Arun Kumar Gupta vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

This bail petition under Section 439 of Code of Criminal Procedure originates from FIR No. 261/2020, dated 1.9.2020, registered under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act hereinafter) at Police Station, Nurpur, District Kangra.

2(i) As per the status report, a police party was on routine patrolling and traffic checking duty at Jassur near BSNL exchange on 1.9.2020. At around 5:00 P.M., it stopped a Bolero vehicle No. HP-36C-6800 for checking. While the vehicle was being checked, the patrolling party noticed a person coming on foot from Matholi side and going towards Jassur. Seeing the patrolling party, this person became noticeably perplexed, turned back, while doing so he took out something from his trouser pocket and threw it on the road side. Getting suspicious, the patrolling party personnel nabbed the person. The person disclosed his identity and address. The packet thrown by him was retrieved and checked. It was found to be containing light brown coloured substance, which the drug deduction kit ascertained as heroin. The substance weighed 6.38 grams on digital weighing machine carried by the patrolling party. The procedure in accordance with law was followed during the checking, recovery and all the codel formalities were completed. The recovery of contraband led to registration of the FIR. The petitioner was arrested on 1.9.2020.

2(ii) According to the status report, the petitioner was earlier also involved in FIR No. 292/2018, registered under Sections 21 and 29 of NDPS Act, at Police Station, Nurpur on 1.10.2018. In this FIR, the petitioner was co-accused along with one Mahabir Singh for possessing 5.82 grams of heroin. The FIR statedly is pending consideration before the learned Additional Sessions Judge, Dharamshala-I, District Kangra.

2(iii) In the instant FIR, challan has been presented before the competent court on 20.10.2020.

A previous bail application moved by the petitioner has been rejected by the learned trial Court on 28.9.2020.

Learned Counsel for the petitioner submits that the petitioner has not committed the offence alleged against him and has been falsely implicated in the FIR. Learned Counsel further submitted that the investigation in the instant FIR is complete, therefore, petitioner should be released on bail and that petitioner has undertaken to abide by all the terms and conditions which may be imposed upon him in case of enlargement on bail. He has also stated that previously also the petitioner was involved in FIR No. 292/2018 registered against him on 1.10.2018 for possessing 5.82 grams of heroin, however, the quantity of heroin allegedly recovered from the petitioner in that case was nearing small quantity notified under the Act. In the instant case also, the quantity of contraband allegedly recovered from the petitioner is nearer to the small quantity notified under the Act. Without admission of guilt, he submitted that petitioner be given one chance to improve his conduct.

Whereas learned Additional Advocate General submitted that in case Court is inclined to grant bail to the petitioner, same be made subject to stringent conditions considering the fact that previously also the petitioner was involved in similar offence under the NDPS Act.

The quantity of contraband heroin allegedly recovered from the petitioner in the instant FIR is 6.38 grams. This quantity, though, is above 5 grams notified as small quantity under the NDPS Act and technically falls in commonly known as intermediate category, however, the fact remains that the contraband recovered from the petitioner borders notified small quantity. Previous FIR registered against the petitioner and one other co-accused is also for alleged possession of contraband, weight of which is nearer to small quantity notified under the NDPS Act. Investigation in the case is complete and challan stand presented before the competent Court. Petitioner is in custody w.e.f. 1.9.2020. His further incarceration in custody will not yield any significant object in the facts and circumstances of the case. Petitioner is resident of village and Post Office, Nagawari, Tehsil Nurpur, District Kangra, therefore, his presence can be ensured during trial. Considering the fact that the petitioner was previously involved in similar offence, therefore, while allowing this bail petition, one stringent condition is being imposed upon the petitioner that in case in future he is found to be involved in any FIR under the NDPS Act, then instant bail is liable to be cancelled at the instance of investigating agency. Accordingly, the present bail petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bond of Rs. 50,000/- with one local surety in the like amount to the satisfaction of learned trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law.

(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii) . Petitioner will not leave India without prior permission of the Court.

(iv) . Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy Dasti.