Karan Adhiraj Tanta vs State of H.P.

Petitioner is an accused in FIR No.35/17 registered against him under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, in Police Station, New Shimla.

As per the allegations against the accused petitioner, he was one of the occupants of Santro Car bearing registration No.HP63-1711 nabbed by the Police near Dyerton Estate, Chopal Sadan at National Highway No.22, Shimla around 9.30 p.m. on 28.02.2017. On search of the car conducted in the presence of independent witnesses, 58 bottles, 100 ml. each, of ''Corex'' a cough syrup, which contains narcotic drug codeine phosphate, were recovered. The accused-petitioner was arrested in this case on 1.3.2017 and is presently in judicial custody.

It is seen that the petitioner a young man of 23 years of age is presently pursuing his BBA course from Bahara University, Shimla Hills, Waknaghat, District Solan, H.P. The investigation in this case is complete. No recovery is left to be made either from the accused petitioner or his co-accused. The report from Forensic Science Laboratory stands received. The final report has also been prepared and the same, according to learned Deputy Advocate General, is likely to be presented in the Court shortly.

It is seen from the report of chemical examiner that the quantity of codeine phosphate, a narcotic drug, in 58 bottles of 100 ml. each allegedly recovered from the possession of the accusedpetitioner comes to 11.66 grams.

True it is that in State of Himachal Pradesh versus Mehboob Khan 2013(3) Him.L.R. (FB) 1834, a larger Bench of this Court, in a case of recovery of charas has held that presence of tetrahydrocannabinol and cystolithic hair in a sample of charas reveals that same contains resin contents and as such, sufficient to hold that the sample is of charas. The resin obtained from the cannabis plants may be in ''crude'' or ''purified'' form and charas is hand made drug made from the extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the form of cannabis is to be considered as a contraband article. However, in the case in hand, whether the remaining contents of ''Corex'' have also to be treated as codeine phosphate or not, need further consideration and as such it is not deemed appropriate to go to this aspect of the matter at this stage and rather the same is left open to be considered at an appropriate stage during the course of trial. The facts, however, remain that the present is a case of recovery of narcotic drug i.e. codeine phosphate 11.66 grams, which is little greater than small quantity, however, lesser than commercial quantity. Therefore, the rigors of Section 37 of the Act are not attracted in the case in hand.

True it is that the offence, the accused petitioner, allegedly committed, is not only against an individual, but against the society as a whole, however, he is yet to be tried and if found to have committed the alleged offence to be dealt with in accordance with law. He is a student and seems to be in the habit of taking drugs including corex, therefore, being soft target of drug peddler seems to have purchased the same from someone-else. Therefore, prima facie he seems to be not dealing with the business of narcotic drugs or psychotropic substances. He is permanent resident of District Shimla. Therefore, having roots in the society, there is no likelihood of his fleeing away from justice, hence deserves to be admitted on bail.

In view of the above, this petition is allowed and it is ordered that the accused-petitioner, who has been arrested by the police of Police Station, New Shimla, in connection with FIR No.35/17 dated 28.02.2017, shall be released on bail, subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of learned Chief Judicial Magistrate/Judicial Magistrate, Shimla. He shall further abide by the following conditions:- That he shall;

(a) join the interrogation as and when called upon to do so and regularly attend the trial Court on each and every date of hearing. If prevented by any reason to do so, shall seek exemption from appearance by filing appropriate application;

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

(c) not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Investigating Officer;

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

It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him; the Investigating Agency shall be free to move this Court for cancellation of the bail.

The observations hereinabove shall remain confined to the disposal of this petition and have no bearing on the merits of the case. The application stands disposed of. Copy Dasti.