Himachal Pradesh High Court
Ishu vs State Of Himachal Pradesh on 14 August, 2024
Neutral Citation No. ( 2024:HHC:6958 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1594 of 2024 .
Reserved on: 05.08.2024.
Date of Decision: 14.08.2024.
Ishu ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No For the Petitioner : Mr. Udit Shaurya Kaushik, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances (hereinafter referred to as ND&PS) vide FIR No.222/2023, dated 20.07.2023 registered at Police Station Sadar, Kullu, District Kullu, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. As per the prosecution case, the police party saw a white Alto taxi car bearing registration No. T1222 HP7866N, .
coming towards them on 20.07.2023. The driver of the taxi steered it to its left side after seeing the police. He got out of the vehicle and ran towards the other side of the road. The police found the petitioner sitting in the rear seat. He revealed his name as Ishu on enquiry. The police found a bag between the petitioner's legs and recovered 1.168 kgs of charas from the bag.
The petitioner is innocent and he was falsely implicated. He belongs to a respectable family and has deep roots in the society.
He would join the investigation as and when directed to do so.
He would abide by all the terms and conditions, which may be imposed by the Court. The petitioner has no previous criminal antecedents; hence, it was prayed that the present petition be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty. The police intercepted a vehicle. One person ran away and the petitioner was found in the vehicle, who revealed his name as Ishu. He also named the driver as Parmar Thakur @ Pawan. The police checked the bag lying between the petitioner's legs and ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 3 Neutral Citation No. ( 2024:HHC:6958 ) found 1.168 kgs charas in it. The police arrested him, seized the vehicle and conducted the investigation. The petitioner revealed .
on inquiry that he and the driver had gone to Jari where someone handed over Charas to Pawan. The police intercepted the vehicle and Pawan ran away. The police apprehended Pawan, who revealed during interrogation that he had facilitated the sale of charas to the petitioner. The police prepared the challan and presented it before the Court after the completion of the investigation. Hence, the status report.
4. I have heard Mr. Udit Shaurya Kaushik, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State.
5. Mr. Udit Shaurya Kaushik, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated by the co-accused. The co-accused has been released on bail and the petitioner is entitled to bail on the principle of parity; hence, he prayed that the present petition be allowed and the petitioner be released on bail.
6. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State submitted that the petitioner was found in ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 4 Neutral Citation No. ( 2024:HHC:6958 ) possession of 1.168 kgs of charas, which is a commercial quantity and rigours of Section 37 of the ND&PS Act apply to the .
present case; hence, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under: -
"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of granting bail.::: Downloaded on - 14/08/2024 20:32:12 :::CIS
5 Neutral Citation No. ( 2024:HHC:6958 )
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt there ought to be always a prima facie satisfaction of the Court in support of .
the charge.
(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.::: Downloaded on - 14/08/2024 20:32:12 :::CIS
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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
9. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(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;::: Downloaded on - 14/08/2024 20:32:12 :::CIS
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(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.'
10. As per the status report, the petitioner was found in the vehicle. A bag containing 1.168 kgs of charas was recovered from the bag which was lying between the petitioner's legs.
These allegations prima facie show the involvement of the petitioner in the commission of an offence punishable under Section 20(b)(ii)(c) of the ND&PS Act
11. The status report shows that the petitioner was found in possession of 1.168 kgs of charas, which is a commercial quantity and rigours of Section 37 of the NDPS Act apply to the present case.
12. Section 37 of the NDPS Act provides that in an offence involving commercial quantity, the Court should be satisfied that the accused is not guilty of the commission of an offence and is not likely to commit any offence while on bail.
Section 37 of the NDPS Act reads as under:
::: Downloaded on - 14/08/2024 20:32:12 :::CIS8 Neutral Citation No. ( 2024:HHC:6958 ) "37. Offences are to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Crim-
inal Procedure, 1973 (2 of 1974)--
.
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 section 24 or section 27A and also for offences involving commercial quan- tity shall be released on bail or his own bond un- less-
(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 an offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
13. This section was interpreted by the Hon'ble Supreme Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC 738 and it was held that in the absence of the satisfaction that the accused is not guilty of an offence and he is not likely to commit an offence while on bail, he cannot be released on bail.
It was observed:
::: Downloaded on - 14/08/2024 20:32:12 :::CIS9 Neutral Citation No. ( 2024:HHC:6958 ) "7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain of-
fences enumerated under the said Section. They are :
.
(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24, (3) Under Section 27A and (4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court pro-
poses to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal re-
quirements under the provisions of the Cr.P.C. or any other enactment.
(1) The court must be satisfied that there are reason-
able grounds for believing that the person is not guilty of such offence;
(2) that person is not likely to commit any offence while on bail."
14. This position was reiterated in State of Kerala Versus Rajesh AIR 2020 SC 721 wherein it was held:
"19. This Court has laid down broad parameters to be fol- lowed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429, it has been elaborated as under:-
"7. It is to be borne in mind that the aforesaid leg- islative mandate is required to be adhered to and followed. It should be borne in mind that in a mur- der case, the accused commits the murder of one or two persons, while those persons who are dealing in ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 10 Neutral Citation No. ( 2024:HHC:6958 ) narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes delete- rious effects and a deadly impact on the society;
.
they are a hazard to the society; even if they are re- leased temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit in- volved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has suc-
cinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Ter- ritory of Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and sub- stances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarm-
ing proportions in the recent years. There- fore, in order to effectively control and eradi-
cate this proliferating and booming devastat- ing menace, causing deleterious effects and deadly impact on the society as a whole, Par- liament in its wisdom, has made effective provisions by introducing Act 81 of 1985 specifying mandatory minimum imprison- ment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the per- son accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely, ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 11 Neutral Citation No. ( 2024:HHC:6958 )
(i) there are reasonable grounds for believ-
ing that the accused is not guilty of such of- fence; and .
(ii) that he is not likely to commit any of-
fence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent ac- cused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should imple- ment the law in the spirit with which Parlia- ment, after due deliberation, has amended."
20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also sub- ject to the limitation placed by Section 37 which com-
mences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
21. The expression "reasonable grounds" means some- thing more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in them- selves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying ob-
::: Downloaded on - 14/08/2024 20:32:12 :::CIS12 Neutral Citation No. ( 2024:HHC:6958 ) ject of Section 37 that in addition to the limitations pro- vided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed un- .
called for."
15. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 wherein it was observed at page 110:
"21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27-A and also for offences involving a commercial quantity are:
(i) The Prosecutor must be given an opportunity to oppose the application for bail; and
(ii) There must exist "reasonable grounds to believe" that : (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail.
22. The standard prescribed for the grant of bail is "reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of this Court in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10-11) "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the existence of such facts and circumstances as are sufficient in themselves to justify the recording of ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 13 Neutral Citation No. ( 2024:HHC:6958 ) satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie .
meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
'7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.' [See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532] ] ***
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis, it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 14 Neutral Citation No. ( 2024:HHC:6958 ) and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."
.
(emphasis supplied)
23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."
16. In the present case, there is no material to show that the petitioner has not committed the offence punishable under Section 20(b)(ii)(c) of the NDPS Act; rather the material on record clearly shows that the petitioner was found in possession of the commercial quantity of Charas. Hence, the petitioner is not entitled to bail in view of the rigours of Section 37 of the NDPS Act.
17. It was submitted that the other accused has been released on bail and the petitioner is entitled to bail on the principle of parity. This cannot be accepted. The parity can be claimed when the circumstances are similar. It was laid down by the Hon'ble Supreme Court in Ramesh Bhavan Rathod v.
Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230: (2021) 2 SCC ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 15 Neutral Citation No. ( 2024:HHC:6958 ) (Cri) 722: 2021 SCC OnLine SC 335 that while determining the parity the role of the accused has to be considered. It was .
observed at page 246 "Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident, and the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
18. This position was reiterated in Tarun Kumar v.
Enforcement Directorate, AIR 2024 SC 169: 2023 SCC OnLine SC 1486 wherein it was observed:
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration."
19. A perusal of the jufgment passed by this Court in case titled Parmar Thakur @ Pawan versus State of H.P. 2024:HHC:4269 shows that he was released on bail because there was nothing to connect him with the commission of crime ::: Downloaded on - 14/08/2024 20:32:12 :::CIS 16 Neutral Citation No. ( 2024:HHC:6958 ) except the statement made by the present petitioner which was held to be inadmissible. This shows that the co-accused was .
released on bail because he could not be connected to the charas recovered by the police. The case of the petitioner is entirely different because he was found in possession of the bag which was kept by him between his legs and his possession is prima facie established at this stage. Therefore, the petitioner cannot claim parity with the co-accused.
20. Since the petitioner has failed to satisfy the requirements of Section 37 of the NDPS Act, hence he is not entitled to bail.
21. Consequently, the present petition fails and the same is dismissed.
22. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 14th, August, 2024 (Nikita) ::: Downloaded on - 14/08/2024 20:32:12 :::CIS