Himachal Pradesh High Court
Roshan Lal vs State Of Himachal Pradesh on 4 March, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No:307 of 2024 Decided on:4th March, 2024 ____________________________________________________________ .
Roshan Lal .... Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? YES For the petitioner: Mr. Het Ram Thakur, Advocate.
For the respondent: Mr. Prashant Sen, Deputy Advocate
r General.
Ranjan Sharma, Judge(Oral)
Petitioner, Roshan Lal has come up before this Court under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), seeking pre-arrest bail, originating from FIR No. 28 of 2024, dated 26.02.2024, registered with Police Station Karsog, District Mandi (HP), under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act').
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 22/03/2024 20:31:52 :::CIS -2-2. The bail petitioner submits that he is an innocent person and he has been falsely implicated and he has nothing to do with the alleged offence. It is .
submitted that nothing is to be recovered from him and no fruitful purpose will be served by keeping him in judicial custody.
2(i). Apart from this, the bail petitioner has given certain undertakings that he shall participate in the investigation and trial thereafter and shall not cause any inducement, threat or promise to any witness or person acquainted with the case and shall not tamper with the evidence in any manner. It is averred that in case of release, the bail petitioner shall abide by all other conditions which may be imposed by this Court.
3. Upon issuance of notice by this Court on 27.2.2024, the State Authorities/Police have filed the Status Report, disclosing that on 25.02.2024 at about 07.45 p.m., ASI Het Ram along with HC Rupain Kumar No.13, HHC Bhupender Raj No. 286, LHC Vinod Kumar No. 234, and Constable Jagdish Kumar No. 224 were present near Forest Rest House Shorshan for patrolling ::: Downloaded on - 22/03/2024 20:31:52 :::CIS -3- and traffic checking duty. On noticing the police, both the accused (i.e. Hem Raj and Roshan Lal-bail petitioner have) tried to flee away from the spot. Due to this, .
suspicion developed in the mind of the Police/Investigating Officer that there might be some objectionable item with them in a bag. As a result of this, the accused Hem Raj, who was actually carryingthe bag (Pithoo) was apprehended at the spot.It is further averred that on Hem r Raj, to opening the bag the contraband (Charas) was recovered from which on weighing, came out to be 206 grams, which was taken into possession by the police. After completing the required codal formalities, the rukka was sent, leading to the registration of F.I.R.
No 28 of 2024 dated 26.02.2024 against the accused Hem Raj and Roshan Lal-bail petitioner herein, as mentioned hereinabove. It is averred in the statusreport that Roshan Lal, bail petitioner herein, is alleged to have fled away from the spot and thereafter, the bail petitioner is stated to have moved this Court seeking anticipatory bail and on 27.02.2024, the Coordinate Bench of this Court, granted him respiteby way of interim bail.
::: Downloaded on - 22/03/2024 20:31:52 :::CIS -4-3(ii). In the Status Report, the police apprehends that in case petitioner is released on bail, he may again indulge in such type of activities and may coerce .
the witnesses. On all these submissions, a prayer has been made to dismiss the bail application.
4. Heard Mr. Het Ram Thakur, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the Respondent-State.
5. Before dealing with the present application, it is relevant to take note of the provisions of Section 438 of the Code of Criminal Procedure and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which read as under:
Section 438 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 ::: Downloaded on - 22/03/2024 20:31:52 :::CIS -5- undergone imprisonment on conviction by a Court in respectof any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with .
the object of injuring or humiliating the applicantby having him so arrested, either reject the application forthwith or issue an interim order for the grantof 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 r apprehended in such application.
(1A) 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.
(1B) 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 ::: Downloaded on - 22/03/2024 20:31:52 :::CIS -6- 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 r 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 376 AB or section 376DA or section 376DB of the Indian Penal Code.
Section 37 of the N D P S Act, 1985:
37. Offences to be cognizable and non-bailable:
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) ::: Downloaded on - 22/03/2024 20:31:52 :::CIS -7-
(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 27 A 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 r 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 Codeof Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.
6. In the background of the statutory provisions of Section 438 Cr.P.C and Section 37 of the NDPS Act, as referred to above, the offences punishable under NDPS Act are cognizable and the claim of a suspect-
accused for pre-arrest bail, even under NDPS Act, is to be examined within the parameters prescribed in the Code of Criminal Procedure and also the broad parameters mandated by the Hon'ble Supreme Court, regulating bail anticipatory bail (under Section 438) in ::: Downloaded on - 22/03/2024 20:31:52 :::CIS -8- Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ;Kalyan Chandra Sarkar versus .
Rajesh Ranjan, (2004)7 SCC 528 ;Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the anticipatory bail is to be granted as an exception where the case alleged reasonable r grounds to is frivolous or groundlessand incase the prima facie or lead to believe or point towards accusation then, the refusal of anticipatory bail does not amounts to denial of Article 21 of the Constitution of India ; Sushila Aggarwal versusState-NCT Delhi, (2020) 5 SCC 01 ; CBI versus Santosh Karnani (2023) 6 SCALE 250 ; which have beenreiterated by the Hon'ble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC OnLine SC 1085, which read as under:
(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;::: Downloaded on - 22/03/2024 20:31:52 :::CIS -9-
(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 of the witnesses being influenced and
(viii). Danger, of course, of justice being thwarted by grant of bail.
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 under Section 438 is an extraordinary power and the same has to be exercised sparingly and the privilege of pre-
arrest bail is to be to be granted in exceptional cases.
It is trite law that anticipatory bail is not be granted as a rule and cannot be claimed as of right. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], factum of prolonged pre-conviction incarceration is also to be taken into account. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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the societal interest, including the danger of the justice being thwarted in case the bail is granted.
8. Anticipatory bail is to be granted, only if, .
exceptional circumstances exist and the denial of pre-
arrest would amount to denial of Article 21 of the Constitution of India. The claim for anticipatory bail may carry weight, in case, the accusation is frivolous and groundless with the object of either injuring or humiliating or where to a person eroped in the crime. Even such a claim is to be tested r has falsely been in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to hereinabove).
On the other hand, anticipatory bail is not to be granted as of right, when, there is a prima facie case or reasonable grounds exist pointing out towards accusation.
9. 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 ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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the prayer for bail, the Court is not required to weigh theevidence 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 for alleged offences, the characterof the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of tamperedwith, the large interests of the public/state.
r the witnesses being 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.
10. 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 ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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considering the prayer for bail, even in offences under the NDPS, relating to small or 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 broad parameters mandated by the Hon'ble Supreme Court, in Paras 6 to 9 referred to above.
Merely because a bail petitioner is implicated for accusation relating to to either small quantity of contraband cannot ipso facto confer a right r or intermediate of bail on such a suspect or accused. The Courts cannot freign 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 and unexpected financial expectationsor who are suffers of financial liability etc., by initially 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 ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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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.
It is high time that the drug trafficking and menace needs to be dealt with iron hands. Permitting drug peddlers or persons, against whom there is a prima facie case or reasonable grounds of being involvement in drug menace to be enlargement on bail ipso facto, merelybecause quantity of contraband involved is either small or intermediate, will certainly defeat the object of NDPS Act and the rule of law. Enlarging such persons on bail {pre-arrest or regular}, merely because the quantity allegedly 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, expandand flourish in inhumane trade and activities.
Such persons are bent upon, not only to destroy the ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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society at large but are exploiting the youth in the prime of theirlife, 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. 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 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.
The exception to this principle is that the enlargement on bail {be it relates to either small 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 involvementand the past conduct being unblemished ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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coupled with the fact that such bail applicant fulfils the broad parameters mandated by the Hon'ble Supreme Court referred to above.
.
12. While dealing with the issue relating to an intermediate quantity of contraband of Heroin (charas), which was not recovered from petitioner, Hon'ble Supreme Court in Sami Ullaha versus Superintendent, Narcotic Central Bureau, (2008) 16 SCC 471 has held as under:
r 3.
Before, however, we advert to the said question, we may notice the factual matrix involved in the matter.
On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain who were traveling in a bus were searched and allegedly contraband weighing 2 kgs. was recovered. A purported statementwas made bythe said accused persons thatthe said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Appellant contends that he was tortured and the statement was obtained forcibly from him on some ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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blank documents. He later on retracted there from. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 .
stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance 2 allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail, stating:
"Accordingly, as mentioned above, there is no ground that by accepting the application of the complainant and order be passed for sending the second sample for examination to another laboratory. If the investigating officer so desires, then in accordance with the ruling expounded as above, he is free to send the second sample to any of the laboratories for its examination at his own level. On the basis of the abovementioned observations, the application of the complainant is rejected."
However, even a distinction is made as regards grant of bail in relation to a commercial quantity and a small quantity. Commercial quantity has been defined in Section 2(vii-a) of the Act to mean "any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette".
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12. We will advert to the question of the definition of "Chemical Examiner" a little later. The question, however, as to whether the contraband found came within the purview of the commercial quantity within the meaning of Section 2(vii-a) or not is one .
of the factors which should be taken into consideration by the courts in the matter of grant or refusal to grant bail. Even, according to the Central Revenue Control Laboratory, New Delhi, only 2.6% of the sample sent was found to be containing heroin. Small quantity in terms of the notification issued under Sections 2(vii-a) and 2(xxiii-a) is as under:
___________________________________________________________ Sl. Name of Narcotic drug or Chemical Small Commercial No. psychotropic substance [International name quantity quantity Non-proprietary Name (INN)] ______________________________________________________________________ r 77. Morphine Morphine 5 gm 250 gm The quantity, thus, alleged to have been recovered from the co-accused persons could be said to be intermediate quantity and, thus, the rigours of the provisions of Section 37 of the Act relating to grant of bail may not be justified.
13. In Ouseph alias Thankachan v. State of Kerala [(2004) 4 SCC 446], this Court held:
"8. The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal consumption. The words 'small quantity' have been specified by the Central Government by the notification dated 23-7-1996. Learned Counsel for the State has brought to our notice that as per the said notification small ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that .
each ampoule contained only 2 ml and each ml contains only 3 mg. This means thetotal quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.
*** *** ***
11. On account of the aforesaid fact situation, we are inclined to believe that the small quantity of r buprenorphine (Tidigesic) wasin the possession of the appellant for his personal consumption and, therefore, the offence committed byhim would fall under Section 27 of the NDPS Act."
12(ii). In State of West Bengal versus Rakesh Singh alias Rakesh Kumar Singh 2022 SCC OnLine SC 828, the Hon'ble Supreme Court, has observed asunder:
20. After having considered the rival submissions, the High Court formed the opinion that the restriction of Section 37 NDPS Act would not apply to this case and the respondent, who was in custody since ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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23.02.2021, qualified for grant of bail with stringent conditions. Accordingly, the High Court ordered release of the accused-
respondent on bail with heightened conditions like: (a) he would furnish a bond in the sum .
of rupees one lakh with four sureties of rupees fifty thousand each, two of whom must be local persons; (b) he shall report to the Officer- in Charge of the concerned police station once in a week; (c) he would not travel outside the State of West Bengal without prior leave of the Trial Court; and (d) he would surrender his passport before the Trial Court immediately.
Having regard to the submissions made in this case, we may take note of the relevant part of the discussion and reasoning of the High Court as under: -
"4. We have considered the rival contentions of the parties. We have also perused the material in the memo of evidence filed on behalf of the State.
5. Certain things are clear. Firstly, there was no recovery of contraband items from the physical possession of the petitioner.
Nothing was recovered from the person of the petitioner or any place over which the petitioner had exclusive control. We are conscious that mere non-recovery of contraband from a person's possession may not per se dilute the rigours of Section 37 of the NDPS Act.
6. However, even assuming that the petitioner had dominion or control over the contraband in question, admittedly intermediate quantity (76 gms) of cocaine ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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was seized. It was urged on behalf of the State that the statements of witnesses would indicate that the petitioner was a regular purchaser of contraband items. However, the fact remains that in the present case only .
76 gms of cocaine is involved. As observed by the Hon'ble Apex Court in the case of Sami Ullaha (Supra), where intermediate quantity of narcotics is involved, it may not be justified to apply the rigours of the provisions of Section 37 of the NDPS Act relating to grant of bail.
53. Once the veracity of prosecution case against the respondent is in serious doubt, further analysis on the other factors about financing the drug trafficking and harbouring of offender r need not be undertaken because, when the story of planting of contraband is removed out of consideration, all other factors by which respondent is sought to be connected with such alleged planting could only be regarded as false and fanciful, at least at this stage.
54. Hence, suffice it to observe for the present purpose that in the given set of facts and circumstances, the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply to the present case."::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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13. On considering the entirety of facts and circumstances and keeping in view the mandate of law laid down by the Hon'ble Supreme Court, as referred .
to above, this Court is of the considered view, that the interim/pre-arrest bail granted by this Court on 27.02.2024, deserves to be made absolute, for the following reasons: -
13(1). Admittedly, in the present case, as per the Status Report filed by the State Authorities, the alleged contraband was recovered from Hem Raj-accused, who had kept it in his bag.
13(ii). No alleged recovery of contraband was made from the bail petitioner (Roshan Lal) herein and the bail petitioner was nowhere involved and had no connection with the alleged offence.
13(iii). As per the Status Report, alleged contraband does not fall within the definition of 'commercial quantity' and as such the rigors of Section 37 of the NDPS Act are not applicable, in this case.
13(iv). Once, the contraband allegedly involved relates to 'Intermediate Quantity' in which case, the rigors of ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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Section 37 of the NDPS Act are not applicable, then the presumption of innocence is still available to the petitioner, as the bail application cannot be rejected .
as amatter of punishment.
13(v). Moreover, the pre-trial punishment is prohibited under the law. The trial ofthe accused will take sufficient long time and no useful purpose would be served by keeping him in judicial custody, when, in prima facie opinion of thisCourt, no prima facie case or reasonable grounds exist against the bail petitioner.
14. So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the petitioner, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed.
15. Even the status Report does not point out anything adverse regarding past conductor blemished criminal history/records of the bail petitioner. While dealing with a matter, relating to an intermediate quantity of contraband coupled with the fact that the antecedents and past conduct was satisfactory the Coordinate Bench ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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of this Court enlarged the accused on bail, in Hari versus State of Himachal Pradesh, 2023 SCC OnLine HP 142, decided on 21st February, 2023, this Court held .
as under:
8. It can also be noticed from the facts of the case that there is no allegation of petitioner involving himself in similar offences repeatedly. No criminal history has been attributed to him. Petitioner is a young man of 25 years. His further pre-trial incarceration will not serve any fruitful purpose.
15(i). Likewise, in the case of Rohit versus State of Himachal Pradesh, 2023 SCC OnLine HP 315, decided on 11.04.2023 while granting the bail, this Court has held as under:
4. This Court is of the considered view that as the alleged recovery from the petitioners is of the intermediate quantity and further taking into consideration the fact that the petitioners are stated to be having no previous criminal history of being indulged in offences relatable to NDPS Act, it will be in the interest of justice in case the petitioners are allowed and the petitioners are ordered to be released on bail.::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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16. Status report filed by the State Authorities/ police does not spells out any need for the custodial interrogation ofthe bail petitioner.
.
17. The status report reveals that incompliance to the orders dated 27.2.2024 passed by this Court, the bail petitioner has joined the investigation and he is participating/cooperating in the investigation with the police authorities.
18. Given as above, in the facts of the instant case, once the status report reveals that the police had recovered the contraband from the accused Hem Raj and not present bail petitioner Roshan Lal and there is no prima facie case or reasonable grounds pointing towards the accusation of the bail petitioner; coupled with the fact that the contraband allegedly relates to "intermediate quantity", in which case the rigors of Section 37of the NDPS Act are not applicable ; there is no history of adversial criminal antecedents under the NDPS Act or under any other statute ; nothing adverse has been reported by the State authorities regarding the position, means or characterof the bail petitioner; the ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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denial of bail will amount to pre-conviction incarceration which is to be avoided in facts of this case, when, there is no prima facie or no reasonable grounds pointing .
out towards the accusation of the bail petitioner; when, the bail petitioner has joined the investigation with the police authorities ; and when, there the State Authorities have not pointed out anything substantial regarding the likelihood of offence being repeated by the bail petitioner ;
the state authorities have not pointed out any material to show that justice will be thwarted in case the bail petitioner is enlarged on bail.
19. In view of the above discussion, the bail petition is allowed and the orders dated 27.2.2024 passed by this Court granting pre-arrest to the bail petitioner is made absolute; subject to the following terms and conditions:-
(i) The bail petitioner, Roshan Lal, shall not hinder the smooth flow of investigation and shall join the investigation, on each as and when called, byInvestigating Agency;
(ii) The petitioner shall disclose his functional E-Mail ID (if any) and WhatsAppnumber and that of his ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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surety to the SHO/IO, if not already furnished.
(iii) The petitioner shall undertake to appear in the trial as and when called upon.
.
(iv) The petitioner shall not jump over the bail and also shall not leave the Country without the prior information of thisCourt;
(v) That the petitioner shall not tamper with the witnesses or the evidence in any manner;
(vi) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person r acquainted with the facts of the case or the witnesses;
(vii) The petitioner shall neither involve himself nor shall abet the commission of any offence. The involvement or abetting in any offence, shall entail cancellation of bailautomatically;
(viii) It is clarified that violation of any of the conditions imposed herein-
above shall entail cancellation of bail automatically; and
(ix) The respondents are at liberty to move this Court for modification or cancellation of bail, if circumstances, so necessitate or in case of violation of any of the conditions mandated herein.
20. Petitioner is permitted to produce/use copy ::: Downloaded on - 22/03/2024 20:31:52 :::CIS
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of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production .
of a certified copy, but if required, may verify passing of order from Website of the High Court.
21. Any observations made hereinabove, shall not be construed in any manner as an expression of opinion on the merits of the case and these observations are made As r to only, for the disposal of the instant bail application.
aforesaid the instant petition and all applications, if any, shall stand disposed of.
(Ranjan Sharma) Judge March 4, 2024 (™) ::: Downloaded on - 22/03/2024 20:31:52 :::CIS