Rajiv Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in case FIR No.137 of 2020, dated 30.08.2020, registered in Police Station Padhar, District Mandi, H.P., under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

Status report stands filed. Record was produced.

As per prosecution case, on 29.08.2020, during patrolling for detection of offence related to Narcotic Drugs, police party laid a Nakka at Kufardhar, where, at 9.30 p.m., a Car bearing registration No.HP-29A-4404 came from Tikkan side which was stopped by the driver on signal of police personnel. There was no one in the vehicle except driver, who lit interior light of the car. On inquiry, it was revealed that he was petitioner. Police party asked for documents of the vehicle for checking and during course of taking out the documents from the Dashboard, a green coloured cloth carry bag fell down. On inquiry about this bag, petitioner got perplexed and could not give satisfactory explanation, which raised suspicion and necessity to search the bag. There was no habitation near the spot. For fifteen minutes police party waited for some passersby in vehicle, but no vehicle came during that time. Whereupon, search party of police personnel was constituted and carry bag was searched, wherefrom, black coloured stick shaped material was recovered. On the basis of smell and experience, material was identified as charas/cannabis. On weighing, charas was found to be 1.115 kilograms. By following procedure, contraband was taken into possession and seized and Rukka was sent to the Police Station. After registration of FIR, petitioner was arrested on 30.08.2020 at 5.10 a.m.

As per status report, during police remand, petitioner had disclosed that he was owner of a Truck purchased by borrowing loan, but for non-payment of installments he was declared bank defaulter resulting into selling of house and land, and thereafter he started living in a rented accommodation in his own Village. As his financial condition worsened, he extracted charas with his hands and he was in search of a customer to sell this charas to improve his financial condition. But, in the meanwhile, he met with an accident causing fracture in his right leg resulting into further worsening of his financial condition and when he regained health he planned to take charas to Pathankot during night to sell it to some potential customer.

Learned counsel for the petitioner has submitted that for non-payment of loan taken by the petitioner, due to poor financial condition, his house has been sold for recovery of the loan. He has further submitted that son of the petitioner is mentally retarded to the extent of 75% and further that earlier bail petition filed by the petitioner was dismissed by learned Special Judge Mandi on 23.09.2020 and thereafter, he had approached this Court by filing Cr.M.P.(M) No.2300 of 2020, which was dismissed vide order dated 04.02.2021. Further that in 2021, petitioner had filed Cr.M.P.(M) No.2307 of 2021 for grant of interim bail for performing Chaturvarshik Shraadh of his father being only surviving son and also for treatment of his leg which was operated, and Court had granted interim bail vide order dated 20.11.2021. He has further submitted that petitioner was arrested on 30.08.2020 and since about last more than eighteen months, he is behind the bars.

It has further been submitted on behalf of the petitioner that even if prosecution story is considered to be true, then also quantity of contraband is slightly higher than the commercial quantity, which is nearer to intermediate quantity and the weight of the contraband has been taken by the police alongwith carry bag and it has been found 1.115 kilogram and, therefore, it is a case of border line, where rigors of Section 37 of NDPS Act are not to be applied and further petitioner has no criminal history of commission of the same and/or similar nature of offence and, therefore, at this stage, it would be injustice with the petitioner to consider him as a habitual offender and, therefore, keeping in view quantity of contraband alleged to have been recovered from the petitioner, prayer for enlarging him on bail has been made.

Learned Additional Advocate General has opposed grant of bail on the ground that commercial quantity of 1 kg and 115 grams of charas has been recovered from the petitioner and the offence committed by the petitioner is not only affecting the individual but also society at large, therefore, petitioner is not entitled for bail.

Considering all facts and circumstances, as narrated in the prosecution story, including quantum of contraband recovered from the carry bag allegedly being carried by petitioner and period of his detention and other material placed before me, I am of the opinion that, at this stage, without commenting upon the merits of the claims and counter claims of prosecution and learned counsel for the petitioner-accused, petitioner can be enlarged on bail.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused 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 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, his bail shall be liable to becancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

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 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 condition 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.

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.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.