Parveen Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is co-accused in FIR No.31 of 2020, dated 11.02.2020, under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act), registered at Police Station Sadar, Bilaspur, District Bilaspur (H.P.).

As per the status report:- the police party, while on Nakkabandi and Traffic Checking duty near 'Bamta rain shelter', on 11.02.2020, at around 03.20 p.m., signalled a Scooty bearing No.HP-24D-1835 coming from ITI Chowk to stop. This scooty had two riders, i.e. petitioner(driver) and one Afridi as pillion rider. Both were already involved in FIR No.6/2020, dated 05.01.2020, under Section 21 of the NDPS Act, registered at same Police Station Sadar, Bilaspur, District Bilaspur. On seeing the police party, the occupants of the Scooty appeared scared inturn raising suspicion in the minds of the police party. Whereafter, the persons present nearby were associated as independent witnesses by the police and the search of the scooty was carried out in accordance with law. From the Dicky of the scooty, 05.95 grams of heroin was recovered, leading to registration of instant FIR. Petitioner was arrested on 11.02.2020. The Challan in the FIR in question stands presented before the Competent Court on 08.04.2020.

2(ii). An earlier bail petition preferred by the petitioner has been rejected by learned Special Judge, Bilaspur, on 15.06.2020, by applying rigors of Section 37 of the NDPS Act.

Heard learned counsel for the parties and gone through the status report.

Learned counsel for the petitioner submitted that petitioner has been falsely implicated with the alleged offences and that he has not committed the crime alleged against him. He further argued that the quantity of heroin allegedly recovered from the petitioner is 05.95 grams, which is nearer to five grams notified as 'small' quantity under the NDPS Act, therefore, rigors of Section 37 of the NDPS Act will not be attracted in the instant case. This legal portion has not even been disputed by learned Additional Advocate General. However, he has opposed the grant of bail on the ground that the petitioner was earlier also involved in FIR No.6/2020, registered at Police Station Sadar, Bilaspur, District Bilaspur, on 05.01.2020, for the offence punishable under Section 21 of the NDPS Act, for his alleged possession of 01.11 gram of heroin. While granting bail to the petitioner in FIR No.6/2020, learned Special Judge, vide order dated 18.01.2020, had imposed a condition that 'bail petitioner shall not commit an offence similar to the present one and shall not indulge in similar activities.' He, therefore, contended that despite this condition, the petitioner has repeated the same offence, therefore, he should not be enlarged on bail.

4(i). It is undisputed fact that the quantity of contraband allegedly recovered from the petitioner in the instant case is 05.95 grams of heroin, which is nearer to the 'small' quantity of five grams notified under the NDPS Act, therefore, rigors of Section 37 of the Act will not be attracted in the case in hand.

4(ii). Though learned Special Judge, Bilaspur, vide order dated 18.01.2020, had granted the bail to the petitioner in FIR No.6/2020 with strict condition that he shall not commit similar offence and shall not indulge in similar activities, yet, the petitioner has again been arrayed as an accused in instant FIR No.31/2020 under Sections 21 & 29 of the NDPS Act, registered on 11.02.2020. This makes it evident that the petitioner is becoming habitual in committing offences under the NDPS Act. However, considering the fact that quantity of contraband allegedly recovered from him in FIR No.6/2020 was 1.11 grams & 5.95 grams in the instant FIR coupled with the maximum punishment of one year imposable for possession of 'small' quantity under Section 21 of the NDPS Act and the fact that the petitioner has already completed five months behind the bars, therefore, his further detention will not serve any fruitful purpose. Investigation of the case is complete and Challan stands presented in the Court of competent jurisdiction. The petitioner is permanent resident of Village Gwalmuthani, Tehsil Ghumarwin, District Bilaspur (H.P.), therefore, his presence can be secured in trial. One final opportunity is, therefore, granted to the petitioner to mend his ways with a strict condition that in case he is found to be involved in future in any FIR under NDPS Act, then present bail is liable to be cancelled and that fact will also be considered as a negative factor in his future bail application(s).

In view of the above, the instant petition is allowed. Accordingly, the bail petitioner is ordered to be released on bail, in FIR No.31/2020, dated 11.02.2020, under Sections 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985, registered at Police Station Sadar, Bilaspur, District Bilaspur (H.P.), subject to his furnishing personal bond in the sum of Rs.25,000/-, with one local surety in the like amount, to the satisfaction of learned trial Court having the jurisdiction over the Police Station concerned. The bail is granted subject to the following conditions:-

i). The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever;

ii). The petitioner shall not contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever;

iii) . The petitioner shall not leave India without prior permission of the Court;

iv) . The 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). The petitioner shall regularly attend the trial on each and every date of hearing and if prevented by any reason to do so, shall seek exemption from personal appearance by filing appropriate application;

vi). The petitioner shall inform the Station House Officer of the Police Station concerned about his place of residence during bail and trail. 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; and

vii). It is made clear that in case the 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 and that fact will also be considered as a negative factor in future bail application(s) of the petitioner.

It is clarified that the observations made above are only for the purpose of adjudication of the present bail petition and learned trial Court shall not be influenced by any of these observations while deciding the case on merits. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches any of the conditions of bail.

The petition stands disposed of accordingly, so also pending miscellaneous application(s), if any.

Authenticated copy of this order be supplied to learned counsel for the parties by the Court Master.