Kunal Kaloshia vs State Of Himachal Pradesh

Anoop Chitkara, J

For possessing 9.70 grams of heroin, the petitioner, who is under arrest, on being arraigned as an accused in FIR Number 191 of 2019, dated 10.09.2019, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (herein after referred as the "NDPS Act"), in the file of Police Station Sadar Solan, Distt. Solan, H.P., disclosing non-bailable offences, has come up before this Court under Section 439 Cr.PC, seeking regular bail.

HC- Hitender Kumar, Investigating Offier, Police Station Sadar, Solan, District Solan, H.P. is present along with records. Status report stands filed in the Court and the same is taken on record. Police file perused to the extent it was necessary for deciding the present petition, and the same stands returned to the police official. I have heard Mr. M.A. Khan, learned Senior Counsel duly assisted by Ms. Hem Kanta Kaushal, learned Counsel, for the petitioner and Mr. Nand Lal Thakur, learned Additional Advocate General for the respondent/State.

FACTS

The gist of the First Information Report and the investigation is as follows:

The Special Investigating Unit was conducting patrolling at Chambaghat on 9.9.2019 at 8.30 pm. At that time the Investigating Officer received a secret information that the petitioner is a drug trafficker and sells the same at his resident. The informant further told the Investigating Officer that if raid is conducted at that time, then contraband could be recovered. On receiving this information the Investigating Officer associated two independent witnesses of the locality and and then conducted search of the house of the petitioner who was found alone therein. In the drawing room of the house there was a cot and below the pillow of such cot there was a box of cigarette "Gold Flake" and within this box there was a polythene packet which contained a white coloured substance. The said substance was tested from the DD Kit which mentioned it as heroin. On weighment, the contraband was found to be 9.70 grams. The petitioner was arrested. Thereafter, the other procedural formalities were completed and the aforesaid F.I.R. came to be registered.

REASONING

Keeping in view the quantity of contraband, I am of the considered view that the judicial custody of the petitioner is not going to serve any purpose whatsoever and I am inclined to grant him bail on the following grounds:

(a) As per the FIR, the substance involved in is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances.

(b) The quantity of drug involved is 9.70 grams (heroin), which is less than Commercial Quantity but greater than Small 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 petitioner is in judicial custody since 10.09.2019.

(d) In the status report, there is no mention of previous criminal history of the bail petitioner.

(e) The investigation is complete.

(f) The petitioner is a permanent resident of the address mentioned in the memo of parties. Therefore, his presence can always be secured.

(g) In the status report it has been mentioned by the Investigating Officer that the petitioner is addicted to consume drugs. Therefore, prima facie, the contraband recovered was purchased not for trade but for self consumption because of his drug dependence.

(h) I am satisfied that no purpose will be served if the bail petitioner is sent to judicial custody.

(i) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. His custodial interrogation is not required at all.

In the result the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like amount, to the satisfaction of the learned Special Judge/Sessions Judge or learned Additional Sessions Judge, Solan, H.P. The learned counsel for the accused as well as the attesting person shall explain the conditions of this bail to the petitioner.

This Court is granting the bail subject to the conditions mentioned herein. 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:

a) The petitioner is directed to join the investigation as and when called by the investigating officer and the petitioner undertakes to appear before the investigating officer as and when directed to do so. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 a.m. and shall be let off before 5 pm.

b) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

c) The petitioner shall not hamper the investigation.

d) The petitioner undertakes not to threaten or browbeat the complainant or to use any pressure tactics.

e) The petitioner undertakes not to 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 from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

f) In case of the launching of the prosecution, the petitioner undertakes to attend the trial and to appear before the Court which issues the summons or warrants and shall furnish fresh bail bonds to the satisfaction of such Court.

g) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment for more than 3 years, and in case the bail petitioner is arraigned as an accused in any case under the provisions of the NDPS Act, irrespective of the quantity, be it small quantity, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR and it shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper.

h) The petitioner shall either sell or deposit all the fire arms alongwith ammunition and arms licences, if taken, before the concerned authorities within 30 days from today.

It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.

Respondent shall send a copy of this order to S.H.O. of the concerned Police Station.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.

Petition stands allowed in the aforesaid terms.