Khekh Ram vs State Of Himachal Pradesh

Anoop Chitkara, J

For possessing 1 k.g. of Charas, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 110 of 2018, dated 27.7.2018, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station Nagrota Bagwan, District Kangra, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.

While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to have telephonic instructions in the matter from the concerned Police Station, and to procure status report immediately, either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number.

Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to Mr. Gobind Korla, Advocate, learned Counsel for the petitioner on his WhatsApp number.

I have read the status report(s) and heard counsel for the parties through video conference.

Prior to the present bail petition, the petitioner had filed bail petition under Section 439 CrPC, before learned Special Judge-I, Kangra at Dharamshala, Distt. Kangra, HP. However, vide order dated 29.10.2018, the Court had dismissed the same for the reason that petitioner Khekh Ram has three cases registered against him under the ND&PS Act bearing FIR Nos. 395 of 2009, 120 of 2011 and 06 of 2013, in Police Station Kullu, establishing that he is habitual offender and his release on bail would not be in the large interest of justice, as he could repeat the similar offence and certainly his release on bail would give wrong signal to the society.

FACTS

The gist of the First Information Report and the investigation is that on 27. 7.2018, Police Party headed by the Inspector of Police Station Nagrota Bagwan, was present alongwith other police officials on National Highway No. 154, opposite Police Chowki, Nagrota Bagwan. The police officials were conducting traffic checking and at that time at around 5.15 a.m., one jeep bearing No. HP66-4341 came. The police signaled the said jeep to stop on which it halted and police noticed that it was carrying vegetables. In the cabin of the jeep apart from its driver one another person was sitting. The police officials asked the driver to get the papers of the vehicle checked. The moment the driver started coming out with the file of the documents, then in the meantime, the other person took a bag in his hand, opened the door of the jeep and started running towards the opposite direction. Since it was dark, the said person fell down in a drain, as a result of which he received injuries on his person. Because of the conduct of the said person, the police became apprehensive that he is carrying some contraband. On inquiry, the said person revealed his name as Khekh Ram, the petitioner herein.

The police officials asked the petitioner the reason for his running away to which he could not give any satisfactory reply. After this the Inspector checked the bag which the petitioner was carrying and on opening it found charas in it. After that the Inspector sent one Constable to bring the weighing scale and when police weighed the same on the scale it measured one kilogram. Subsequently, the police party also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner.

During investigation, the police also sent the contraband for chemical analysis to State Forensic Science Laboratory, Junga, which opined the exhibit as extract of cannabis and sample of charas.

PREVIOUS CRIMINAL HISTORY

As per the status report the following cases are registered against the pe-titioner:-

(i) Case FIR No. 395 of 2009, under the ND&PS Act, Police Station Kullu, HP, wherein he stands acquitted by the Apex Court.

(ii) Case FIR No. 120 of 2011, under the ND&PS Act, Police Station Kullu, HP; and

(iii) Case FIR No. 06 of 2013, under the ND&PS Act, Police Station Kullu, HP.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. He further states that petitioner has to shoulder responsibility of his family and also submitted that his bail petition be considered on humanitarian grounds in view of the spread of the Covid-19 pandemic.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.

Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.

The following aspects are relevant to decide the present bail petition:

(a) As per the FIR, the substance involved is Charas, mentioned at Sr. No. 23 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, wherein the small quantity is lesser than 100 grams, whereas commercial quantity if greater than 1 k.g.

(b) The quantity of drug involved is less than Commercial Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.

(c) The point that 1 k.g. charas is not a commercial quantity is no more res integra in view of the pronouncement of a larger Bench of this Court in Ratto vs. State of Himachal Pradesh, 2004(1) R.C.R. (Criminal) 501, wherein the Court holds as under:

"1. This matter has been referred on the following questions: -

"Whether 1 kg. Cannabis (Charas) will be commercial quantity in the face of Section 2(vii-a) of the Act, 1985, as has been held in the aforesaid two decisions of this court?"

In view of the aforesaid discussion, in our view, decisions of this Court in Mathew Andrews British National v. State of H.P., Cr. M.P. (M) No. 1492 of 2001; State v. Munshi Ram, Criminal Revision No. 140 of 2000 and Sarvjeet Singh v. State, Cr. M.P.(M) No. 1088 of 2002 (so far dealing with "commercial quantity" while cancelling the bail) do not lay the correct law, therefore, these are overruled. At the same time, while answering this reference, it is held that in order to be the "commercial quantity" as defined in Section 2(viia) of the Narcotic Drugs and Psychotropic Substances Act, 1985 as amended by Central Act of 2001, it has always to be more than/greater than/bigger than on kg." (d) In Sami Ullaha vs. Superintendent narcotic control Bureau, (2008) 16 SCC 471, Supreme Court holds, "The quantity, thus, alleged to have been recovered from the co-accused persons could be said to be intermediate quantity and, thus, the rigours of the provisions of Section 37 of the Act relating to grant of bail may not be justified." (e) Although there is criminal history of the bail petitioner and on this ground previously the Court below had rejected the bail application of the petitioner. But keeping in view the current Covid-19 pandemic, the petitioner has come up again before this Court on the grounds that his family is facing extreme financial difficulty and the family is extremely concerned about each other. Without this case being cited as a precedent, keeping in view the peculiar circumstances coupled with the fact that the charas recovered from the petitioner was 1 k.g., and consequently the quantity involved in this case is not a commercial quantity, this Court is inclined to afford last opportunity to the Petitioner to mend his ways, making it very clear that in case, the petitioner repeats the offence under NDPS Act, irrespective of the quantity, be it small, then this bail shall automatically stand cancelled and it shall be open for the Investigating Officer to seek arrest warrants from the concerned Court. It shall also be a factor for future bail applications of the petitioner.

(f) The material aspect of the investigation is complete.

(g) The petitioner is in judicial custody since 27.7.2018.

(h) The petitioner is a permanent resident of address mentioned in the memo of parties i.e. Khekh Ram son of Sh. Chuhru Ram, resident of Village Karmang, Post Office Salang, Tehsil and Police Station Sadar Kullu, Distt. Kullu, HP, therefore, his presence can always be secured.

(i) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity to secure presence during trial.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order:

(a) The petitioner shall furnish personal bond in the sum of Rs. 1,00,000/- (rupees one lac only) with one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered.

(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437 - A of the CrPC.

(c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc.

(d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever.

(e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).

(f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.

(g) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court.

(h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.

(i) The petitioner shall attend the trial on each date, unless exempted.

(j) In case of non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

(k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.

(l) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity or if he commits any offence where the sentence prescribed is seven years or more, then this bail order shall stand cancelled automatically and the State shall file application for cancellation of the bails in FIR No. 120 of 2011 and FIR No. 06 of 2013, both registered at Police Station Sadar Kullu, Distt. Kullu, HP.

(m) The petitioner shall surrender all firearms along with ammunition, if any, and the arms license to the concerned authority within 30 days from today.

(n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.

(o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail.

In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be.

The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.

The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the aforesaid terms.

The Court attesting the bail bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, etc., Pan Card and Passport if available, on the reverse page of the bonds. The petitioner shall also furnish details of personal bank account(s).

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation.

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition stands allowed in the terms mentioned above.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record.

The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.