Mousam Deen vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court seeking regular bail, under Section 439 of the Code of Criminal Procedure, in case FIR No. 86 of 2022, dated 12.6.2022, registered under Sections 20 and 29 of the of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) in Police Station Chowari, District Chamba, H.P.

Status report stands filed. Record has also been made available.

As per status report, on 12.6.2022, during checking of vehicles at Tunuhatti Barrier, at about 9.10 A.M., an HRTC bus, enroute Bhanjraru to Nagrota coming from Chamba side, was checked. During checking petitioner Mausam Deen was found in possession of a bag having 1.090 kilogram charas therein. The contraband was taken into possession and seized by following the procedure. Thereafter by sending rukka to the Police Station, FIR was registered and thereafter Mausam Deen was arrested.

Fresh Status report has been filed by the State with respect to blindness of the petitioner, stating therein that status of blindness of the accused is 90 per cent at present and it is same as has been reflected in disability certificate dated 10.2.2020, which has been placed on record along with the petition. .

Learned counsel for the petitioner submits that in case prosecution case is taken to be true as it is, even then recovered contraband in present case is 1.090 kilograms which is slightly more than minimum prescribed quantity of commercial quantity but is very nearer to the intermediate quantity and petitioner has no criminal history of his involvement in commission of offence under NDPS Act, and therefore he cannot be considered a habitual offender to attract the rigors of Section 37 of NDPS Act.

It has been further submitted that the petitioner was arrested on 12.6.2022 and since then, for about last 13 months, he is behind the bars and the Trial is still at the stage of consideration of charge. It has also been submitted that though case was listed before the learned Special Judge, Chamba on 10.7.2023 but on that day case could not be taken because, due to extremely bad weather, 10th July, 2023 was declared holiday.

It has been submitted by learned counsel for the petitioner that taking into consideration quantity of the recovered contraband which is nearer to the intermediate quantity and the period of detention and also status of blindness of the accused, he deserves to be enlarged on bail at this stage.

Learned Additional Advocate General has opposed grant of bail on the ground that commercial quantity of Charas has been recovered from the petitioner and offence committed by the petitioner is not only affecting the individual but also society at large, therefore, petitioner is not entitled for bail.

Taking into consideration the entire facts and circumstances, but without commenting on merits thereon, and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs. 1,50,000/- with one surety 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 assure the presence of petitioner/accused at the time of trial:-

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

(ii) that the petitioner 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. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

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

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

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

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

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

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, 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 petitioner 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 petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon him, his 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. 23 Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. Petition is disposed of in aforesaid terms.

Petitioner is permitted to produce/use 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.