Anuj Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking interim bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’) vide FIR No. 210 of 2023, dated 5.8.2023, registered at Police Station Baddi, District Solan, H.P. The petitioner is innocent and he was falsely implicated. The petitioner is suffering from a kidney stone. He was checked at IGMC, Shimla. A stent was inserted into his kidney. The stent is to be removed within 12 weeks and the petitioner requires medical care during this period. The petitioner is not required by the police for investigation and the investigation is complete. No offence is made out against the petitioner. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

The petition was opposed by filing a status report, asserting that the Police searched the house of Mohinder based on the information and recovered 14500 tablets weighing 5133 grams of Tramadol Hydrochloride, 11400 tablets weighing 1413.6 grams of Alprazolam tablets, 600 tables of Alprazolam weighing 61.2 grams. The drugs were seized. The screenshot of the WhatsApp chat was taken into possession. Amit Kumar was arrested and as per the Whatsapp chat, the drugs were supplied by Anuj Sharma, the present petitioner. As per the report of analysis, the drugs were found to be Tramadol and Alprazolam.

The challan was prepared and presented before the Court. As per the report of Professor, Department of Urology, IGMC, Shimla, the petitioner was treated for stenting and removal of stone. The cathedral removal has been advised on 30.10.2023. The stent is to be removed after reviewing the investigation. Hence, it was prayed that the petition be dismissed.

I have heard Mr. Yashveer Singh Rathore, learned Counsel for the petitioner and Ms. Avni Kochhar, Deputy Advocate General for the respondent-State.

Mr. Yashveer Singh Rathore, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is insufficient evidence to connect him with the commission of the crime. He is suffering from a physical ailment and requires treatment at PGI, Chandigarh therefore, the petition be allowed and the petitioner be released on interim bail to enable him to undergo the treatment.

Ms. Avni Kochhar, learned Deputy Advocate General for the respondent-State submitted that the police have collected the Whatsapp chat between the petitioner and Amit Kumar, which shows that they were in touch with each other.

The co-accused Amit Kumar had also transferred the money to the account of Anuj Sharma which corroborates the Whatsapp chat. The petitioner has been treated at IGMC, Shimla and there is no need to grant the interim bail. Hence, she prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

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:-

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 grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility 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.

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 has 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.

(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].)”

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

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;

(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.’

The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

The quantity of Tramadol found in the exclusive possession of Mahinder Singh was a commercial quantity. The police seized the mobile phone of Mahinder Kumar and found that the drug was supplied by Amit Kumar. The chat between the two was also seized by the police. The police also found that Amit Kumar had obtained the drugs from the present petitioner Anuj Sharma and Amit Kumar had transferred ₹47,500/- to Anuj Sharma. The Whatsapp conversation and transfer of money establish, at this stage, that the petitioner had supplied the drugs to Amit Kumar who had supplied them to Mahinder. Thus, there is sufficient material on record, at this stage, to connect the petitioner with the commission of an offence punishable under Section 22 read with Section 29 of the ND&PS Act.

Reliance was placed upon the photocopy of the discharge card in which it was stated that a stent was inserted which was to be removed within twelve weeks. It was further mentioned that the petitioner was advised EC Renal Scan at PGI Chandigarh or the Centre of Choice. It was submitted that since the treatment has to be taken at PGI, Chandigarh; therefore, the interim bail is necessary. This is not correct. The status report dated 16.11.2023 mentions that the petitioner was advised urethral catheter removal on 30.10.2023 and to report to the Urology Department. The status report clearly shows that the petitioner is being treated at IGMC, Shimla. Even if he has been advised to visit PGI, Chandigarh for some scan, it has not been asserted that the petitioner is not being taken to PGI Chandigarh; therefore, the petitioner cannot be granted interim bail on medical grounds.

Ms Avni Kochhar, learned Deputy Advocate General has submitted that the State will take all steps to ensure the well-being of the petitioner. There appears no reason to doubt her statement.

Since the only reason for seeking the temporary bail was taking the petitioner to PGI, Chandigarh for treatment, the same does not survive because the petitioner is being treated at IGMC, Shimla.

Final order:

Consequently, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.