Hardeep Thakur vs State Of Himachal Pradesh

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Virender Singh, J

Applicant-Hardeep Thakur has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for seeking, release on bail, during the pendency of trial, in case FIR No. 24/22, dated 13.4.2022, registered with Police Station Jubbal, District Shimla, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

According to the applicant, he is innocent and has been falsely implicated by the police in this case. The investigation against the accused is stated to be completed and nothing is to be recovered from him or at his instance. The trial against the applicant/accused will take sufficient longer time, as such, no fruitful purpose will be served by keeping him in judicial custody. The applicant has prayed that during the pendency of the trial, he may kindly be released on bail.

Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

Perusal of the record shows that the applicant/accused had earlier moved Cr.MP(M) No. 916 of 2022, titled Hardeep Thakur v. State of Himachal Pradesh before SB-VII, which was dismissed vide order dated 23.5.2022. Thereafter, the present bail application has been filed, which was initially listed before SB-VII and vide order dated 10.1.2023, following order was passed:

“Notice. Mr. Varun Chandel, learned Additional Advocate General, appears and waives service of notice on behalf of the respondent/State and seeks time to file status report. List on 27.01.2023 before learned Vacation Judge.”

As such, this application is being taken for consideration and decision by this Court.

When put on notice, the police filed the status report, disclosing therein that on the intervening night of 12.4.2022, the police party under the leadership of ASI Pardeep Kumar was on patrolling duty. At about 10:15pm, when they reached at Kuddu Barrier, where SI Chintamani, Incharge, PP Kuddu alongwith the other police officials met them, they had jointly put the picketing. At about 10:30pm, they noticed a car bearing registration No. UA-07D-5550 Maruti (coloured Grey), being driven by its driver reached there at the spot. The said vehicle was stopped for checking. Apart from the driver, one another person was found sitting in the vehicle. Driver was directed to show the requisite papers and reasons for travelling there, upon which, both the occupants of the vehicle, became perplexed and could not give the satisfactory answer nor they could show the documents of the vehicle, upon which, a suspicion was developed in the mind of the investigating officer. Consequently, he inquired the officials working at barrier, one has disclosed his name as Manish and the other one disclosed his name as Nikhil. In the presence of the above two persons, name of the driver of the vehicle was inquired. On inquiry, he has disclosed his name as Santosh, whereas, the other occupant disclosed his name as Anil Kumar. Thereafter, on the search of the vehicle, police noticed that accused Anil Kumar was having a black and grey coloured rucksack on his lap, upon which, words “The North Face” were written. When, the same was checked, five ball shaped substances were found wrapped in the yellow tape. On inquiry from Anil Kumar, the same was found to be Chitta/Heroin. Thereafter, Investigating Officer directed the HHC Jagdeep Singh to bring Drug Detection Kit from Police Station Jubbal. At about 12:30AM, the said HHC came back with the DD Kit. When the substance, so found, was checked on DD Kit, same was found to be Chitta/heroin, which, on weighment, was found to be of 250 grams. The contraband, so recovered, was taken into possession and sealed. Other codal formalities were completed on the spot.

Accused Anil Kumar was arrested on 13.4.2022 at 6:40pm, whereas, accused Santosh Kumar was arrested on 13.4.2022 at 12:20 am. Both the said accused were, thereafter, sent to CH Jubbal for their medico legal examination and were produced before the court, wherefrom, both of them were remanded to the police custody and thereafter proceedings under Section 52(A) of the NDPS Act, were conducted before the JMFC, Jubbal.

During investigation, accused Anil Kumar has disclosed that he has brought the Chitta/Heroin from Delhi and same was to be delivered to person namely Hardeep @ Lucky (applicant) at Rohru, who had paid a sum of Rs.1,55,000/- to him by way of bank transaction dated 11.4.2022 in SBI bank account No. 00000039376965521, upon which the details of the bank account of Anil Kumar were obtained. This fact was then verified. Thereafter, the CDRs of mobile phone of Anil Kumar i.e. 8580813004 with mobile phone of Hardeep alias Lucky i.e. 8580508124 were analyzed and it was found that there were frequent talks between them on 11.4.2022 and 12.4.2022, upon which, the involvement of the applicant /Hardeep alias Lucky was found. He was then associated. It was found that in the bank account of co-accused Anil Kumar, applicant/Hardeep alias Lucky, had transferred Rs.1,55,000/-. Consequently, applicant was arrested on 14.4.2022 at 12:30 in the midnight. The I.O. has also completed the investigation. After the completion of the investigation, the challan has been filed on 6.7.2022, which is stated to be now fixed for 24/25.3..2023 for the prosecution evidence.

As per the status report, a case under Sections 379, 34 of IPC read with Sections 41 and 42 of Indian Forest Act has been found to be registered against the applicant/Hardeep vide FIR No.65/05 with PS Rohru on 2.4.2005. On the basis of above facts, the investigation agency has prayed that the application of the applicant may kindly be dismissed.

The contraband, it has been recovered from the possession of the accused persons in this case is 250 grams. Although, same has not been recovered from the conscious possession of the accused, but, the applicant has been arrested, in this case, under the provisions of Section 29 of the NDPS Act. It is no longer res-integra that the possession does not mean the actual or physical possession, it can be constructive possession.

If the facts and circumstances of the present case are seen in light of the decision of the Hon’ble Apex Court in Union of India through Narcotics Control Bureau, Lucknow versus Md. Nawaz Khan, reported in (2021) 10 Supreme Court Cases 100, then the exclusive and conscious possession can be said to be of the applicant Hardeep, who has been arrested under the provisions of Section 29 of the NDPS Act. The relevant para 26 of the judgment is reproduced, as under:

“What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab (2010) 9 SCC 608, where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.”

Coming to the fact, which has been highlighted by the learned counsel appearing for the respondent-State that his earlier application, which has been rejected by the learned SB-VII, while deciding Cr.MP(M) No. 916 of 2022 is concerned, no doubt, the said Cr.MP(M) has been dismissed on the ground that the rigors of Section 37 of the Act are applicable and the applicant has been dis-entitled only on the ground.

In the police report, the Chitta/heroin weighing 250 grams is stated to have been recovered from the accused persons in this case. If the facts and circumstances of the present case are seen in the light of the Full Bench decision of this Court in case titled Ratto v. State of H.P., 2003 STPL 9939 HP , then it can be said that the contraband allegedly recovered from the possession of the accused persons in this case does not fall within the definition of the commercial quantity of contraband. Relevant paras No. 29 and 30 of the aforesaid judgment are reproduced as under:

We feel that there is no ambiguity in the language of Section 2 (viia), supra. As such, simple and literal meaning has to be given to the words “quantity greater than”, so as to hold what would be the commercial quantity.

As already noted there is hardly any ambiguity, muchless conflict between Section 2 (viia) and the notification as extracted herein-in-above for determination of what would be the commercial quantity. By virtue of powers conferred under sub-section (viia) of Section 2, Central Government is authorized to notify as to what would be the commercial quantity. Because the “Commercial Quantity” on a plain reading of its definition amongst other things has to be “……. Greater than the quantity specified by the Central Government by notification…..” Under 2001 Act notification supra was issued specifying the quantity for the purpose of Section 2 (viia) of the Act. A perusal of this notification indicates that quantity specified is one kilogram. Various columns of the notification extracted herein above have to be read in conjunction with the substantive provision of Section 2 (viia) of the Act. This also puts a harmonious construction on both, notification as well as Section 2 (viia). While determining the quantity under this Sub-section, it has to be greater than one Kg. There is hardly any doubt regarding either the words one kg. or the “commercial quantity” which has to be “greater than”, which in our considered view would always mean any quantity more than/bigger than/larger than one Kg. We are further of the view that this provision, and for that matter, notification admits of no other interpretation on its reading. Thus, it cannot be said that one Kg. would be commercial quantity for the purpose of Section 2 (viia), as added by 2001 Act.

In view of the above judgment, there is no hesitation for this Court to hold that contraband allegedly recovered from the possession of the applicant, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.

The accused is in the judicial custody, which fact demonstrates that his custodial interrogation is no longer required by the investigating agency. Even otherwise, presumption of innocence is still available to the applicant in this case, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment has been prohibited under the law. Although, in the status report, it has been mentioned that the case is now fixed for prosecution evidence on 24/25/3/2023, but, from this fact, it cannot be concluded that the chances of the conclusion of the trial in near future are bright and as such, no useful purpose would be served by keeping him in judicial custody.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 24/22, dated 13.4.2022, registered with Police Station Jubbal, District Shimla, H.P., under Sections 21 and 29 of the NDPS Act, on his furnishing personal bail bond, in the sum of Rs.50,000/- , with one surety of the like amount, to the satisfaction of learned CJM/JMFC/ Duty Magistrate, Shimla. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.

Applicant may produce a downloaded copy of the order, passed by the Court, before the learned CJM/JMFC/ Duty Magistrate, Shimla, and the said Court shall not insist for the certified copy of order, rather, passing of order can be verified from the web-page of this Court.