Mohd. Ishaq vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Instant petition has been preferred for grant of regular bail under Section 439 of Criminal Procedure Code.

Bail has been prayed for in relation to FIR No.88/2023, dated 20.03.2023, registered against the petitioner under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (The Act in short) at Police Station Balh, District Mandi, H.P.

Respondent has filed the status report and also produced the record.

According to the status report, while the police party was on patrol duty on 19.03.2023 at Malthehad road, it received a secret information regarding transportation of narcotics in a vehicle described in the information. The information was considered reliable. The respondent, therefore, complied with all codal formalities as per law. Nakka was laid at the place described in the information. The vehicle described in the information was identified and was ordered to stop. The vehicle had two occupants. Their names were co-accused Devesh Jamwal and Mohd. Esaak-the driver (bail petitioner). Inquiries were made from both the occupants of the vehicle. They could not satisfactorily respond to the queries. The search of the vehicle was carried out in accordance with law. 8.52 grams of heroin was recovered from an envelope kept in the dash board/mobile rack of the vehicle. The recovery led to the registration of FIR in question and arrest of the petitioner alongwith co-accused Devesh Jamwal.

During investigation, co-accused Devesh Jamwal is stated to have disclosed that he was in friendship with Mohd. Esaak (bail petitioner) for last about three years. He had become an addict of heroin in last about 6 months. He and Mohd. Esaak (petitioner) had gone to Ambala for purchasing the contraband in a vehicle belonging to father of co-accused Devesh Jamwal. The petitioner had procured the contraband from an unknown person, which was later recovered from the vehicle by the respondent.

Learned counsel for the petitioner submitted that the respondent has completed the investigation. The petitioner is in custody w.e.f. 20.03.2023. Further incarceration of the petitioner is not warranted. The petitioner has not committed the offence alleged against him in the FIR. Prayer was made for enlarging the petitioner on bail on the ground that he would abide by all the conditions, which may be imposed upon him in case of grant of bail and that he will not influence the prosecution witnesses or tamper with the prosecution evidence in any manner.

Learned Deputy Advocate General, while opposing the bail petition, submitted that in case the Court is inclined to grant bail to the petitioner, then stringent conditions may be imposed upon him.

Petitioner is facing accusation of possessing heroin weighing 8.52 grams. The quantity of the contraband allegedly recovered from the possession of accused person falls in ‘intermediate quantity’, but is nearer to ‘small’ quantity notified under the Act. Therefore, rigors of Section 37 of the Act will not be applicable in the instant case. Prima facie, case of petitioner appears to be that of drug addiction. Instant bail petition moved by Sh. Rafiq Mohammad, father of the petitioner, is with the averments that the petitioner/accused-Mohd. Ishaq is a drug addict and is required to be sent to the rehabilitation centre, so that he is cured.

Status report reflects that the petitioner has a criminal history inasmuch as five FIRs were registered against him. However, the status report also mentions that in two of these FIRs registered under different sections of the Indian Penal Code (IPC), the petitioner has been acquitted. FIR Nos.79/2016 and 347/2022, registered against the petitioner in different police stations, are yet pending consideration. These FIRs are under different provisions of IPC. The fifth FIR, bearing No.6/2023, was registered against him under Section 21 of the NDPS Act at Police Station Balh, District Mandi. Learned counsel for the petitioner submitted that the said FIR pertains to alleged recovery of 7.07 grams of heroin. He further submitted that the petitioner has been granted regular bail in the aforesaid FIR vide order dated 27.1.2023 passed in Cr.MP(M) No.212 of 2023. The respondent has not moved any application for cancellation of the bail granted to the petitioner in FIR No.6 of 2023.

Taking into consideration the fact that the petitioner was arrested in the instant FIR on 20.03.2023 and by now has completed more than three months in custody, coupled with the fact that the respondent has filed final report in the Court of jurisdiction, further custody of the petitioner is not warranted. Considering all these aspects and also the fact that the petitioner is behind the bars w.e.f. 20.03.2023 and trial would take considerable time, no fruitful purpose would be served by keeping the bail petitioner behind the bars any further. The petitioner, aged 34 years is stated to be a local resident of Village Dugrain, P.O. Kanaid, Tehsil Sundernagar, District Mandi, Himachal Pradesh, therefore, his presence can be secured in the trial. To ensure that the petitioner does not indulge in similar activities again, a strict condition is being imposed that in case he is found involved in future in any FIR under the NDPS Act, then this bail is liable to be cancelled. Accordingly, the present petition is allowed. The petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.25,000/- with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:-

(i). Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully co-operate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law.

(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii). Petitioner will not leave India without prior permission of the Court.

(iv). Petitioner shall not 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/her from disclosing such facts to the Court or any Police Officer.

(v) . In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

(vii). It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.