Himachal Pradesh High Court
Khushi Ram Gupta vs State Of Himachal Pradesh on 29 March, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CrMP(M) No. 492 of 2023
Reserved on : 24.03.2023
Decided on : 29.03.2023
Khushi Ram Gupta ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Praveen Chandel, Advocate.
For the respondent : Mr. Rupinder Singh, Additional Advocate General, with Ms. Sunaina, Deputy Advocate General.
Virender Singh, Judge.
Applicant-Khushi Ram Gupta has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for seeking, release on bail, during the pendency of trial, in case FIR No. 24/2022, dated 13th April, 2022, registered with Police Station 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/03/2023 20:35:34 :::CIS 2Jubbal, District Shimla, H.P., under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act .
(hereinafter referred to as 'NDPS Act').
2. According to the applicant, he is innocent and has been falsely implicated by the police, in this case. The investigation against the applicant is stated to be completed and nothing is to be recovered from him or at his instance.
3. As per the applicant, the trial against him will take sufficient long time, as such, no fruitful purpose will be served by keeping him in judicial custody. The applicant has, therefore, prayed that during the pendency of the trial, he may be released on bail.
4. Learned counsel appearing for the applicant has submitted that even, on the ground of party, the applicant is entitled to be released on bail, as his co-accused, namely Hardeep alias Lucky, has already been released on bail by this Court, vide order, dated 27th January, 2023, in CrMP (M) No. 67 of 2023.
5. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 3 applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
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6. When put on notice, the police filed the status report, disclosing therein that on the intervening night of 12 th April, 2022, the police party, under the leadership of ASI Pardeep Kumar, was on patrolling duty. At about 10.15 p.m., when they reached at Kuddu Barrier, where SI Chintamani, Incharge, PP Kuddu, alongwith the other police official, met them, they had jointly put the picketing. At about 10.30 p.m., they noticed a car bearing registration No. UA-07D-5550 Maruti (Grey coloured), being driven by its driver, reached there at the spot.
7.1. The said vehicle was stopped for checking. Apart from the driver, one another person was found sitting in the vehicle. Driver was directed to show the requisite papers and reasons for travelling there, upon which, both the occupants of the vehicle, became perplexed and could not give the satisfactory answer nor they could show the documents of the vehicle, upon which, a suspicion was developed in the mind of the Investigating Officer. Consequently, he inquired the official ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 4 working at barrier. One of them disclosed his name as Manish and the other one disclosed his name as Nikhil.
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7.2. In the presence of the above two persons, name of the driver of the vehicle was inquired. On inquiry, he disclosed his name as Santosh, whereas, the other occupant disclosed his name as Anil Kumar. Thereafter, on the search of the vehicle, police noticed that accused Anil Kumar was having a black and grey coloured rucksack on his lap, upon which, words "The North Face" were written. When, the same was checked, five ball shaped substances were found wrapped in the yellow tape. On inquiry from Anil Kumar, the same was found to be Chitta/Heroin.
7.3. Thereafter, Investigating Officer directed HHC Jagdeep Singh to bring Drug Detection Kit from Police Station Jubbal. At about 12.30 a.m., the said HHC came back with the DD Kit. When the substance, so found, was checked on DD Kit, the same was found to be Chitta/heroin, which, on weighment, was found to be of 250 grams. The contraband, so recovered, was taken into possession and sealed. Other codal formalities were completed on the spot.
::: Downloaded on - 29/03/2023 20:35:34 :::CIS 57.4. Accused-Anil Kumar was arrested on 13 th April, 2022 at 06.40 a.m., whereas, accused Santosh Kumar was .
arrested on 13th April, 2022 at 12.20 p.m. Both the said accused were, thereafter, sent to CH Jubbal for their medico-
legal examination and were produced before the Court, wherefrom, both of them were remanded to the police custody and thereafter proceedings under Section 52(A) of the NDPS Act, were conducted before the JMFC, Jubbal.
7.5. During investigation, accused Anil Kumar has disclosed that he has brought the Chitta/Heroin from Delhi and same was to be delivered to person namely Hardeep @ Lucky at Rohru, who had paid a sum of ₹ 1,55,000/- to him, by way of bank transaction, dated 11 th April, 2022 in SBI Bank Account No. 00000039376965521, upon which the details of the bank account of Anil Kumar were obtained. This fact was then verified. Thereafter, the CDRs of mobile phone of Anil Kumar i.e. 8580813004 with mobile phone of Hardeep alias Lucky i.e. 8580508124 were analyzed and it was found that there were frequent talks between them on 11th April, 2022 and 12th April, 2022, upon which, the involvement of the Hardeep alias Lucky was found. He was then associated. It ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 6 was found that in the bank account of co-accused Anil Kumar, Hardeep alias Lucky had transferred ₹ 1,55,000/-.
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Consequently, Hardeep alias Lucky was arrested on 14th April, 2022 at 12:30 in the midnight.
7.6. During further investigation, it was found that Khushi Ram Gupta (applicant) was in constant touch with accused-Anil Kumar and Hardeep alias Lucky over mobile phone, who, was then brought for interrogation from Delhi to Shimla. During inquiry, it was found that accused-Hardeep alias Lucky had transferred a sum of ₹ 1,30,000/- to Khushi Ram Gupta (applicant) in his Bank of India Account No. 711618210005024 on different dates and Khushi Ram Gupta (applicant) had given ₹ 50,000/- to accused-Anil Kumar on 12 th April, 2022 in Delhi. The applicant had taken accused Anil Kumar in his vehicle to a Nigerian and after procuring Chitta/Heroin from him, dropped accused-Anil Kumar at Vikas Nagar, Uttarakhand. Call details of Khushi Ram Gupta (applicant) were obtained and it was found that when accused-
Anil Kumar and Hardeep alias Lucky used to go to Delhi for procuring Chitta/Heroin, they remained in constant touch with him and he used to help them in procuring Chitta/Heroin.
::: Downloaded on - 29/03/2023 20:35:34 :::CIS 7Thereafter, the applicant was arrested on 15th April, 2022 at 09.00 p.m. .
8. On the basis of above facts, the investigation agency has prayed that the application of the applicant may kindly be dismissed.
9. The contraband, which has been recovered from the possession of the accused persons in this case is 250 grams. Although, same has not been recovered from the conscious possession of the applicant, but, the applicant has been arrested, in this case, under the provisions of Section 29 of the NDPS Act. It is no longer res integra that the possession does not mean the actual or physical possession, it can be constructive possession.
10. If the facts and circumstances of the present case are seen in light of the decision of the Hon'ble Supreme Court in Union of India through Narcotics Control Bureau, Lucknow versus Md. Nawaz Khan, reported in (2021) 10 Supreme Court Cases 100, then the exclusive and conscious possession can be said to be of applicant-Khushi Ram Gupta, who has been arrested under the provisions of Section 29 of ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 8 the NDPS Act. The relevant para 26 of the judgment is reproduced, as under:
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"What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab (2010) 9 SCC 608, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case.
The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v.
State of Rajasthan (2015) 6 SCC 222, this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge."
11. In the police report, the Chitta/Heroin weighing 250 grams is stated to have been recovered from accused-Anil Kumar and Santosh and accused-Hardeep alias Lucky and Kushi Ram Gupta (applicant) have been arrested under Section 29 of the NDPS Act, in this case. If the facts and circumstances of the present case are seen, in the light of the Full Bench decision of this Court in Ratto versus State of H.P., 2003 STPL 9939 HP, then, it can be said that the contraband allegedly recovered from the possession of the accused persons, in this case, does not fall within the definition ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 9 of the commercial quantity of contraband. Relevant paras 29 and 30 of the aforesaid judgment are reproduced as under:
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"29. We feel that there is no ambiguity in the language of Section 2 (viia), supra. As such, simple and literal meaning has to be given to the words "quantity greater than", so as to hold what would be the commercial quantity.
30. As already noted there is hardly any ambiguity, muchless conflict between Section 2 (viia) and the notification as extracted herein-in-above for determination of what would be the commercial quantity. By virtue of powers conferred under sub- section (viia) of Section 2, Central Government is authorized to notify as to what would be the commercial quantity. Because the "Commercial Quantity" on a plain reading of its definition amongst other things has to be "....... Greater than the quantity specified by the Central Government by notification....." Under 2001 Act notification supra was issued specifying the quantity for the purpose of Section 2 (viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted herein above have to be read in conjunction with the substantive provision of Section 2 (viia) of the Act.
This also puts a harmonious construction on both, notification as well as Section 2 (viia). While determining the quantity under this Sub-section, it has to be greater than one Kg. There is hardly any doubt regarding either the words one kg. or the "commercial quantity" which has to be "greater than", which in our considered view would always mean any quantity more than/bigger than/larger than one Kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg. would be commercial quantity for the purpose of Section 2 (viia), as added by 2001 Act."
12. In view of the above judgment, there is no hesitation for this Court to hold that contraband allegedly ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 10 recovered from the possession of the applicant, does not fall within the definition of 'commercial quantity', as such, rigors .
of Section 37 of the NDPS Act are not applicable, in this case.
13. The applicant is in the judicial custody, which fact demonstrates that his custodial interrogation is no longer required by the investigating agency. Even otherwise, presumption of innocence is still available to the applicant, in this case, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment has been prohibited under the law. Moreover, the trial of the case, definitely takes time for its conclusion, as such, no useful purpose would be served by keeping him in judicial custody.
14. Considering all these facts and the fact that the co-
accused of the applicant, namely Hardeep Thakur alias Lucky, has already been released on bail, by this Court, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
15. The applicant is ordered to be released on bail in case FIR No. 24/2022, dated 13th April, 2022, registered with Police Station Jubbal, District Shimla, H.P., under Sections 21, 25 and 29 of the NDPS Act, on his furnishing personal bail ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 11 bond, in the sum of ₹ 50,000/-, with one surety of the like amount, to the satisfaction of the learned JMFC, .
Jubbal/ACJM, Rohru. This order, however, shall be subject to the following conditions:
a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and
d) He shall not leave the territory of India without the prior permission of the Court.
16. 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.
17. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.
18. The Hon'ble Supreme Court, vide order, dated 31st January, 2023, in SMWP (Criminal) No. 4 of 2021, titled as ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 12 In Re Policy Strategy for Grant of Bail, has issued certain directions, out of which, the following direction is required to .
be complied with by the Court, granting the bail:
"1) The Court which grants bail to an undertrial prisoner/convict would be required to send a soft copy of the bail order by e-mail to the prisoner through the Jail Superintendent on the same day or the next day.
The Jail Superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison Department]."
19. Perusal of the bail application shows that there is no averment, in the bail application, about the jail, in which the applicant is presently lodged in judicial custody.
20. In order to comply with the directions of the Hon'ble Supreme Court, in Re Policy Strategy for Grant of Bail (supra), the above particulars are required to be mentioned, in the bail application(s), as well as, in the status report(s) filed by the police.
21. In the absence of any particulars about the jail, in which the applicant is presently lodged in judicial custody, the said direction could not be complied with.
22. However, in order to comply with the direction, the Registry is directed to ascertain the details of the jail, in which the applicant is lodged, in the present case, and, then, to ::: Downloaded on - 29/03/2023 20:35:34 :::CIS 13 forward a soft copy of the bail order to the Superintendent of Jail concerned, through e-mail, with a direction to enter the .
date of grant of bail in the e-prison software.
23. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail concerned is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail concerned is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
24. In order to issue directions to the jail authorities, as per the directions of the Hon'ble Supreme Court, in the above-mentioned case, the Registry of this Court is directed to ensure that henceforth, all the bail applications, under Section 439 CrPC, filed in the High Court, are required to contain the details of the jail, in which the applicant is lodged, in judicial custody, on the date of filing of the bail application.
25. Similar directions are also required to be issued to the other criminal Courts, subordinate to the High Court, in the State of Himachal Pradesh. Ordered accordingly.
::: Downloaded on - 29/03/2023 20:35:34 :::CIS 1426. The above details are also required to be mentioned in the status report(s), filed by the Investigating .
Officer(s) in the above bail application(s). Hence, the Director General of Police is directed to issue the necessary directions to all the SHOs of the Police Stations in the State of Himachal Pradesh, directing the Investigating Officer(s) to mention these material facts in the status report(s), being filed in the bail application(s), under Section 439 CrPC, in this Court, as well as, in the other Criminal Court(s), subordinate to the High Court, so that the directions of the Hon'ble Supreme Court could be complied with, in letter and spirit.
( Virender Singh ) Judge March 29, 2023 ( rajni ) ::: Downloaded on - 29/03/2023 20:35:34 :::CIS