Mangat Ram vs State of H.P.

Dharam Chand Chaudhary, J.—Petitioner has been arrested on 18.1.2014 by the Police of Police Station, Nerwa, in a case registered against him under Sections 21 & 22 of the Narcotic Drugs and Psychotropic Substances Act vide FIR No. 52/13. Presently he is in custody.

The application for the grant of bail, the accused-petitioner filed previously in the Sessions Court stands dismissed and the application registered as Cr. MP(M) No. 200 of 2014 filed in this Court was ordered to be dismissed as withdrawn vide order dated 4.3.2014 annexed to this petition.

The prayer for grant of bail has been made on the ground that the accused-petitioner has not committed any offence and he has been falsely implicated and also that he having been diagnosed as HIV-positive need proper medical care and emotional support. Learned counsel further submits that the quantity of narcotic drugs allegedly recovered from him being slightly greater than small quantity and lesser than commercial quantity, the rigor of Section 37 of the Act, is not attracted in the present case.

The record reveals that a Maruti Car No. UP07E-4274 was intercepted by the Police of Police Station, Nerwa at Bathal on 26.11.2013 around 11.00 p.m. On being signaled the car, it was stopped on the side of the road and the accused-petitioner, who was identified in the light of vehicle and on its wheel, opened the door and ran away in valley side. The search of the car was conducted and 150 bottles of Syrup ''Rexcof'' were recovered therefrom. The Drug Inspector was called to the spot and the investigation conducted. The contraband recovered from the car was taken into possession.

On getting the sample analyzed from Forensic Science Laboratory, in a 100 ml. bottle of Rexcof, the codeine a narcotic drug to the extent of 10 ml. was found present. Therefore, total quantity of codeine in the bottles allegedly recovered from the possession of the accused comes to 29-30 grams approximately. In terms of the notification issued by the Central Government in exercise of the powers vested in it under clause (VII-A) & (XXIII-A) of Section 2 of the Act, in the case of drug namely codeine small quantity is 10 grams, whereas, commercial quantity is 1 kg and above. The quantity of codeine in the bottles of Rexcof recovered from the accused-petitioner being 29-30 grams is slightly little greater than small quantity, however, lesser than commercial quantity. The rigor of Section 37 of the Act, therefore, is not attracted in the present case.

True it is that in view of a similar case registered against the accused petitioner previously vide FIR No. 36/2011, in Police Station, Nerwa, whereas another u/s 306 IPC vide FIR No. 181/13, in Police Station, Boileauganj, he could have not been admitted on bail with such past criminal history in his credit, however, the factum of he having been diagnosed as HIV-positive, a disease not curable, weighs in my mind to admit him on bail. Although, he is under treatment and every care and caution is being taken by the Jail Authorities in the matter of providing him better medical facilities. Dr. Ankur, Medical Officer, posted in Model Central Jail, Kanda when appeared in this Court on 16.4.2014 has stated from the record he produced on that day about the treatment and diet etc., being provided to him in the Jail. This Court, however, feels that when he is suffering from such a serious ailment, emotional support from the members of his family, more particularly his parents and children as his wife is stated to be not living with him, is required. Of course, the offence, he 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, will be convicted and sentenced, in accordance with law.

Above-all Challan against the accused-petitioner stands filed and even charge has also been framed. He is an ex-serviceman and local resident of District Shimla. Therefore, there is no possibility of his fleeing away from justice or non-availability for the purpose of trial. Therefore, in the given facts and circumstances, more particularly the ailment from which he is suffering and also the quantity of narcotic drugs recovered from him, the accused-petitioner deserves to be admitted on bail. This application is accordingly allowed and it is ordered that the accused-petitioner, who has been arrested in connection with the case registered against him vide FIR No. 52/13 in Police Station, Nerwa, District Shimla shall be released on bail, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- (rupees one lakh) with one surety in the like amount to the satisfaction of the learned Judicial Magistrate 1st Class, Chopal. The accused-petitioner shall further abide by the following conditions:-

That he;

a. shall 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. shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. shall 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. shall 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.