Pawan Kumar And Ors vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioners are accused in FIR No.107/2020, dated 29.04.2020, registered at Police Station Sadar, Solan, District Solan, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Both the petitioners are in custody w.e.f. 29.04.2020. Hence, instant bail petitions have been preferred by them seeking regular bail under Section 439 of the Code of Criminal Procedure.

Heard learned counsel for the parties through video conference and gone through the status report filed by the respondent-State.

As per the status report, prosecution case against the petitioners is that:-

3(i).A Police Party while on patrolling duty on 29. 04.2020, near SIU Office, Solan at around 3:10 pm, received an information about two persons, namely Pawan Kumar and Manoj Kumar (bail petitioners) selling heroin in one room set occupied by them in a specific building near Upper Surya Vihar. The information was acted upon and building was inspected. But for one room set in question, all other rooms of the building were found locked. Ground floor of the building was under construction. One room set was found to be occupied by the bail petitioners. Search of the said one room set was carried out in accordance with law. Due to lockdown imposed on account of COVID-19 pandemic, independent witnesses could not be associated.

However, the procedure prescribed under the law was complied with. Search of the room led to recovery of contraband 'heroin', weighing 10.57 grams, which led to registration of FIR in question and arrest of the bail petitioners.

3(ii). During investigation, bail petitioner-Pawan Kumar disclosed that on 28.04.2020, he had gone to Kalka and had purchased the contraband from one Vishal. He however, expressed his ignorance about the whereabouts and mobile number of said Sh. Vishal. The other bail petitioner- Manoj Kumar allegedly disclosed during investigation that they wanted to take the contraband to their village as it was not available there because of enforcement of lockdown. The mobile call details of bail petitioner-Pawan Kumar disclosed that he was in Kalka on 28.04.2020 and had remained there till 12:38 pm on 29.05.2020 (sic 29.04.2020).

3(iii). Earlier bail applications preferred by the petitioners have been dismissed on 08.05.2020 by the learned Special Judge-III, Solan, District Solan, on the ground that allegation against the bail petitioners is that they had purchased heroin from one Vishal at Kalka, who has not been traced due to COVID-19 and further that the bail petitioners can tamper with the evidence and indulge in same transaction.

Learned Senior Counsel for the bail petitioners submitted that both the bail petitioners, aged 23 and 31 years, respectively, are residents of Tehsil Sangrah, District Sirmour. Manoj Kumar (petitioner in Cr.MP(M) No.627 of 2020) is suffering from Cholelithiasis (stones in gall bladder). He was examined at Primary Health Centre Haripurdhar, District Sirmour, on 10.04.2020 and 13. 04.2020. He was referred to Regional Hospital Solan, where he was examined on 14.04.2020. Ultrasound of his abdomen was conducted the same day and he was actually found to be suffering from Cholelithiasis. Medicines were prescribed and he was advised review in Out Patient Department. He was again examined on 16.04.2020 and was given prescription for further three weeks. Feeling severe pain, he again came to Solan on 28.04.2020 for his treatment and stayed in one room set in question belonging to one Sh. Abhishek. Pawan Kumar (petitioner in Cr.MP(M) No.626 of 2020) has also been falsely implicated. The contraband allegedly recovered by the Police was not from the conscious possession of the petitioners. Rather, it was recovered from a container kept in the kitchen containing rice. The room did not belong to the bail petitioners. They were only staying there. While making these submissions, learned Senior Counsel relied upon the medical record of Manoj Kumar (petitioner in Cr.MP(M) No.627 of 2020) appended alongwith Cr.MP(M) No.627 of 2020. It was also submitted that even after the arrest of the petitioners, Manoj Kumar (petitioner in Cr.MP(M) No.627 of 2020) was examined again by Doctor in Regional Hospital Solan on 30.04.2020. Under these circumstances, the case set up by the prosecution against the petitioners is false. The petitioners are not guilty of the offence alleged against them. Investigation of the case is complete. Learned Senior Counsel for the petitioners further submitted that the petitioners will abide by all the conditions imposed upon them by this Court in case of grant of bail.

Learned Additional Advocate General opposed the release of the petitioners on bail on the ground that the petitioners were found in possession of 10.57 grams of heroin. One of the bail petitioner, i.e. Pawan Kumar, had statedly purchased the contraband from one Vishal at Kalka. The petitioners intended to take the recovered contraband to their native village. Possibility of the petitioners tampering with the evidence and indulging in the same transaction again cannot be ruled out.

The quantity of the contraband allegedly recovered from the bail petitioners is 10.57 grams of heroin, which is slightly above the notified small quantity and falls in intermediate category. The case of the prosecution is that the contraband was recovered from a rice container kept in the kitchen of one room set, at that time occupied by the bail petitioners, whereas the case put forward by the bail petitioners is that they were only temporarily staying in the room in question belonging to one Sh. Abhishek. Medical record of Manoj Kumar has been appended alongwith Cr.MP(M) No.627 of 2020, according to which, even after arrest, he was taken for medical check-up on 30.04.2020. Relevance, authenticity and weight of this, is of course subject to evidence to be led and appreciated at an appropriate stage. Whether procedure in accordance with law was followed in effecting the alleged recovery and whether the contraband was allegedly recovered from the conscious possession of the petitioners has to be proved by leading cogent evidence. Status report refers the bail petitioners as habitual consumers of the contraband and not as drug peddlers. No criminal antecedent of the bail petitioners has been reflected in the status report. Both the petitioners are permanent residents of the respondent-State. Therefore, their presence can be secured in the trial. Investigation in the case is complete. Their further continuation in custody will not serve any fruitful purpose. Trial of the case will take considerable time. In the interest of justice, one strict condition can be imposed upon them that in case they, in future, are found to be involved in any offense under NDPS Act, then the instant bail granted to them is liable to be cancelled on this count. Accordingly, the present petitions are allowed. Both the petitioners are ordered to be released on bail in the aforesaid FIR on their furnishing personal bond(s) in the sum of Rs.50,000/-(Rupees Fifty Thousand only) each with one local surety each in the like amount, to the satisfaction of the learned trial Court/competent authority having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioners shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). The petitioners shall not temper with the evidence or hamper the investigation in any manner whatsoever.

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

(iv). The petitioners 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 the petitioners are put to trial, then they shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioners shall inform the Station House Officer of the concerned police station about their places of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish details of their Aadhar Cards, Telephone Numbers, E-mails, PAN Cards, Bank Account Numbers, if any.

(vii). It is made clear that in case the petitioners are 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 petitions and shall not be construed as an opinion on the merits of the matter.

The parties and the competent Court/Authority, attesting the personal/surety bonds, shall not insist upon for obtaining/requiring certified copy of this order and shall download the same from the website of the High Court. However, the Registry is directed to send copy of this order to learned counsel for the parties through e-mail subject to furnishing e - mail addresses by them, if so required.

With the aforesaid observations, the present petitions stand disposed of, so also the pending miscellaneous applications, if any.