Himachal Pradesh High Court
Aditya Chauhan vs State Of Himachal Pradesh on 26 July, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No.1158 of 2024 a/w Cr.MP(M) No.1159, 1339, 1161 and 1290 of 2024 Reserved on: 11th July, 2024 .
Announced on: 26th July, 2024 ____________________________________________________________
1. Cr.MP(M) No.1158 of 2024 Aditya Chauhan ......Petitioner Versus State of Himachal Pradesh ......Respondent For the petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
2. Cr.MP(M) No.1159 of 2024 Paras Justa ......Petitioner Versus State of Himachal Pradesh ......Respondent For the petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
3. Cr.MP(M) No.1339 of 2024Ashutosh Sanolta ......Petitioner Versus State of Himachal Pradesh ......Respondent For the petitioner: Mr. Arsh Chauhan, Advocate. For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
____________________________________________________________ ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -2- 4. Cr.MP(M) No.1161 of 2024 Abhay Chauhan ......Petitioner Versus State of Himachal Pradesh ......Respondent .
For the petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
____________________________________________________________ 5. Cr.MP(M) No.1290 of 2024 Vishva Raj Singh ......Petitioner Versus State of Himachal Pradesh ......Respondent For the petitioner: Mr. Hamender Singh Chandel, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.
Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes Ranjan Sharma, Judge Out of total ten accused, five accused, who are bail petitioners herein, [Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay Chauhan and Vishva Raj Singh], have come up before this Court, seeking regular bail, under Section 439 of the Code of Criminal Procedure 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 30/07/2024 21:36:59 :::CIS -3-hereinafter [referred to as CrPC], originating from FIR No. 21 of 2024 dated 14.02.2024, registered at Police Station Theog, District Shimla [H.P.], under Sections 21 .
and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act).
BACKGROUND:
2. Parikshit Dhani, was arraigned as an accused in FIR No.21/2024 dated 14.02.2024, registered at Police Station Theog, District Shimla, [H.P.]. Consequently, ten other persons were arraigned as accused namely, Sahil Kumar [main supplier], Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay Chauhan, Vishva Raj Singh, Rakshit Chauhan, Vikram Chauhan [all in custody since 05.4.2024] and another accused Rahul [on interim bail], in the said matter.
3. Since the bail petitioners are in custody since 05.04.2024, therefore, with the consent of parties, all these petitions are taken up for disposal together, by a common order.
FACTUAL MATRIX
4. Case set up by Mr. Ajay Kochhar, Learned ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -4- Senior Advocate for bail petitioners [Aditya Chauhan, Paras Justa and Abhay Chauhan] and Mr. Arsh Chauhan, Advocate for the bail petitioner [Ashutosh Sanolta] and .
Mr. Hamender Singh Chandel, for the bail petitioner [Vishva Raj Singh] is that the bail petitioners have been falsely implicated and they have never indulged in activities as alleged. It is averred that no incident happened, as alleged by the prosecution. It is alleged in Para 3 of the petition that Justa, Aditya Chauhan and Ashutosh Sanolta were room r Parikshit Dhani, Paras mates at Chandigarh and a mutual understanding was arrived that Parikshit Dhani will look after their day to day needs [grocery, food etc.] and as and when they have money, they shall transfer the same to Parikshit Dhani. It is averred that the bail petitioners have transferred some amount, ranging between Rs.100/-
to Rs.500/- to Parikshit Dhani.
4(i). It is averred that no recovery of contraband has been made from the bail petitioner(s) whereas, the recovery of contraband was made from Parikshit Dhani.
It is averred that though the recovered contraband was ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -5- 12.06 grams but after complying with the mandate of Section 52-A of the NDPS Act, the recovered contraband came out to be 8.58 grams, which is an Intermediate .
Quantity.
4(ii). It is averred that the quantity of contraband was 8.58 grams and therefore, the rigors of Section 37 of the NDPS Act were not attracted. It is averred that the investigation is complete and Challan/Final Police Report has been presented before the Court i.e. Learned Special Judge-II, Shimla [HP]. It is averred r jurisdictional that petitioner(s) are respectable persons, having deep roots in the society and they have no criminal history and in case, bail is granted, they shall not misuse their liberty.
4(iii). It is averred that the petitioners [Aditya Chauhan, Paras Justa and Vishva Raj Singh], filed bail application(s) before the Learned Special Judge-II, Shimla, [H.P.], but the same was withdrawn. Thereafter, the bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh Sanolta and Abhay Chauhan] again filed bail applications before the Learned Special Judge [CBI], Shimla, [H.P.] which was rejected on 29.05.2024, Annexure ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -6- P-1, after considering all factors and the factum that the second bail application filed after a short duration does not reveal any change in circumstances. It is in .
this background, that the bail petitioners have come up before this Court, seeking regular bail in instant case(s).
PROCEEDINGS BEFORE THIS COURT
5. Instant bail petitions Cr.MP(M) No.1158/2024, [Aditya Chauhan vs State of Himachal Pradesh], Cr.MP(M) No.1159/2024, [Paras Justa vs State and No.1161/2024, [Abhay Chauhan vs State] were listed before r Cr.MP(M) this Court on 31.05.2024, but the same were adjourned at the request of the Learned Senior Counsel.
5(i). However, on 15.06.2024, this Court, issued notice [in Cr.MP(M) No.1158/2024, in re Aditya Chauhan vs State of Himachal Pradesh; in Cr.MP(M) No.1159/2024 in re Paras Justa vs State, in Cr.MP(M) No.1161/2024, Abhay Chauhan vs State].
Likewise, this Court issued notice on 03.07.2024 [in Cr.MP(M) No.1339/2024 in re Ashutosh Sanolta vs State of Himachal Pradesh] and on 27.06.2024 [in Cr.MP(M) No.1290/2024, Vishva Raj Singh vs State] ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -7- with directions to the State Authorities to file the Status report and on 27.06.2024, time to file status report was enlarged. The State Authorities furnished the Status .
Report dated 11.07.2024, on the Instructions of SHO, Police Station Theog, District Shimla [H.P.], which was taken on record and the copy of the Status Report(s) were furnished to Learned Senior Counsel Mr. Ajay Kochhar and Mr. Arsh Chauhan and Mr. Hamender Singh Chandel, Advocate(s), for respective petitioner(s).
On receipt of the Status Report(s), the Learned Counsel(s) have prayed for hearing the matter finally.
Accordingly, with the consent of the parties, all these petitions were finally heard and are decided by a common order.
STAND OF THE STATE AUTHORITIES
6. Perusal of the Status Report(s) dated 11.07.2024, reveals that the State Authorities have set up a case, that on 14.02.2024, while the police party was on patrolling duty, from Rahi Ghat to Ekant Vatika, near Theog, a car bearing Registration No.HP63C-5463, was parked on the main road. Two persons, namely, Kanshi Ram and ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -8- Ashwani Jarek, were seen standing besides the said car, when, they noticed a boy, coming towards them, but on noticing the police patrolling party, the aforesaid boy .
[who was Parikshit Dhani], became perplexed and he took out and threw a polythene out of his pocket, which was recovered by the police, leading to sampling of recovered contraband, preparation of rukka, after completing of codal formalities and registration of FIR.
6(i).
Status Report(s) indicate that accused Parikshit Dhani, from whom the recovery was made was arrested on 14.02.2024, by the police authorities. Consequent upon his arrest and during investigation, it transpired that the accused, Parikshit Dhani had been staying as room-
mates in Chandigarh along with three other accused, namely, Aditya Chauhan, Paras Justa and Ashutosh Sanolta and all these four accused had purchased contraband from main supplier, Sahil Kumar, a resident of Moti Jagran Complex, Chandigarh.
6(ii). Status Report further reveals that Sahil Kumar, [main supplier], and these four accused, namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta ::: Downloaded on - 30/07/2024 21:36:59 :::CIS -9- were [main peddlers] in constant touch with each other, through mobile calls which is clear, from the Call Detail Records [CDRs] also. During investigation, the State .
Authorities collected the Bank Transaction Records [BTRs], revealing monetary transactions worth lakhs of rupees amongst the above named four accused and the main supplier [Sahil Kumar].
6(iii). Status Report further reveals that the main supplier, [Sahil Kumar] and the main peddlers [Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta], have resorted to illegal trafficking and trading i.e. Sale, Purchase, Transportation and Inter-State Import of contraband [Heroin/ Chitta]. All these accused resorted to further sale-purchase of Heroin/Chitta through the local-
sub peddlers, namely, Abhay Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit Chauhan and Vikram Chauhan in Theog and Kotkhai areas of District Shimla, indicating concerted effort, criminal intent and criminal conspiracy of all the accused.
6(iv). Status Report points out that two accused, namely Rakshit Chauhan and Vikram Chauhan are ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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absconding as on day. However, it is stated that the investigation is complete and the Charge-sheet/Final Police Report has been filed before the Learned Trial Court .
on 10.04.2024.
In terms of the Status Report, the Learned State Counsel has prayed for rejection of the bail application(s), at this stage.
7. Heard, Mr. Ajay Kochhar, Learned Senior Counsel, Mr. Arsh Chauhan and Mr. Hamender Singh Chandel, Advocate for the bail petitioner(s) and Mr. Hemant K. Verma, Learned Deputy Advocate General for the Respondent and have perused the available material.
STATUTORY PROVISIONS:
8. In order to test, the claim for enlargement on bail, it is necessary to have a recap of the provisions of Section 21, 29 and 35 of the NDPS Act, which reads as under :-
"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 rule or order made or condition of licence granted thereunder, manufactures, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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;
(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 r 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 exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-
.
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
35. Presumption of culpable mental state.- r (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.- In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
MANDATE OF LAW:
9. Notably, the offences under the NDPS Act ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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including Section 21 of the aforesaid Act, as in this case are cognizable, therefore, the claim of the suspect-
accused for post arrest bail-regular bail 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 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.
9(i). While dealing with the case for grant of ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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regular bail, under Section 439 Cr PC, the three judges 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.
9(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 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 well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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(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;
(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 r 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.
9(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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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.
9(iv). 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;
the gravity of offence; the role attributed to each of the accused; the severity of punishment prescribed for an offence(s); the character of the accused; the possibility of securing presence of accused during the trial; the apprehension of witnesses being tampered; the possibility of accused causing any threat or inducement to witnesses;
by forming a prima facie opinion in the context of above broad-parameters and by balancing the personal liberty of an accused vis-à-vis the societal rights and interests; and ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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without delving into merits, so as to prevent any prejudice to either the accused or the prosecution.
OBJECT OF NDPS ACT:
.
10. Even in order to examine the claim for bail under the NDPS Act, this Court deems it necessary, to have a recap of the Preamble of the NDPS 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 r 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 Narcotic Drugs and Psychotropic Substances and for matters connected therewith"
10(i). While dealing with the object of the NDPS Act, the Hon'ble Supreme Court in Durand Didier, (1990) 1 SCC 95, has mandated that the 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 :
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"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.
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."::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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24. With deep concern, we may point out that the organised activities of the 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(ii). Even a suspect or an accused under the NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely because the accusation is relating to either small or intermediate quantity of contraband. Courts cannot feign ignorance that it is the modus operandi of Drug Mafia's or Master-
minds or King Pins, who primarily act through persons, who are either indigent or are poor or are unemployed or have unwarranted and unexpected financial expectations so as to become over night rich or who suffers financial instability etc. Taking advantage of these circumstances, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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the Kingpins or Master minds by alluring them so as to mould them to become main suppliers/main peddlers and then to induce them to act as sub-local peddlers for carrying .
on trafficking of small and intermediate quantity of contraband with a predesigned calculation that in case of their involvement, they may have an easy and earlier release etc. Day in and day out such instances are endlessly creeping in and are constantly on the rise. With the passage of time, these peddlers turn out to be habitual offenders, by involving them in multifarious cases, either under the NDPS or other Statutes.
10(iii). 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 the accusation or culpability or involvement then, in larger societal interests, the rule of law needs to be strictly enforced.
Any drug peddler or trafficker or person cannot have an automatic and vested right to be enlarged on bail, merely because the quantity of contraband involved is either small or intermediate. An assertion of personal liberty of a person ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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including an accused, cannot be in the realm of absolutism and can never be an uncontrolled and unrestricted one.
Personal liberty of a person ends where, the liberty of another .
is sought to be or is intended to be or is actually violated.
Personal liberty has to succumb to larger societal interests which stand at a higher pedestal. Enlarging such persons on bail, shall certainly amount to sacrificing the society, the state and of course, the nation, to such nefarious activists.
10(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 such an eventuality, the individual right(s) shall certainly have to succumb to larger 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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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 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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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 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 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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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 that the social concern in the case at .
hand deserves to be given priority over lifting the restriction of liberty of the accused."
10(v). This Court is conscious of the fact that though the rigors of Section 37(1)(b)(ii) of the NDPS Act, are not applicable in offences relating to Small Quantity or Intermediate Quantity but the fact offences under the NDPS Act are "cognizable offences", in terms of Section 37(1)(a) of the Act.
remains, that the In normal parlance, the claim of an accused for bail has to be examined and tested in the light of the parameters mandated by the Hon'ble Supreme Court from time to time. Merely, because the accusation relates to either a small or Intermediate Quantity, shall neither confer an automatic right nor a vested right of bail.
Involvement in offences relating to small or intermediate quantity does not give a license or leverage to a person to indulge in nefarious activities. The Court has to form an opinion regarding the involvement of an accused, from ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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the Case Diary or the Status Report(s) or other available material, and in normal situations, aforesaid material must prevail unless the same is contradicted and/or .
overcome or is disproved by other evidence which on the face of it casts doubt on the material(s) gathered by the prosecution. Enlargement on bail merely because the offence-
accusation relates to small or Intermediate Quantity, despite, the fact that the material on record reveals the prima facie case or reasonable grounds shall certainly result in adding wings to their flight and giving leverage to such suspect-accused to continue, expand and flourish in inhumane, prohibited, illegal and nefarious activities. Persons including in these activities curtail the fundamental right of a commoner to live with dignity, by causing adversarial effect on his mental and physical state, including health who fall prey to these activities.
10(vi). 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, when the available material does not points towards the prima facie involvement ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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and the past conduct being unblemished, subject to the fulfillment of other broad parameters, mandated by the Hon'ble Supreme Court, from time to time as detailed herein.
.
ANALYSIS OF CLAIM IN INSTANT CASE
11. Notwithstanding the orders dated 29.05.2024 [Annexure P-1], passed by Learned Trial Court, dismissing the bail application, this Court proceeds to examine the prayer of the petitioner(s) for bail in instant case(s).
12. After taking into consideration entirety of the facts and circumstances of the case; and the material on record; and the statutory provisions; and the mandate of law, as referred to above, this Court is of the considered view, that all the bail petitioners [Aditya Chauhan, Paras Justa and Ashutosh Sanolta, Abhay Chauhan and Vishva Raj Singh], are not entitled to be enlarged on bail, at this stage, for the following reasons :-
12(i). The prima facie accusation is made out against all the bail petitioner(s), at this stage.
12(ii). The material on record, which is borne out from the Status Report filed in respective cases, which are ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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pari-materia, indicates that, reasonable grounds exist, to believe the accusation against the bail petitioner(s), in view of the following aspects :-
.
12(iii). PRIMA FACIE ACCUSATION BETWEEN MAIN SUPPLIER [SAHIL KUMAR] AND MAIN PEDDLERS [PARIKSHIT DHANI, ADITYA CHAUHAN, PARAS JUSTA, ASHUTOSH SANOLTA] Perusal of Status Report filed by the State Authorities indicates that Parikshit Dhani was arraigned as accused, from whom the contraband was recovered by the police. Even the accused, Parikshit Dhani, has affirmed in the statement that he used to procure prohibited substances [Heroin/Chitta] from Sahil Kumar [main supplier], who was a resident of Moti Jagran Complex, Chandigarh [UT]. Material on record reveals that Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta [main peddlers] were room mates at Chandigarh [UT], who belonged to Theog and Kotkhai in District Shimla [HP].
12(iv). PRIMA FACIE ACCUSATION BETWEEN MAIN PEDDLERS AND FIVE OTHER LOCAL PEDDLERS [ABHAY CHAUHAN, VISHVA RAJ SINGH, RAHUL, RAKSHIT AND VIKRAM CHAUHAN] Status Report reveals that four main peddlers ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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namely [Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashotosh Sanolta], after purchasing the contraband from main supplier [Sahil Kumar of Chandigarh], stored the .
contraband at different locations at Theog and Kotkhai in District Shimla [HP] and they resorted to the further sale and purchase of drugs-narcotics [Heroin/Chitta], to the local youth/people in Theog and Kotkhai areas of District Shimla through their local agents namely Abhay Chauhan, Vikram Chauhan.
r to Vishva Raj Singh, Rahul Sharma, Parikshit Dhani and 12(v). MODUS OPERANDI AND CONCERTED EFFORT BY ALL TEN [10] ACCUSED TOWARDS ILLICIT TRAFFICKING: SALE, PURCHASE AND INTER- STATE IMPORT:
Reference to the Status Report reveals that Sahil Kumar was the main supplier. Four main peddlers, namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta [bail petitioners] purchased the contraband [Heroin/Chitta] stored the same at different locations and they used to effectuate the sale and purchase of Heroin, to local youth/people of Kotkhai and Theog areas of District Shimla, through their local peddlers, namely ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Abhay Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit Chauhan and Vikram Chauhan.
Status Report points out the modus operandi .
whereby, contraband was supplied by main supplier, Sahil Kumar, to four main peddlers [namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta], who ensured its transportation from Chandigarh [UT] to Kotkhai/Theog areas of District Shimla [HP]. Material on record, indicates that these four main peddlers kept-stored the contraband at different locations in Kotkhai/Theog. Sale was effectuated by main four peddlers in the area of Kotkhai/Theog through the sub-local peddlers [namely, Abhay Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit Chauhan and Vikram Chauhan]. The material on record suggests these five local peddlers sold the contraband [Heroin/Chitta] to local youth-persons, after being satisfied, about the location of purchaser in the area.
Status Report indicates the Call Detail Records of all these ten accused, during October 2023 to February 2024; between the main supplier, Sahil Kumar; and main peddlers, namely Parikshit Dhani, Aditya Chauhan, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Paras Justa, Ashutosh Sanolta [bail petitioners] and others, Rakshit Chauhan and Vikram Chauhan that all accused were in constant touch with each other through .
their mobile and Whatsapp, so as to effectuate the Sale, Purchase, Transport and Inter-State Import of Heroin/Chitta, which is clear from the extract of Call Detail Records, as under :-
Call Detail Records between October 2023 to February 2024 Sr. Calls From Calls To No. of Calls No. Sahil Kumar Parikshit Dhani 469 1 [main supplier] r [main peddler] Parikshit Dhani Aditya Chauhan 284 2 [main peddler] [another main peddler & bail petitioner] Parikshit Dhani Paras Justa 307 3 [main peddler] [another main peddler & bail petitioner] Parikshit Dhani Ashutosh Sanolta 274 4 [main peddler] [another main peddler & bail petitioner] Parikshit Dhani Abhay Chauhan NIL 5 [main peddler] [local peddler & bail petitioner] Parikshit Dhani Vishav Raj Singh 8 6 [main peddler] [local peddler & bail petitioner] Parikshit Dhani Rahul Sharma 2 7 [main peddler] [local peddler] Parikshit Dhani Rakshit Chauhan 67 8 [main peddler] [local peddler] Parikshit Dhani Vikram Chauhan 199 9 [main peddler] [local peddler] ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Even the Status Report further indicates that there are financial transactions, which is clear from Bank Transaction Details Record [BDRs] between the main .
supplier [Sahil Kumar], and four main peddlers namely Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutoh Sanolta [bail petitioners] and the local peddlers, Abhay Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit Chauhan and Vikram Chauhan during the four months period w.e.f. October/November 2023 to February 2024, is borne out from the following extract:-
Bank Transaction Details between October 2023 to February 2024 Sr. Name of accused Name of co-accused Total amount No. [main peddlers and local peddlers] 1 Sahil Kumar Parikshit Dhani Rs.4,16,243/-
[main supplier] Paras Justa
Abhay Chauhan
2 Aditya Chauhan Parikshit Dhani Rs.3,71,000/-
[main peddler & bail Rahul Sharma
petitioner] Vishwajeet
Sahil Kumar
3 Paras Justa Parikshit Dhani Rs.3,97,206/-
[main peddler & bail Sahil Kumar
petitioner]
4 Ashutosh Sanolta Parikshit Dhani Rs.3,32,101/-
[main peddler & bail Vishva Raj Singh
petitioner]
5 Vishva Raj Singh Parikshit Dhani Rs.1,40,888/-
[local peddler & bail Ashutosh Sanolta
petitioner] Aditya Chauhan
Rakshit Chauhan
6 Rahul Sharma Parikshit Dhani Rs.2,08,000/-
[local peddler] Abhay Chauhan
Rakshit Chauhan
7 Rakshit Chauhan Parikshit Dhani Rs.55,000/-
[local peddler] Vishva Raj Singh
[absconding]
::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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8 Vikram Chauhan Parikshit Dhani Rs.46,200/-
[local peddler]
[absconding]
9 Abhay Chauhan Parikshit Dhani Rs.28,550/-
[local peddler & bail
petitioner]
.
12(vi). GRAVITY OF OFFENCE IN THIS CASE:
In the instant case, though the contraband [Heroine/Chitta], recovered from the accused Parikshit Dhani on 14.02.2024 was 12.06 grams, which at the time of complying with Section 52 of Act, came out to be 8.58 grams, yet, the material on record suggests that all the accused, including the main supplier [Sahil Kumar] and the other accused-main peddler Parikshit Dhani and the bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh Sanolta], had resorted to frequent bank transactions since October 2023 till February 2024, of about Rs.20,00,000/-
[Rupees Twenty Lakh], during this period. Even the call detail records reveal that all these accused were in constant/regular touch with each other ranging between 199 calls to 469 calls [except in case of Abhay Chauhan and Vishva Raj Singh], during the period of four months from October/November 2023 to February 2024, which fortifies the accusation, revealing prima facie accusation pointing ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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the nefarious activities of Sale, Purchase and Inter State Import of contraband [Heroine/Chitta], from Chandigarh [UT] to Kotkhai and Theog in District Shimla [H.P.], through .
their local peddlers, namely Abhay Chauhan, Rahul Sharma, Vishva Raj Singh, Rakshit Chauhan and Vikram Chauhan concerted, well mediated and coordinated design by all ten accused, including the bail petitioners since October 2023 till February 2024 by giving effect to the illegal and nefarious activities of sale, purchase, transport and Inter-State Import of Heroin/Chitta is borne out from the material on record.
12(vii). DANGEROUSITY-HARMFULLNESS OF DRUGS-
HAVING KILLING INSTINCT While dealing with the dangerousity, harfullness and killing instinct of the nefarious street drug [Heroin/Chitta] has been outlined by the Hon'ble Supreme Court, in Hira Singh versus Union of India, (2020) 20 SCC 272, that the provisions of the NDPS Act are not to be construed liberally but the effective implementation of the rule of law and the object of the enactment {NDPS} can be achieved by curbing and ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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stringently dealing with the nefarious activities and illegal trafficking of the most powerful, dangerous and injurious illegal street drug(s) 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 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 r 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 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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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 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. 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 ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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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 ...."
12(viii). In order to achieve the Rule of Law under the NDPS Act, while dealing with the claim for enlargement on bail, a situation, where the disclosure statements was corroborated with supportive evidence i.e. Call Detail Records and Bank Account Records, the High Court of Delhi, in Bail Application No.1295/2022, Avdhesh v. State [NCT of Delhi], Neutral Citation No.2022/DHC/003566, decided on 26.08.2022, held as under :-
"6.1. The first ground taken in the bail application is that the applicant/accused was not named in the secret information. It is true that the name of the petitioner was not there in the secret information, however, the main accused during his disclosure statement has named the present petitioner as supplier of poppy straw, so not naming the applicant in secret information is not itself a ground to release the present petitioner on bail. Similarly, it is true that no contraband was recovered either from the possession of the present petitioner or at his instance as the recovery was made at the instance of main accused Omkar but the present petitioner ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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has been named as supplier of poppy straw at the instance of the main accused, so both of them were in conspiracy with each other.
6.2. The next ground taken in the application .
is that the disclosure statements are not admissible and there is no supportive evidence. The question of disclosure statement being admissible or not admissible, will be decided at appropriate stage.
Moreover, the said statement is supported by evidence regarding payment made by main accused in the bank account of the wife of the present petitioner and 191 calls being exchanged between the main accused and the present petitioner.
r 8. The bail application is dismissed."
12(ix). In Cr.MP(M) No.273 of 2024, Davinder @ Chhinda vs State of Himachal Pradesh, this Court has denied the concession of bail, where the prima facie accusation reflecting the Sale, Purchase, Transport and Inter-State Import, causing deleterious and deadly effect on the society, in larger societal interests, as under:-
"17(v). Now this Court proceeds to examine the gravity and severity of the accusation, offence against the bail petitioner. In the present case, it is the bail petitioner, who managed the entire show leading towards the sale, purchase, transport and inter-State import of the alleged contraband i.e. the heroin/chitta [weighting 49.03 gms] i.e. 39.70 gms and 9.33 gms was recovered by the Police from two persons [Rishab Sehgal and Anish Sonker], who were sent to Delhi to meet the ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Nigerian, at the behest of the bail petitioner, as referred to above.
In terms of the NDPS Act and Schedule to the Act, any narcotic drug or psychotropic substances is categorized into small and commercial quantity. By interpretative .
process, any quantity which exceeds the specification(s) for "Smaller Quantity" but remains below the limit for "Commercial Quantity" has been categorized as "Intermediate Quantity". As per the Act and Schedule thereto, in case of Heroin/Chitta, the quantity upto 5 gms falls within "Small Quantity' and quantity exceeding 5 gms to below 249 gms comes within the ambit of "Intermediate Quantity".
In the instant case, the bail petitioner was involved in more than 49.03 gms of Heroin/Chitta, which is nine times more than the maximum prescribed limit for smaller quantity, for which the punishment stretches over to rigorous imprisonment for a period upto 10 years or with fine. Notably, the gravity of this street drug [heroin/chitta weighing 49.03 gms], is much more than the offences relating to murder, culpable homicide, rape, grievous hurt etc., for the reason, that in the case of rape or murder or culpable homicide or grievous hurt etc., it can have adversarial and killing instinct on countable persons; but the harmful, injurious and dangerousity of heroin/chitta is more graver and its culpability is writ large. In view of the gravity of the alleged offence, as explained in case of Hira Singh [supra] coupled with the fact that it is the modus operandi of these persons, that they resort to peddling in small or intermediate quantity of contraband, hoping that the Court(s) liberally construe the alleged involvement in small or intermediate quantity for purpose of bail. Merely because the ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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quantity allegedly involved is "Intermediate Quantity {49.03 grms of Heroin/ Chitta}" the same shall ipso facto cannot confer a right or leverage or license for claiming or granting bail and the rule of law cannot be permitted to be scuttled, as in this case. Such nefarious-
.
illegal drug trafficking and drug peddling and trading needs to be strictly dealt with and curbed, so that in coming times an uncontrollable adversial situation may not arise; when, one may have to repent later.
Accordingly, the gravity of the alleged offence in the instant case, restrains this Court, from showing any indulgence, at this stage."
12(x). Taking into account the facts narrated above, the instant case reveals an alarming state of affairs.
Though the FIR was registered on 14.02.2024, yet all ten [10] accused persons i.e. the main supplier [Sahil Kumar] resorted to the Sale-supply of Heroin/Chitta to the four main peddlers, namely Parikshit Dhani, Aditya Chauhan, Paras Justa, Ashutosh Sanolta [bail petitioners] and these four accused further indulged in the Sale/ transportation of contraband to the sub-local peddlers;
namely, Abhay Chauhan, Vishva Raj Singh [bail petitioners], Rahul Sharma, Rakshit Chauhan and Vikram Chauhan, who further resorted to the sale, purchase of Heroin/ Chitta, to the local youth/people in the areas of ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Kotkhai/Theog in District Shimla [HP]. Status Report(s) reveal that all these ten accused were in constant touch with each other, which is borne out from the Bank .
Transaction Detail Records [BTDRs] and the Call Detail Records [CDRs], for the period from October 2023 to February 2024. Not only this, the Status Report reveals that all these ten accused had resorted to nefarious activities for quite some time. The dangerousity and killing instinct of Heroin/Chitta is much more grave and serious vis-à-vis other graver offences like rape-murder etc. Since all ten accused persons have acted in a well knit and concerted design then, the prima facie accusation becomes more graver, having adversarial effects on numerous persons in the community-society. In peculiar facts of this case, where, ten accused persons have indulged in nefarious activities, therefore, the personal liberty of the petitioners herein shall certainly have to succumb to the larger societal interests, at this stage. Moreover the prima facie and reasonable grounds points towards the accusation against the bail petitioners and therefore, this Court refrains itself from enlarging the bail petitioners, in larger societal ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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interests, at this stage.
CONTENTION OF LEARNED COUNSEL FOR PETITIONER(S)
13. Learned Senior Counsel Mr. Ajay Kochhar and .
Mr. Arsh Chauhan and Mr. Hamender Singh Chandel, advocates have contended that the CDRs cannot be the basis for denying bail, is without any merit, for the reason, that prima facie accusation revealing criminal conspiracy and culpability in view of the 'Bank Transaction Detail Records [BTDRs]' and the 'Call Detail Records [CDRs]' inter se, the main supplier [Sahil Kumar] and four main peddlers-accused Parikshit Dhani and the present bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh Sanolta and other accused Abhay Chauhan and Vishva Raj Singh].
Notably, in Narcotics Control Bureau vs Mohit Aggarwal AIR 2022 SC 3444, Hon'ble Three Judges, of the Supreme Court upheld the prima facie accusation, on the basis of Bank Transaction(s) and CDRs, in the following terms :-
"16. Coming back to the facts of the instant case, the learned Single Judge of the High Court cannot be faulted for holding that the ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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appellant NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the .
majority decision, a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act.
Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside. However, this was not the only material that the appellant NCB had relied on to oppose the bail application filed by the respondent. The appellant-NCB had specifically stated that it was the disclosures made by the respondent that had led the NCB team to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups. Counsel for the appellant-NCB had also pointed out that it was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on and the CDR details of the mobile phones of all co-accused including the respondent herein showed that they were in touch with each other.
17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession .
of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.
19. As a result of the aforesaid discussion, the present appeals are allowed and the impugned order releasing the respondent on post-arrest, is quashed and set aside.
The bail bonds of the respondent are cancelled and he is directed to be taken into custody forthwith."
13(i). While setting aside a bail order, [though under Section 37 of the Act], whereby, the Call Detail Records [CDRs] indicated that one accused was in constant touch with other accused, the Hon'ble Supreme Court, in Union of India through Narcotics Control Bureau, Lucknow vs Md. Nawaz Khan, Criminal Appeal No.1043 of 2021, has held as under :-
"30. The following circumstances are crucial to assessing whether the High Court has correctly evaluated the application for bail, having regard to the provisions of Section 37:
(i) The respondent was travelling in the vehicle all the way from Dimapur in Nagaland to Rampur in Uttar Pradesh with the co-accused;::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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(ii) The complaint notes that the CDR analysis of the mobile number used by the respondent indicates that the respondent was in regular touch with the other accused persons who were known to him;
.
(iii) The quantity of contraband found in the vehicle is of a commercial quantity; and
(iv) The contraband was concealed in the vehicle in which the respondent as travelling with the co-accused.
32. The High Court has clearly overlooked crucial requirements and glossed over the circumstances which were material to the issue as to whether a case for the grant of bail was established. In failing to do so, the order of the High Court becomes unsustainable. Moreover, it has emerged, r during the course of the hearing that after the respondent was enlarged on bail he has consistently remained away from the criminal trial resulting in the issuance of a non- bailable warrant against him. The High Court ought to have given due weight to the seriousness and gravity of the crime which it has failed to do.
33. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 1 October 2020 in Bail No.7379 of 2019."
13(ii). Moreover, while dealing with the claim for bail under the Special enactments under TADA, MCOCA, WAPA including NDPS, the Hon'ble Supreme Court, in Union of India vs Barakathullah, 2024 SCC Online SC 1019, mandated that, at the stage of bail, the materials collected, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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statements recorded or documents cannot be discarded on the ground of being not reliable or inadmissible in evidence, in the following terms :-
.
"10. Since all offences alleged against the respondents are covered under Chapter IV and VI of the UAPA, the rigors and restrictions of sub-section (5) of Section 43D would apply to the facts of this case. It may be noted that this Court in case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), had an occasion to deal with the subsection (5) of Section 43D and in similar fact situation, after comparing the similar provisions under the Special enactments such as TADA, MCOCA, NDPS as also the earlier decisions of this court, r had held as under:
"23. .....By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie considering a discharge application or framing of charges in relation to offences under the 1967 .
Act......."
11. It was further observed :-
"24. A priori, the exercise to be undertaken by the Court at this stage - of giving reasons for grant or non- grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the r accused in the commission of the stated offence or otherwise.
25. From the analysis of the impugned judgment [Zahoor Ahmad Shah Watali v. NIA, 2018 SCC OnLine Del 11185] , it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017. Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge- sheet already filed against the respondent .
is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 CrPC) and other material gathered by the investigating agency during investigation."
r 27. For that, and presented along with the report the totality of the material gathered by the investigating agency and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/ evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as it is."
12. The ratio of the said judgment has been consistently followed by this Court in many cases, and recently in Gurwinder Singh vs. State of Punjab and Another (supra), in which this court has culled out following guidelines from Watali's Case:
::: Downloaded on - 30/07/2024 21:36:59 :::CIS- 48 -
"34. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under Section 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out the framework of .
the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follows:
•Meaning of 'Prima facie true' [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. • Degree of Satisfaction at Pre-Charge sheet, Post Chargesheet and Post-
Charges- Compared [para 23] :
Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the .
charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.
• Reasoning, necessary but no detailed evaluation of evidence [para 24] :
The exercise to be undertaken by the Court at this stage--of giving reasons for grant or non-grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.
• Record a finding on broad
probabilities, not based on proof
beyond doubt [para 24]:
"The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise."
• Duration of the limitation under Section 43D(5) [para 26] :
The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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• Material on record must be analysed as a 'whole'; no piecemeal analysis [para 27] :
The totality of the material gathered by the investigating agency and presented along with the report and including the case .
diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
• Contents of documents to be presumed as true [para 27] :
The Court must look at the contents of the document and take such document into account as it is.
• Admissibility of documents relied upon by Prosecution cannot be r questioned [para 27] :
The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence....... In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible."
19. Though it was sought to be submitted by learned counsel appearing for the respondents that the material/evidence collected by the Investigating Agency and statements of witnesses relied upon by the prosecuting agency is not reliable, the said submission cannot be accepted. As held by this Court in Watali's case, the question of discarding the material or document at the stage of considering the bail application of an accused, on the ground of being not reliable or inadmissible in evidence, is not ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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permissible. The Court must look at the contents of the documents and take such documents into account as it is and satisfy itself on the basis of broad probabilities regarding the involvement of the accused in the commission of the alleged offences .
for recording whether a prima facie case is made out against the accused.
24. In that view of the matter, the impugned order passed by the High Court is set aside.
The respondents shall forthwith surrender themselves before the appellant-NIA. Since, the chargesheet has already been submitted before the Special Court, it is directed that the Special Court shall proceed with the trial as expeditiously as possible and in accordance with law, without being influenced by any of the observations made by this Court in this order."
13(iii). A Coordinate Bench of this Court, in Cr.MP(M) No.1636 of 2023, Rakesh Kumar vs State of Himachal Pradesh, decided on 11.12.2023, has held that the material borne out from the CDRs and Bank Transactions are sufficient to construe the accusation, in the following terms :-
"27. It has been further contended that petitioner has not been involved only on the basis of Call Detail Report, but there are transactions of substantially huge amount from the petitioner to Khushwind as well a Hari Mohan Dass, which are sufficient to construe involvement of the petitioner in commission of offence, particularly when after arrest of Khushwind, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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petitioner had eloped and not only this Hari Mohan Dass is not traceable till date and, therefore, it has been submitted that it cannot be said that there is not even remote link between the recovery of charas from Kushwind and amount paid by the petitioner .
Rakesh Kumar to Kushwind. It has been further contended that there was/is no enmity between kushwind and Rakesh Kumar and, therefore, there was no occasion for Kushwind to implicate Rakesh Kumar by making statement before the Police regarding ownership and transportation of charas.
32. With respect to delay, it has been contended by learned Additional Advocate General that there is no inordinate delay in completion of trial because trial is likely to be completed within reasonable period of three years and for recovery of huge quantity r of charas and evidence of involvement of petitioner therein, petitioner is not entitled for bail, as he has been found involved in commission of heinous crime damaging and society as well as Nation."
PLEA OF FALSE IMPLICATION: MISCONCEIVED
14. The Learned Senior Counsel contended that the bail petitioner(s) have been falsely implicated is without any substance. Notably, even Learned Senior Counsel has not pointed out anything to show that the prima facie accusation is not made out at this stage.
However, the material on record indicates the prima facie connection and linkage [based on BTDRs and CDRs] worth ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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lakhs of rupees inter se the main supplier, [Sahil Kumar] and the other main peddlers-accused Parikshit Dhani including the bail petitioners [Aditya Chauhan, Paras .
Justa and Ashutosh Sanolta] and other sub-peddlers revealing the modus operandi, intention and common design and integrated effort revealing conspiracy/culpability in committing offence relating to illegal and nefarious drug trade by resorting to the Sale, Purchase, Transport and Inter-
State Import of contraband by all ten accused. In these circumstances, the claim of the petitioners for bail is without any merit, at this stage.
TWO ACCUSED STILL ABSCONDING:
15. The prayer of Learned Senior Counsel for bail is not tenable, at this stage, for the reason, that out of ten accused, two of the accused, namely, Rakshit Chauhan and Vikram Chauhan are absconding. Grant of bail to bail petitioners shall certainly add wings to the in-flight, giving rise to every likelihood of the bail petitioners fleeing away along with absconded accused and therefore, the prayer is declined, at this stage.
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POSSIBILITY OF INDULGING IN ILLICIT TRAFFICKING VIOLATING SOCIETAL INTERESTS :-
16. The prayer for bail is not tenable, in view of the fact that all ten accused including the bail .
petitioners, were acting with a predetermined mind to resort to sale, purchase, transportation and Inter-State Import of contraband. Enlargement on bail will give rise to possibility that the bail petitioner(s) will again indulge in illegal and nefarious trafficking-activities being carried out by them from October 2023 till the registration of FIR dated 14.02.2024, which was continued thereafter, which is borne out from the Bank Transactions [BTDRs] to the tune of lakhs of rupees and the CDRs on record. In these circumstances, in larger societal interests, this Court refrains itself, from granting the concession of bail to the bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay Chauhan and Vishva Raj Singh], at this stage.
RELIANCE ON JEET RAM'S CASE: DISTINGUISHABLE
17. Learned Senior Counsel has relied upon a judgment passed by the Hon'ble Supreme Court in ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Special Leave to Appeal [CRL] No.5822/2024, titled as Jeet Ram vs State of Himachal Pradesh, to support his contention, which reads as under:-
.
"3. The appellant is charged with the offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Heroin of the quantity of 8.54 grams was recovered from the co-accused. We have perused the allegations contained in the charge-sheet against the appellant. The allegation seems to be that there was a transaction between the appellant and the co-accused under which a sum of Rs.1,000/- was transferred by the appellant r to the co-accused by Google Pay."
A perusal of the aforesaid judgment, reveals that bail was granted therein, as the petitioner-accused [Jeet Ram] was implicated in view of the transaction of Rs.1,000/-
[Rupees One Thousand], from his Google Pay account.
The facts in case of Jeet Ram [supra], with due respect, is entirely different from the facts of the present case, where, the criminal intent, criminal conspiracy and actual involvement of Sale, Purchase, Transport and Inter-
State Import of Heroin/Chitta is borne out and supportive from the material on record, revealing the bank transactions worth lakhs of rupees, which is further supported from ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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constant conversation made out from the main supplier Sahil Kumar and other main peddlers-accused [Aditya Chauhan, Paras Justa, Ashutosh Sanolta and sub-peddlers, .
namely, Abhay Chauhan and Vishva Raj Singh], along with the other accused person(s).
RELIANCE ON PALLULABID AHMAD'S CASE:
MISCONCEIVED:
18. Learned Senior Counsel has prayed for bail in terms of the law in Special Leave to Appeal [CRL] No.242/2022,r titled as, State by [NCB] Bengaluru vs Pallulabid Ahmad Arimutta & Anr.
In order to appreciate the contention of the Learned Senior Counsel, it is necessary to have a recap of Paras No.8, 9 and 13 of the judgment, in case of Pullulabid Ahmad Arimutta [supra], as under:-
"8. Vide order dated 05th January, 2020, learned counsel for the petitioners NCB were directed to prepare a comprehensive/ tabulated statement with respect to the role attributed to each of the respondents, the evidence gathered against them at the time of their arrest, their antecedents, the dates on which they were arrested and the period of custody undergone by them, for ready reference. The said tabulated statement has been filed and a perusal thereof reveals that in SLP (Crl.) @ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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1465/2021, SLP (Crl.) Nos. 1773-1774/2021, SLP (Crl.) No. 2080/2021, heavy reliance has been placed by the petitioner-NCB on the voluntary statements of the accused and the co-accused recorded under Section 67 of the NDPS Act for arresting them. Another piece .
of evidence referred to is the CDR details in respect of A-3, A-4, A-5, A-6 and A-8 in the first case which as per the prosecution, goes to show that the said respondents were constantly in touch with each other and with A-1 and A-2 on the date of the seizure. The attention of this Court was also drawn to the fact that the antecedents of A-5, A-6 and A-8 in the first case and A-2 and A-5 in the second case are not clean.
9. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.
13. Needless to state that the observations made above are limited to examining the relief sought in the present petitions for cancellation of bail. This Court has refrained from making any observations on the merits of the case pending before the trial Court."::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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Perusal of the aforesaid judgment, reveals that the bail was granted in view of the statements recorded under Section 67 of NDPS Act, when, "No substantial .
material was available with the prosecution at the time of arrest to connect the accused-respondent with the allegations of indulging in drug trafficking".
In the instant case, there is substantial material on record, pointing out prima facie accusation and the factum that reasonable grounds exist [based on active, regular and innumerable bank transactions worth lakhs of rupees and mobile calls ranging from 274 and 469, as per the CDRs inter se, within a period of about 4-5 months, between main supplier [Sahil Kumar] and the other accused Parikshit Dhani and bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay Chauhan and Vishva Raj Singh]. In these circumstances, the plea for bail, at this stage, is denied in larger societal interests when, two of the nine accused are absconding and there is likelihood/possibility that on release, the bail petitioners may flee away and/or indulge in ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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nefarious activities again in association with accused who are absconding, as on day.
RELIANCE ON BHARAT CHAUDHARY'S CASE:
.
19. Learned Counsel(s) for the bail petitioners have has placed reliance on the judgment passed by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 5703 of 2021, 'Bharat Chaudhary versus Union of India', for claiming bail; but with all respect, the fact, situation, in the case of Bharat Chaudhary [supra], was entirely different [wherein the very genesis of recovered contraband was in dispute, which was alleged to be a herb/medicine meant to enhance male potency and did not attract provisions of NDPS Act; coupled with the fact that the recovered contraband was not sent for analysis; and also the factum of prolonged custody of two years]; whereas, in the instant case, all the accused including the bail petitioners were in regular and constant touch which is patently borne out from the CDRs [Call Detail Records] and BDRs [Bank Detail Records], revealing the prima facie accusation. The Learned Senior Counsel and other counsels for the petitioners have neither disputed ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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nor placed any material to prima facie disbelieve the accusation, at this stage.
Thus, the prima facie accusation dissuades .
this Court, to grant bail, in view of the gravity of offences, coordinate and well knit modus operandi to effectuate sale, purchase, transport and Inter State Import of Heroin/Chitta from Chandigarh [UT] to District Shimla [HP];
which was being given effect to from October/November 2023 till the registration of FIR dated 14.02.2024 and thereafter, till 19.02.2024 in larger societal interests, at this stage.
MERE COMPLETION OF INVESTIGATION NOT A GROUND FOR BAIL
20. Mr. Ajay Kochhar, Learned Senior Counsel and Mr. Arsh Chauhan and Mr. Hamender Singh Chandel, Advocates, submit that since the investigation is complete and no custodial interrogation is required by the State Authorities coupled with the fact that the bail petitioners have given an undertaking for participating in the investigation and consequential trial therefore, the bail may be granted, is in considered view of this Court, ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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cannot ipso facto be the basis for enlarging the petitioners on bail, in view of the gravity of the offence when, the available material points towards the grave and severe .
prima facie accusation against the bail petitioner(s).
Moreover, the Hon'ble Supreme Court in SLP (Crl) No. 10810 of 2023 titled as The State of Jharkhand versus Dhananjay Gupta @ Dhananjay Prasad Gupta decided on 07.11.2023, has categorically held, that merely because the investigation is complete or undertaking to participate in the trial has been furnished cannot in itself, be a ground for releasing the bail petitioner in offences of a serious nature, in following terms :-
"4. The reasons that persuaded the High Court for granting bail to the respondent have been stated in paragraph-4 of the impugned order reads, thus:-
"4. Innocence has been claimed by the learned counsel for the applicant and undertaking has been given for participation in the trial. Further, it has been submitted that no overt act has been alleged against this applicant. Investigation is complete. On the above basis, prayer for bail has been made."
5. When the offences alleged, inter alia, includes one under Section 307, IPC and the accused concerned is so arraigned with the aid of Section 149, IPC, such submissions, reflected in paragraph or ::: Downloaded on - 30/07/2024 21:36:59 :::CIS
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the mere factum of completion of investigation by itself, cannot be the reason(s) for grant of bail without due consideration of the relevant aspects. At any rate, mere claim of innocence or undertaking to participate in the trial .
or contention of absence of specific allegation of any overt act cannot, in such circumstances, be assigned as reasons for grant of bail in a case of serious nature.
We are of the considered view that in such circumstances, impugned order deserves to be set aside and the matter is liable to be remanded to the High Court for fresh consideration in accordance with law. In that view of the matter, the impugned order dated 12.01.2023 passed by the High Court in B.A. No.12508 of 2022 stands set aside and the matter is remanded back to the High r Court for fresh consideration in accordance with law. The application which culminated in the impugned order is restored into the file in its original number to facilitate such consideration. We make it clear that we have not made any observation touching the merits."
In view of the above discussions and for the reasons stated above and in the peculiar facts of the instant case(s), as referred to above, this Court refrains itself, from acceding to the prayer for bail, in view of the prima facie accusation and reasonable grounds against all ten accused, including the bail petitioners herein.
Accordingly, all the bail petition(s) being devoid of any merit are dismissed, at this stage.
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21. The observations made in this judgment shall not be construed in any manner as an indictive of findings, for or against the parties herein, either for .
the purpose of investigation or for trial, thereafter, in any manner, which shall proceed, independent of any of the observations herein, in accordance with law.
In the aforesaid terms, the bail petition(s) are dismissed and the pending application(s), if any, shall also stand disposed of.
r to
(Ranjan Sharma)
Judge
July 26th, 2024
(Chiranjeev)
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