Rahul vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘ND&PS Act’) registered vide FIR No. 240 of 2023, dated 18.11.2023 at Police Station Sadar, Solan, HP. The petitioner is innocent and he was falsely implicated. The police had failed to comply with the mandatory provisions of the ND&PS Act. The investigation is complete. The petitioner has been in custody since 18.11.2023. The quantity of heroin stated to have been recovered from the possession of the petitioner is intermediate quantity i.e., 7.34 grams heroin. The petitioner would abide by all the terms and conditions which may be imposed by the Court. Therefore, it was prayed that the petition be allowed and the petitioner be released on bail.

The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 18. 11.2023 when a secret information was received that Vijay Kumar and Rahul were staying in Room No. 104 of Sona Guest House and they had brought a huge quantity of heroin. The information was reduced to writing. Room No.104 was searched and during search, 7.34 grams of heroin was recovered. Rahul and Vijay were found in the room. The police arrested them and seized the heroin. They were interrogated and thereafter Narinder Singh and Mohit Lakhanpal were arrested based on the disclosure statements made by Rahul and Vijay. The result of the analysis shows that the sample stated to be heroin was a sample of Diacetylmorphine (Heroin). One of the accused Harjot Singh was also arrested after filing the charge sheet. No other case has been registered against the petitioner-Rahul.

I have heard Mr. Naresh Sharma, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr. Naresh Sharma, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the status report, no case has been registered against the petitioner. The quantity of heroin stated to have been recovered from the possession of the petitioner is less than the commercial quantity and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioner would abide by all the terms and conditions which may be imposed by the Court. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the petitioner was found in possession of heroin which is adversely affecting the young generation. Releasing the petitioner on bail would encourage the drug peddlers to commit a similar offence. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the records carefully.

The Hon’ble Supreme Court had discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.’

It was specifically stated in the status report that no case was registered against the petitioner. The police had received information that the petitioner and his co-accused were selling huge quantities of heroin, however, the police could only recover 7.34 grams of heroin. The status report does not show that heroin was sold to any person. Therefore, the submission that the petitioner is a drug peddler, who is involved in supplying heroin to various persons cannot be accepted.

The police have presented the challan before the Court which shows that the investigation is complete. Hence, no useful purpose would be served by detaining the petitioner in custody.

The petitioner is a first-time offender and he deserves a chance to reform himself. In case of his continued detention, he can come in contact with the hardened criminals and the chance of his reformation would become bleak.

Therefore, the petitioner deserves to be released on bail on this consideration as well.

In view of the above, the petitioner is ordered to be released on bail in the sum of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.