gagret, District Una, Himachal Pradesh.
FACTUAL MATRIX 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/04/2024 20:36:02 :::CIS -2-2. The case set up by the bail petitioner [Surinder Kumar] is that the bail petitioner has been arrested by the Police of Police Station Gagret, District Una, Himachal .
Pradesh, on 17.10.2023 in FIR No.139 of 2023, registered at Police Station under Sections 21, 8(C) of the Narcotic Drugs and Psychotropic Substances Act. The case set up is that on 17.10.2023, the police party while on traffic checking noticed a motorcycle Splendor bearing No. HP72A-2979 with one rider. On noticing the police, the bail petitioner [Surinder Kumar] became perplex. On being asked by the police, he disclosed his name as Surinder Kumar-applicant/accused.
The bag containing the Heroin/Chitta, weighing 5.65 grams was recovered from the bag, being carried by the bail petitioner (Surinder Kumar) herein.
2(i). After apprehending the bail petitioner, the codal formailities under Section 50 of the NDPS and other requisite formalities under the Act were undertaken. Thereafter the Rukka was prepared leading to the registration of the FIR.
2(ii). Consequent upon the registration of the FIR on 17.10.2023, the bail petitioner [Surinder Kumar] approached the Learned Special Judge-I Una, vide Bail Application ::: Downloaded on - 05/04/2024 20:36:02 :::CIS -3- No.470 of 2023 but the same was dismissed on 07.02.2024 as under:
5. On the other hand, Learned Public Prosecutor for the State has argued that applicant is habitual offender.
.
Already two cases of similar nature have been registered against him, in PS Amb pending adjudication before the Courts, bearing FIR No.68/21 and 3/23, Ld. PP for the State has also argued that there are also allegations against the applicant that he had affixed old number plates of another motorcycle on motorcycle and same was being used to transport the contraband as such he had also committed for offence u/s 420 IPC. Ld. PP has argued that keeping in view all these factors r together, if applicant is released on bail he may intimidate the witnesses and effect the trial. As such, prayed that application be dismissed.
6. I have given deep thought to the rival contentions and scrutinized the record carefully.
7. The applicant has been arrested by the police in connection with case FIR No. 139/23 dt 17.10.2023 under Section 21, 8C of the ND&PS Act registered at PS Gagret with the allegation that on 17.10.2023 when police party led by HC Vijay Kumar, was present at old Amb road Gagret near Swan foundation Kaloh Velly at about 3.05 PM and intercepted a motorcycle bearing No. HP72A-2979 over which accused/applicant was riding and had thrown a small box from his pocket from which 5.65 gm heroin was recovered, The contention raised by the counsel for applicant that applicant is innocent ::: Downloaded on - 05/04/2024 20:36:02 :::CIS -4- and has been falsely implicated cannot be decided at this stage and the same would be decided during trial. At the time of considering the bail application, the detail scrutiny of the evidence is not required, only following factors are required to be taken into .
consideration:-
(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension or the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
In the present case, there are serious allegations against the applicant that he was transporting heroin to the extent of 5.65 gram. The FSL report also confirms the same to be heroin having weight 5.431 grams. It also comes in status report that he had allegedly purchased this heroin from some unknown truck-drivers who could not be found. Further, as per his antecedents verified by the police, two similar cases have already been registered against him at PS Amb pending adjudication before courts. There are allegations against him, that he used motorcycle with old number plate of another motorcycle to transport the contraband. When all ::: Downloaded on - 05/04/2024 20:36:02 :::CIS -5- these factors are taken together for consideration, I am of the considered view that if applicant is released on bail, he may intimidate the witnesses and tamper with prosecution evidence and also indulge in similar trade again which will destroy the .
younger generation. Hence, I deem it not appropriate to release the applicant on bail at this stage. Hence, the application filed by the applicant being merit-less is dismissed. The observations made herein- above shall have no bearing on merits of the case and are only for disposal of the present bail application. File after its due completion be consigned to record room."
It is in this backdrop, the bail petitioner (Surinder Kumar) has come up before this Court, seeking pre-arrest bail with the averments that the bail petitioner has deep roots in the society and he has nothing to do with the commission of the alleged offence. It is stated that the bail petitioner has been falsely implicated at the behest of some other persons. It is further averred that the bail petitioner is innocent and there is no likelihood of absconding and jumping the bail, if granted by this Court. It is further averred that now nothing is to be recovered and the investigation is complete and no fruitful purpose will be served by keeping him in custody.
::: Downloaded on - 05/04/2024 20:36:02 :::CIS -6-3. Apart from this, the bail petitioner has averred that he shall participate in the investigation as and when called for by the Investigating Agencies and shall .
undertake to appear in the trial and shall not cause any threat or promise to any person acquainted with the facts of the case or the witnesses. It is further averred that in case the bail petitioner is released on bail he shall abide by all conditions as may be imposed by this Court. Learned counsel for the petitioner submits that the bail petitioner has been allegedly involved in contraband relating to inter mediate quantity, therefore, he may be released on bail.
4. Heard Mr. Sanjeev Kumar Suri, learned Counsel for the bail petitioner and Mr. Jitender Sharma, Learned Additional Advocate General for the Respondent(s).
5. Before dealing with the present application, it is necessary to take note of the provisions of Section 438 of the Cr.P.C. and Sections 8(c) & 21 of the NDPS Act, under:
"Section 438 of the Code of Criminal Procedure:::: Downloaded on - 05/04/2024 20:36:02 :::CIS -7-
Direction for grant of bail to person apprehending arrest:
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High .
Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely--
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from r justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub- Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
::: Downloaded on - 05/04/2024 20:36:02 :::CIS -8-(1-A) Where the Court grants an interim order under sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a .
reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice] (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including--
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without ::: Downloaded on - 05/04/2024 20:36:02 :::CIS -9- warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first .
instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.
Section 8(c) of the NDPS Act reads as under:
(c) produce, manufacture, possess, sell purchase, transport, warehouse use, r consume, import inter-State, export inter-
State, import into India, export from India or tranship any narcotic drug or psychotropic substance.
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 ule 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;
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(b) where the contravention involves quantity, lesser than commercial 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 r exceeding two lakh rupees.
6. 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 pre arrest bail-anticipatory bail or even post arrest-regular bail (as the case may be) is to be examined /tested within the parameters prescribed of the Code of Criminal Procedure 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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 these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
6(i). While dealing with the case for grant of regular bail, under Section 439 Cr PC, the three judge 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 that the nature of the crime has a huge relevancy, while considering claim for bail.
6(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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the r 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;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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(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.
6(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. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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to grant or refuse bail is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or .
regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above.
8. 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 in support thereof, the severity of punishment prescribed ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the .
accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state.
In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
9. In order to examine the claim for bail, under NDPS Act, this Court deems it necessary to have a recap of the Preamble of the Act, which 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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Narcotic Drugs and Psychotropic Substances and for matters connected therewith"
10. While dealing with the object of the NDPS Act, the Hon'ble Supreme Court in case of Durand .
Didier, (1990) 1 SCC 95, has mandated that devastating menace 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 :
r 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 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.::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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 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 r 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 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....".
10(i). In Hira Singh versus Union of India, (2020) 20 SCC 272, the Hon'ble Supreme Court has mandated ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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that the provisions of the NDPS are not to be construed liberally but to ensure effective implementation of rule of law so as to achieve the object of enactment {NDPS} by .
curbing and stringently deal with nefarious activities/ illegal trafficking in powerful, dangerous and injurious illegal street drugs 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 r 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 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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 r 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, 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.
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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 ...."
11. Even a suspect or an accused under NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely on the ground that the quantity of contraband, allegedly involved, is either small or intermediate. However, while considering the prayer for bail, even in offences under the NDPS, relating to either small quantity or an intermediate quantity, still the claim is required to be tested in the backdrop of Section(s) 438 or 439 of Code of Criminal Procedure {herein, Cr P C}, and also in the context of the time tested broad parameters mandated by the Hon'ble Supreme Court, in Paras 7 to 10 referred to above.
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11(i) Merely because a bail petitioner is implicated for accusation relating to either small or intermediate quantity of contraband cannot ipso facto confer a right .
of bail, on such a suspect or accused. The Courts cannot feign ignorance that it is the modus operandi of Drug Mafia's or Master-minds or King Pins of such trade, who primarily act through persons who are either indigent or poor or are unemployed or have unwarranted who are and suffers r of to unexpected financial financial liability expectations etc., by initially or alluring them to act as small peddlers towards trafficking of small and intermediate quantity of contraband, with the predesigned calculation that they may have an easy escape, even if they are apprehended in view of the quantity being small or intermediate. Day in and day out, the instances are endlessly flowing where, these peddlers have turned out to be habitual offenders, being involved in numerous cases under NDPS and under other Statutes, which of course, becomes an important ingredient while examining claim for bail.
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11(ii). 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 towards the accusation or culpability or involvement then, in the larger interest of the society the rule of law needs to be strictly enforced and any drug peddler or trafficker or person cannot be permitted to be enlarged on bail, ipso facto, merely because to the quantity involved is either small or intermediate. Enlarging such r of contraband persons on bail, shall certainly amount to sacrificing the state and of course the nation to such nefarious activists.
11(iii). To attain the objective of the NDPS Act and to ensure the rule of law, such persons who are prima facie involved in nefarious drug abuse, such person have no vested right to be enlarged on bail under the pretext of alleged claim of violation of their liberty in Article 21 for the reason, that the alleged assertion of infringement of personal liberty has to succumb to the larger interest of the society, ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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which obviously is at a much higher pedestrian. The plea of seeking bail, claiming violation of personal liberty is a farce when, the liberty of a person ends where .
liberty of another including the society at large is in sought to be or actually violated, as in this case.
11(iv). Notably, the personal liberty under Article 21 to some extent may carry weight depending 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 that event, individual right shall have to succumb to 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 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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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 is jeopardized, for the rational collective does not countenance an anti-social or anti collective act.
30. We may usefully state that when the r 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 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 ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
11(v). In considered view of this Court, the ipso-
.
facto claim for bail, on the pretext that the quantity involved is small or intermediate, despite there being a prima facie case or reasonable ground of involvement shall result in adding wings to their flight and giving leverage to such suspect-accused to continue, expand and flourish in inhumane trade and nefarious activities.
Such persons are bent upon, not only to destroy the society at large but are exploiting the youth in the prime of their life, by depriving them of their youth, by curtailing fundamental right to live with dignity, by adversely affecting the health of such a person-who falls prey to such illegal activities.
11(vi). In the above backdrop, the general principle is that when, a bail petitioner approaches a Court for bail {pre-arrest or regular bail} under NDPS Act and a Court forms a prima facie opinion on the basis of available material, that there is a prima facie case or ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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reasonable grounds pointing towards the accusation of an offence, be it relating to a small or intermediate quantity of contraband therefore, such an accused has .
neither any automatic right nor can the privilege of bail be extended as a rule.
11(vii). The exception to this principle is that the enlargement on bail {be it relates to either small quantity or intermediate quantity of contraband} can be extended, on case to case basis, after taking into account that the prima facie accusation does not points out towards involvement and the past conduct being unblemished coupled with the fact that a bail applicant fulfils the broad parameters mandated by the Hon'ble Supreme Court referred to above.
12. In considered view of this Court, admittedly even if the rigors of Section 37 of the NDPS Act are not applicable then also, the bail petitioner cannot seek leverage or licence to seek bail when, the contraband in question i.e. Heroin/Chitta of 5.65 grams was recovered from him.
In case the benefit of enlargement of bail is extended to the petitioner, at this stage, therefore, the same may entail ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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conferring advancement and extending licence to such illegal activities.
13. The modus operandi adopted by such peddlers .
who resort to drug trade, by adopting the modes operandi starting from smallest or intermediate quantity, is based on their forcing the fact that even if they are apprehended they be enlarged on bail. Surely, this cannot be the object of the statute. Such drug peddlers, who involved in small or intermediate quantity of contraband, are the termites in the society. It is high time that while considering the bail application of such bail petitioners, who resort to small quantity or intermediate quantity trafficking etc. needs, to be dealt with by iron hands.
14. In this background, this Court is of the conscious of the fact that a balance has to be carved out between the liberty of the accused vis-à-vis the danger of the justice being throttled by release on bail of the bail petitioner.
Learned Special Judge has also rightly held that once the contraband was seized/recovered from the bail petitioner, coupled with the fact that in case the bail is granted then, the danger of the justice being throttled by grant of bail is writ ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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large in the instant case for the reason that such bail petitioners cause threat to the society and spoil the young generation at large.
.
15. Moreover, the enlargement of the bail petitioner from whom the contraband is recovered, if enlarged on bail, will entail every likelihood of committing the offence again for the reason that in Para 2 of the judgment the conduct of the bail petitioner who is involved in Narcotic Drugs r and to FIR No. 68 of 2021, under Sections 21 and 29 of the Psychotropic Substances Act and FIR No. 3 of 2023 under Section 21 of the NDPS Act have also been registered. This Court cannot feign ignorance to the fact that the registration of two additional FIRs in addition to the present FIR in question reflects the conduct and behavior of the bail petitioner. In case such bail petitioners are enlarged on bail, it will definitely amount to conferring a licence and granting leverage to these bail petitioners to indulge in illegal activities, as has been done by the bail petitioner in the past also. The liberty of the bail petitioner, and the ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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plea that Section 35 of the NDPS Act is not attracted, cannot in itself be a ground to claim bail [anticipatory or regular as of right] when, the prima facie accusation .
points out towards the involvement of the bail petitioner in the instant case. The registration of two additional FIRs, under the NDPS Act also point out towards the conduct behavior and modes operandi of the bail petitioner.
16. BAIL ORDER LEARNED TRIAL COURT:
Before examining the claim for regular bail in the instant case, it would be relevant to take note of one aspect that the bail petitioner after registration of F.I.R on 17.10.2023 had moved bail application No 470/2023 on 07.02.2024 before the learned Special Judge-I, Una, District Una, H.P. which was dismissed on merits 07.02.2024. A perusal of the orders dated 07.02.2024 passed by the learned Special Judge-I, Una, District Una, (HP), reveals that the aforesaid order rejecting the claim for enlargement on bail is well reasoned order. While passing the order on 07.02.2024 the Court below had discussed the factual aspect, which goes to prove that the ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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prima facie accusation under Section 21 of the NDPS Act was made out against the instant bail petitioner.
Even the Court below had taken into account that .
the present bail petitioner does not have a clean and unblemished criminal record. Since the Court below has already rejected the claim for bail by a well-reasoned order on arriving at a prima facie finding pointing out towards the accusation against the bail petitioner herein, therefore, this Court does not find any infirmity with the orders dated 07.02.2024 passed by the Court below rejecting the claim for bail of the bail petitioner herein ANALYSIS OF CLAIM IN INSTANT CASE:
17. Notwithstanding the orders passed by the Learned Trial Court dated 07.02.2024 dismissing the plea for bail, this Court proceeds to examine the prayer for bail in instant case.
18. After taking into account the entirety of the facts and circumstances, the statutory provisions and the mandate of the Hon'ble Supreme Court as referred to above, this Court is of the considered view that the bail petitioner, Surinder Kumar, does not deserve ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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to be enlarged on bail, at this stage, for the reasons:-
18(i). A first look at the F.I.R. No. 139 of 2023 dated 17.10.2023 reveals that the prima facie accusation .
under Section 21 of the NDPS Act points out towards the involvement of the bail petitioner, when while the while police party was on traffic checking noticed a motorcycle Splendor bearing No. HP72A-2979 with one rider. On being intercepted the bag containing the Heroin/Chitta, [weighing 5.65 grams] was recovered from the bag carried by the petitioner [Surinder Kumar herein. In these circumstances, the prima facie case and reasonable grounds exits pointing towards the accusation against the bail petitioner, in instant case.
18(ii). Merely because the quantity allegedly involved is Intermediate Quantity then, the same shall not ipso facto confer a right for bail. Permitting bail to alleged drug traffickers or peddlers, who are involved in sale or purchase of one of the most dangerous/hazardous drug {Heroin/Chitta}, will tantamount to giving license or leverage to illegal activities. Enlargement on bail will boost such persons to indulge in illegal activities or ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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trading or peddling of small or intermediate quantity with the hope that even if, they are nabbed, they may be enlarged on bail. It is high time that such activities .
and unwarranted hopes are dealt with by iron hands as such activities lead to destroying the fabric of the our society as well as the country. The modus operandi of king-pins, who resort to illegal activities or trading or peddling, be it of small quantity or of intermediate quantity needs to be strictly dealt with. The legislative intent and the Rule of law needs to be enforced and the same cannot be permitted to be scuttled, be it relates to small quantity or intermediate quantity.
In the above background and keeping in view the nature and gravity of the accusation {involved in sale/purchase of 5.65 gms of Heroin/Chitta} and severity of punishment in case of conviction, which stretches over to rigorous imprisonment for a period upto 10 years or with fine, which may extend to Rs.1,00,000/-therefore, in the peculiar facts of the instant case, the bail petitioner does not deserve to be enlarged on bail, at this stage and merely because the quantity ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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allegedly involved is intermediate quantity {5.65 grms of Heroin/Chitta} the shall ipso facto cannot confer a right or leverage or license for claiming or granting bail .
and only on account of the quantity the rule of law cannot be permitted to be scuttled, as in this case.
18(iii). Enlargement on bail is likelihood to give rise to the offences being repeated by the bail petitioner, as has been done in the past [ FIR No. 68/21 dated 21.04.2021 u/s 21, 29 NDPS Act at PS Amb and case FIR No. 3/23 dated 2.1.2023 under Section 21 NDPS Act, PS Amb, which shall certainly cause further damage and exploitation to the society at large.
18(iv). Once the past conduct is blame worthy and that too under Section 21 of the Act, then the instant F.I.R. under Section 21 of the Act corroborates the accusation that the petitioner has been involved in the sale and purchase of drugs and therefore, the prayer for enlargement of bail, cannot be acceded to at this stage.
The Hon'ble Supreme Court in Sunil Kumar ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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versus State of Bihar and another (2022) 3 SCC 245, that the past criminal history/antecedents disentitles an accused to be enlarged on bail, as under:-
.
"18. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and more particularly considering the fact that Respondent No. 2 is a history-sheeter and is having a criminal antecedent and is involved in the double murder of having killed the father and brother of the informant and the trial of these cases is at the crucial stage of recording evidence and there are allegations of pressurizing the informant and the witnesses, the impugned judgement and order passed by r the High Court releasing Respondent No .2 on bail is absolutely unsustainable and the same cannot stand. The High Court has not at all considered the gravity, nature and seriousness of the offences alleged."
Likewise in the case of Bharwad Santoshbhai Sondabhai versus State of Gujarat and another 2023 SCC OnLine SC 1092, the Hon'ble Supreme Court has held as under:
8. In the present case, after repeated directions, an affidavit has finally been filed by the respondent No.1-State, listing the criminal antecedents of the respondent No.2 in para 5 which is extracted herein below:-
Sr. Details of FIRs
No
1. FIR No. 11216025220323 of 2022 registered ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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at Santej Police Station, Gandhinagar u/s 385, 147, 148, 323, 379, 504, 506(2), 511 r/w 120(B) of Penal Code, 1860.
2. FIR No.11216008210402 of 2021 registered under Section 65(A)(A), 66 (1)(B) of Gujarat Prohibition Act, 1949 at Sectior-7 Police Station Gandhinagar.
.
FIR No. 11192011200478 of 2020 registered
3. at Bhopal Police Station, Ahmedabad Rural u/s 188 of Penal Code, 1860 and 113 of Gujarat Police Act.
12. For the reasons noted above, we are of the firm opinion that the respondent No .2 was not entitled to any relief in the instant case. Respondent No.2 had remained in custody for barely six months (23rd September, 2021 to 18th February, 2022) before he was released on bail in respect of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime.
Accordingly, the impugned order dated 18th February, 2022 is quashed and set-aside and respondent No.2 is directed to surrender forthwith before the trial Court."
In view of the mandate of the Hon'ble Supreme Court referred to above, once the past incident and past history of the instant bail petitioner is blemished, which is clear from earlier F.I.R which also relates to Section 21 of the NDPC Act, in which he has now been involved then the bail petitioner cannot be enlarged in these circumstances.
18(v). The prayer for enlargement on bail does not ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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carry weight, for the reason, that the enlargement on bail shall give reasonable apprehension of the witnesses being influenced or threatened, as the case may be.
.
18(vi). The grant of bail shall lead to the cause of justice being thwarted by the bail petitioner.
19. The learned counsel for the petitioner submits that in the instant case, once the bail petitioner is involved in contraband relating to intermediate quantity the rof petitioner has to Heroin/Chitta claim for [5.65 bail grams], as of therefore, a right.
In considered view of this Court, the plea is without any substance for the reason that merely because intermediate quantity of Heroin/Chitta is involved, the same cannot confer any right for anticipatory bail. In facts of this case, the alleged contraband was recovered from the bail petitioner.
Permitting enlargement on bail shall certainly amount to granting leverage or licence to the petitioner and others, who indulged in nefarious activities with the hope and belief that they will be enlarged on bail by the Court(s). The dangerousity and killing instinct ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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of Heroin/Chitta (as involved in this case) also restrains the Courts from exercising its discretion in favour of the bail petitioner, from where Heroin/Chitta (5.65 .
grams) was recovered. Even a pinch of touch out of one gram of Heroin (Chitta is sufficient enough to make a person initially addict, without which the person becomes repulsive. Such addiction for them leads to peddling for own sustenance and for easy trading. It is high time that the rule of law needs to be strictly enforced and the societal interests are safeguarded and protected; lest tomorrow one and all may face repentance, repentance and repentance only and nothing more. In the interests of society and to enforce rule of law as discussed hereinabove and once the alleged contraband (5.65 grams) has been recovered from the bail petitioner, the prayer for enlargement on bail is without merit at this stage.
20. In view of the above discussion, and in the peculiar facts of the instant case, the prayer of the petitioner, (Surinder Kumar) for enlargement on bail, is without merit ; at this stage, and the same is accordingly, ::: Downloaded on - 05/04/2024 20:36:02 :::CIS
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dismissed.
21. The observations made in this judgment shall not be construed in any manner as an indictive .
of findings, for the purposes of investigation and the proceedings thereafter, including the trial, if any against either of the parties herein.
In aforesaid terms, the instant petition and all the pending miscellaneous application(s), if any, shall r to also stand disposed of, accordingly.
(Ranjan Sharma) Judge March 16, 2024 (himani/tm) ::: Downloaded on - 05/04/2024 20:36:02 :::CIS