Kiran Kumar And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

These petitions arising out of the same FIR involving common facts, filed by co-accused, are being decided by this common order.

Petitioners have approached this Court, under Section 439 Criminal Procedure Code (in short ‘Cr.P.C.’), for granting them bail in case FIR No. 94 of 2021 dated 06.11.2021, registered under Sections 21 and 29 of Narcotic Drugs and Psychotropic Substances Act (hereinafter in short ‘NDPS Act’) and Sections 181 and 196 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V. Act’) in Police Station Shahpur, District Kangra, H.P.

Status Report stands filed. Record was also made available.

Brief facts, as per status report, are that on 6. 11.2021 at about 5.20 p.m., police party, which was on patrolling for detection of commission of offences near Chambi, had received a reliable information that Kiran Kumar and Gaurav Kumar (petitioners) are coming in a Swift Car bearing registration No.HP-06A-1098 owned and driven by Kiran Kumar alongwith some contraband. Information was reliable and there was possibility of concealment of evidence of contraband, therefore, report under Section 42(2) of NDPS Act was prepared and sent to Deputy Superintendent of Police, Headquarters through Constable Vijay Kumar and police party departed to Rait. On the way Kundan Kumar and Radha Krishan were associated as independent witnesses. At 7.20 p.m. car in reference came from Chambi side with two occupants including driver. When signal was given to stop, car driver had tried to flee by driving the vehicle on a link road going towards old Anganwari Centre. Vehicle was chased by the police and near Angarwari Centre, because of parked vehicle on the road, car driver had to stop the car and was subjected to inquiry. On inquiry, petitioners disclosed their identity. In presence of independent witnesses, vehicle was checked wherefrom, in the Dashboard, a transparent polythene envelope containing white powder, was recovered. On checking and on the basis of experience, it was detected as Chitta. On weighing, it was found 5.93 grams. Recovered contraband was taken into possession and seized following the procedure and Rukka was sent to the Police Station for registration of FIR. After registration of FIR, for commission of offences under NDPS Act, petitioners were arrested at 1.30 a.m. and 1.40 a.m. respectively, on 07.11.2021. After remaining in police custody for two days, petitioners are in judicial custody since 09.11.2021.

As per status report, two cases each have been found registered against the petitioners under NDPS Act in the years 2018, 2019 and 2020. One case of 2018 is common, wherein both the petitioners are accused.

As per prosecution, Chitta was purchased by petitioner-Gaurav Kumar in the Pathankot market from unknown 3-4 boys for `7000/- / `8000/-. At that time, petitioner Kiran Kumar was purchasing toys for his children and getting bicycle repaired. Petitoner-Gaurav Kumar had disclosed about purchase of Chitta to petitioner-Kiran Kumar, whereafter, both of them consumed some Chitta and remaining Chitta was kept by them in the Dashboard for selling it to others in order to compensate their expenses. Kiran Kumar had paid his share of cost of contraband to Gaurav Kumar.

Learned Additional Advocate General has submitted that petitioners have committed a heinous crime, which affects not only individual but society at large by ruining the youth and families and, therefore, prayer for rejection of bail applications has been made by stating that earlier also petitioners have been found involved in commission of similar offences.

Learned counsel for the petitioners has submitted that contraband alleged to be recovered from the petitioners is slightly more than small quantity and in previous cases registered against the petitioners also, recovered Chitta/ contraband was of either small quantity or nearer to small quantity and in present case also, as per State Forensic Science Laboratory (SFSL) report, recovered Chitta was 5.570 grams and at that time also, being addict, petitioners were compelled to arrange drug for personal consumption and the said fact is evident from the fact that in those cases recovered contraband was either of small quantity or nearer to the small quantity of the drug. It has further been contended, as is also evident from the status report, that petitioners are addict of consuming Chitta and, therefore, they are not suppliers or paddlers, rather are persons, who require rehabilitation for de-addiction. It has further been submitted that petitioners are 31-32 years old and now their parents intend to rehabilitate them by providing counselling and treatment to them in an appropriate Rehabilitation Centre and further that both of them are behind the bars since last about five months and keeping in view the quantum of contraband alleged to be recovered from them and the fact that petitioners are not paddlers or suppliers, but drug addict, they deserve to be enlarged on bail by giving them one opportunity to reform and rehabilitate.

Learned counsel for the petitioners has also submitted that in view of recovery of quantum of alleged contraband in present case, rigors of Section 37 of NDPS Act are not applicable and keeping in view the age and their detention, a lenient view deserves to be taken for enlarging them on bail for sending them for treatment for their de-addiction.

It has further been submitted that petitioners are ready to abide by any condition imposed by the Court at the time of enlarging them on bail and to furnish appropriate bonds as directed.

Considering all facts and circumstances, including quantum of contraband recovered from the petitioners in commission of offence, period of detention, but without commenting on merits of the rival contention of parties and taking note of all principles and factors relevant to be considered at the time of deciding bail applications with reference to aforesaid facts and circumstances placed before me, and submissions made by learned counsel for the petitioners as well as learned Additional Advocate General, petitioners can be enlarged on bail.

Accordingly, present petitions are allowed and petitioners are directed to be enlarged on bail, subject to their furnishing personal bonds each in the sum of `50,000/- with one surety each in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioners/accused at the time of trial:-

(i) That the petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioners shall not directly or indirectly 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 Court or to any police officer or tamper with the evidence.

They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that in case petitioners indulge in repetition of similar offence(s) then, their bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioners shall not leave the territory of India without prior permission; and

(ix) that the petitioners shall inform the Police/Court their contact numbers and shall keep on informing about change in addresses and contact numbers, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioners as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioners as it may deem necessary in the interest of justice.

In case the petitioners violate any condition imposed upon them, their bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in these petitions hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petitions are disposed of in aforesaid terms.

Copy dasti.

Petitioners are permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.