Rafi Ahmed 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. 5 of 2020, dated 6.1.2020, registered under Section 20 of the Narcotics and Psychotropic Substances Act (for short “NDPS Act”) in Police Station Chowari District Chamba, H.P.

Status report stands filed. Record was also made available.

As per status report, on 6.1.2020, during checking of vehicle being driven by petitioner Rafi Ahmed, who was accompanied by co-accused Farookh, 1.01 kilograms charas was recovered from the vehicle, which was taken into possession and seized by following prescribed procedure under law in presence of independent witness.

Thereafter by sending rukka, FIR was registered and investigation was carried on and petitioner alongwith co-accused were arrested. Since then, after remaining in Police custody, petitioner is in judicial custody and detained in District Jail Mandi.

As per status report challan was presented in the trial Court on 18.5.2020 and now it has been fixed for recording evidence of prosecution witnesses on 22.12.2022.

As per Status Report, an FIR No.110/2016, under Sections 353, 332, 341 and 504 of the Indian Penal Code has been found registered against the petitioner in Police Station Tissa, District Chamba, Himachal Pradesh.

It has been submitted by learned counsel for petitioner that recovered quantity of 1.01 kg is slightly higher than commercial quantity of 1 kg of Charas which is nearer to intermediate quantity and further that the contraband has not been recovered from the petitioner and that the petitioner has no history of involvement in a case related to NDPS Act and, therefore, he cannot be considered a habitual offender to attract the rigors of Section 37 of NDPS Act.

It has also been submitted by the learned counsel for the petitioner that the petitioner has been arrested on 6.1.2020 and since then he is behind the bars for more than 2 years 10 months and now the case is pending before the Trial Court for recording prosecution evidence.

Learned counsel for the petitioner has placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.

Reliance has also been placed on order dated 10.11.2021, passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh v. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.

Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021, passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was field on 23. 9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.

Learned counsel for the petitioner has referred pronouncements the Supreme Court in Nitish Adhikary @ Bapan v. The state of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused under Sections 21(c) and 37 of NDPS Act was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage; and Special Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jammu and Kashmir, decided on 1.8.2022, wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5, months observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020, passed by Three Judges’ Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.

Learned counsel for the petitioner has also relied upon an order of this Court, dated 6.9.2022, passed in Cr.MP(M) No.1328 of 2022, titled as Roop Singh v. State of Himachal Pradesh, whereby the petitioner therein, who was found in possession of commercial quantity of Tramadol, was ordered to be enlarged on bail, on the ground of delay in conclusion of trial.

Learned counsel for the petitioner submits that these judgments have been cited to canvass that a person can be enlarged on bail even if rigors of Section 37 of NDPS Act are attracted.

Learned Deputy Advocate General, referring criminal history of the petitioner, has opposed the grant of bail to the petitioner, on the ground that commercial quantity of 1.01 kg of charas has been recovered from the petitioner and the offence committed by the petitioner is damaging not only individuals, families but also society at large. He has submitted that petitioner is not entitled for bail.

Learned counsel for the petitioner has further submitted that the petitioner undertakes to abide by any condition, which may be imposed by the Court, and shall furnish the bail bonds as will be directed, in case of his release on bail.

Without commenting upon merits of the case, but taking into consideration material placed before me and taking note of factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount, to the satisfaction of trial Court and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner 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, her bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for her availability to Police and/or during trial; and

(ix) the petitioner shall not leave India without permission of the Court.

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, enlarged on bail, 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 conditions 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.

Learned 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.

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.

The parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.