Dheeraj Soni vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

By way of the present petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of regular bail, in F.I.R. No.42/2020, dated 07.03.2020, under Sections 20, 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act), registered at Police Station, Barmana, District Bilaspur (H.P.).

Heard learned counsel for the parties through Video Conference and gone through the status report.

The facts of the case as per the status report are that:-

3(i). A police party, while on patrolling duty on 07.03.2020 at Jabal Bazar under Police Station Barmana, was checking the vehicles for narcotic and psychotropic substances. At around 06.45 p.m., while the police party was questioning one Shri Naveen Kumar, the occupant of vehicle bearing No.HP-32A-1436, another vehicle bearing No.HP-24C - 2637 came in fast speed from Rani-Kotla side. It did not stop despite being signalled to stop and collided with the earlier stopped vehicle No.HP-32A-1436. Occupants of the vehicle No.HP-24C-2637 disclosed their names as Dheeraj Soni-petitioner (driver) and one Shri Ansh Rasgotra. Search of this vehicle led to recovery of 20.79 grams of cannabis and 05.60 grams of heroin kept underneath the footrest mat of the driver's seat. The procedure in accordance with law was followed and all codal formalities were completed, leading to registration of FIR in question.

3(ii). Both the occupants of the vehicle No.HP-24C-2637, were arrested on 07.03.2020. An earlier bail application preferred by the petitioner was dismissed by learned Special Judge, Bilaspur, on 18.03.2020, with reference to Section 37 of the NDPS Act and also by noticing one previous FIR bearing No.89/2018, registered against him under Sections 22 & 29 of the NDPS Act at Police Station Sadar, Bilaspur, District Bilaspur (H.P.)., whereas the bail application of co-accused Shri Ansh Rasgotra was allowed on 12.03.2020. The Challan has been presented before learned trial Court in the FIR in question against the petitioner and co-accused Ansh Rasgotra on 12.05.2020.

Learned counsel for the petitioner submitted that petitioner is behind the bars w.e.f. 07.03.2020 on account of alleged recovery of 20.79 grams of cannabis and 05.60 grams of heroin kept underneath the footrest mat of the driver's seat of vehicle in question. Cannabis allegedly recovered from the vehicle in question was less than notified small quantity, whereas the heroin allegedly recovered from the car was slightly above the notified small quantity, therefore, rigors of Section 37 of the NDPS Act will not be attracted. He has further submitted that petitioner was not in conscious possession of the contraband allegedly recovered from the vehicle. He further submitted that FIR No.89 of 2018 was registered against the petitioner under Sections 22 & 29 of NDPS Act at Police Station Sadar, Bilaspur, District Bilaspur, for his alleged possession of less than one gram of heroin.

Learned Additional Advocate General has not disputed the fact that the quantity of cannabis and heroin, allegedly recovered from the vehicle occupied by the petitioner and Sh. Ansh Rasgotra, did not attract rigors of Section 37 of the NDPS Act, as the recovered cannabis was less than notified small quantity and recovered heroin was also slightly above the notified small quantity. He has, however, opposed the grant of bail on the ground that petitioner might influence and intimidate the prosecution witnesses and can again indulge in similar offence.

It is not in dispute that cannabis allegedly recovered from the vehicle in question was less than notified small quantity of 100 grams and the heroin allegedly recovered from the vehicle was closer to small quantity of 5 grams notified under the NDPS Act, respectively. Therefore, rigors of Section 37 of the NDPS Act will not be attracted in the instant case. Co-accused Shri Ansh Rasgotra, in same FIR, has admittedly been released on bail by learned Special Judge, Bilaspur, on 12.03.2020. Investigation in the case is complete and the Challan has also been presented before learned trial Court on 12.05.2020. Therefore, no fruitful purpose will be served in continued custody of the petitioner. Though there is one previous FIR registered against the petitioner under Sections 22 & 29 of the NDPS Act, however, the quantity involved therein is stated to be less than one gram of heroin, which is also less than small quantity notified under the Act. There is no allegation about petitioner's influencing the investigation, witnesses or tempering the prosecution evidence in respect of FIR No.89/2018. However, considering the fact that the petitioner had previously been involved in another case (FIR No.89/2018) under the NDPS Act, while granting instant bail, stringent conditions are being imposed upon him including a condition of cancellation of bail in this case, in case he is found to be involved in future in any FIR under NDPS Act and that fact will also be considered as a negative factor in future bail application(s) of the petitioner, if any.

In view of the above, the instant petition is allowed. Accordingly, the bail petitioner is ordered to be released on bail, in FIR No.42/2020, dated 07.03.2020, under Section 20, 21 & 29 the Narcotic Drugs & Psychotropic Substances Act, 1985, registered at Police Station, Barmana, District Bilaspur (H.P.), subject to his furnishing personal bond in the sum of Rs.50,000/- , with one local surety in the like amount, to the satisfaction of learned trial Court having the jurisdiction over the Police Station concerned. The bail is granted subject to the following conditions:-

i). The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever;

ii). The petitioner shall not contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever;

iii). The petitioner shall not leave India without prior permission of the Court;

iv). The 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). The petitioner shall regularly attend the trial on each and every date of hearing and if prevented by any reason to do so, shall seek exemption from personal appearance by filing appropriate application;

vi). The petitioner shall inform the Station House Officer of the Police Station concerned about his place of residence during bail and trail. 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; and

vii). It is made clear that in case the petitioner is arraigned as an accused in future, in any FIR under NDPS Act, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard and that fact will also be considered as a negative factor in future bail application(s) of the petitioner.

It is clarified that the observations made above are only for the purpose of adjudication of the present bail petition and learned trial Court shall not be influenced by any of these observations while deciding the case on merits. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches any of the conditions of bail.

The parties shall not insist upon for obtaining certified copy of this order and shall download the same from the website of High Court. However, the Registry is directed to send copy of this order to learned counsel for the parties through email subject to furnishing email addresses by them, if so required.

The petition stands disposed of accordingly, so also pending miscellaneous application(s), if any.