Deepak Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Through this successive third bail petition, prayer has been made for grant of regular bail in FIR No. 151/2019, dated 21.11.2019, registered at Police Station, Dharampur, District Solan, H.P. under Section 21 of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act').

As per the status report, a police party while patrolling Kumarhatti-Dharampur road on 20.11.2019 at around 12:35 A.M. noticed a person (later on identified as petitioner) coming on foot with a bag on his right shoulder. On the query of the police personnel, instead of disclosing his address, identity and the reasons for roaming during night hours, the petitioner abruptly turned and started running towards Subathu. He was apprehended and nabbed by the police officials. Since his behaviour was found suspicious, therefore, it was thought fit to carry out search of his bag. Independent witnesses could not be associated during search, which was carried out in presence of police officials. The search led to recovery of 14.46 grams of Heroine from the bag of the petitioner. Accordingly, instant FIR was registered against the petitioner and he was arrested on 21.11.2019.

Previous bail petitions preferred by the petitioner were not allowed as he was found to have repeated the offence under the NDPS Act while on bail in FIR No. 90 of 2018 dated 10.12.2018 registered against him under Section 22 of NDPS Act in Police Station, Kasauli. Bail in FIR No. 90/2018 was granted to the petitioner by learned Additional Chief Judicial Magistrate, Kasauli on the condition that he shall not commit any similar offence in future. While rejecting petitioner's earlier bail application in the instant FIR vide order dated 20.2.2020 it was observed that dismissal of the bail petition will not come in his way of filing a subsequent bail petition after the submission of police report under Section 173 Cr.P.C.

Learned Counsel for the petitioner submits that challan in the instant case stands presented before the competent Court of jurisdiction and is pending for consideration of charge w.e.f. 17.3.2020. The matter had subsequently been listed before the competent Court on 30.4.2020, 15.6.2020, 4.8.2020 and 26.9.2020. Learned Counsel has further submitted that petitioner will abide by all the conditions which may be imposed upon him in case of enlargement on bail and he will make a sincere effort to improve himself and will not involve himself in any activity/offence under the NDPS Act.

Learned Additional Advocate General has not disputed the fact that investigation in the case arising out from the FIR is complete and the challan stands presented before the Court of competent jurisdiction. He further submitted that in case the Court is inclined to grant bail to the petitioner, then the same be made subject to stringent conditions to ensure that petitioner does not repeat the offence.

The quantity of contraband Heroine recovered from the petitioner in the instant FIR is 14.46 grams, which though falls in commonly known as intermediate quantity but is nearer to the notified small quantity. Therefore, rigors of Section 37 of NDPS Act are not attracted to the case. In the earlier FIR No. 90/2018 registered against him on 10.12.2018 also small quantity of contraband was allegedly recovered from him. Having violated the conditions of bail granted to him in FIR No. 90/2018, the bail of the petitioner in the instant FIR was declined on previous occasions and he was granted opportunity to file subsequent bail petition after the filing of police report under Section 173 Cr.P.C. For his fault, the petitioner has remained confined to prison since 21.11.2019. He has already completed more than 11 months in custody. Bail in the instant FIR is being granted to the petitioner by way of final opportunity to improve and mend his ways with clear rider that in case in future he is found involved in any offence under the NDPS Act, then instant bail will be liable to be cancelled. He is resident of Village Dharampur, P.O. Dharampur, Tehsil Kasauli, District Solan, H.P., therefore, his presence can be ensured during trial. Accordingly, the present bail petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bond of Rs. 25,000/- 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 the petitioner is arraigned as an accused in future, in any FIR, more particularly under the NDPS Act, then this 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. Learned trial Court shall decide the matter without being influenced by above observations.

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