Pawan Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is in custody w.e.f 24.02.2020 in FIR No.14/2020, dated 24.02.2020, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') registered at Police Station Parwanoo and as such, has preferred the instant petition under Section 439 of the Code of Criminal Procedure for grant of regular bail.

I have heard Mr. Kulwant Singh Katoch, learned counsel for the bail petitioner and Mr. Anil Jaswal, learned Additional Advocate General, on behalf of the respondent-State, through video conference and gone through the status report filed today by the respondent-State.

Case against the petitioner is that a Police Party while on patrolling duty on 24.02.2020 at around 9:45 pm near Gabriel Road Parwanoo, noticed a person coming downwards near Truck Union. This person (later identified as bail petitioner), on seeing the patrolling party, tried to flee from the place and in the process, threw two packets ('pudiya') onto the road. The police party getting suspicious, apprehended the petitioner. The packets thrown by him were collected and found to be containing 6.98 grams of heroin. Independent witnesses were not available. Two personnel of the police party were associated as witnesses. The procedure prescribed under law was followed, leading to registration of the FIR in question.

An earlier bail application preferred by the petitioner was rejected by the learned Special Judge-III, Solan, District Solan, primarily on the grounds that the petitioner was found transporting heroin and possibility of his tampering with the prosecution evidence and indulging in same transactions again cannot be ruled out.

Learned counsel for the petitioner submitted that:- the petitioner has been falsely implicated with the offenses alleged against him; independent witnesses were not associated during the alleged search; procedure as contemplated in accordance with law was not followed; petitioner has not committed any offense; investigation in the case is complete; petitioner will not hamper the trial or temper the prosecution evidence in case of grant of bail and will abide by all the conditions imposed upon him by this Court in case of grant of bail. Learned Additional Advocate General has opposed the grant of bail on the ground that the petitioner is used to heroin and if released on bail, he may indulge in the same offense again.

The quantity of the contraband allegedly recovered from the bail petitioner is 6.98 grams with weight of polythene. This quantity allegedly recovered from the petitioner is less than commercial quantity notified under the Act. Therefore, rigors of Section 37 of the NDPS Act will not be attracted. As per the status report, the petitioner was only habitual of consuming heroin and not that he was a drug peddler. The petitioner has no criminal antecedent. He is 36 years of age and is permanent resident of Village Kheel-Jashli, Post Office Kumarhatti, Tehsil and District Solan. Therefore, his presence can be secured in the trial. Investigation in the case is complete. Challan is stated to have been prepared on 24.03.2020 for further submission in the Court. Bail petitioner is in custody w.e.f. 24.02.2020 and nothing is to be recovered from him. Trial of the case will take sufficient time. He cannot be kept behind bars for an indefinite period. In any case, one strict condition can be imposed upon him that in case he, in future, is found to be involved in any offense under NDPS Act, then the instant bail granted to him is liable to be cancelled on this count. Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand only) with one local surety 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 petitioner is directed to join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

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

(iii). The petitioner will 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). In case the petitioner is put to trial, then he 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 the petitioner is arraigned as an accused in future, in any FIR under NDPS Act, then his 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.

The Registry is directed to send a copy of this order to the District and Sessions Judge concerned through e-mail. The parties and the competent Court/Authority, attesting the personal/surety bonds, shall not insist upon for obtaining/requiring certified copy(s) of this order and shall download the same from the website of the High Court. However, the Registry is directed to send copy(s) 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 petition stands disposed of, so also the pending miscellaneous applications, if any.