Rakesh Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner seeks bail in FIR No.200/2020, dated 31.12.2020, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') at Police Station Damtal, District Kangra.

Heard learned counsel for the parties and gone through the status report.

The case against the petitioner is that on 31.12.2020, a policy party while on patrolling duty near NH-44 at Damtal, observed a person coming from Mohtali Railway Gate. The person was identified by the police personnel as cases under the NDPS Act were previously also registered against him (petitioner). On seeing the police party, the petitioner in a clever and smart manner took out some article from the right pocket of his lower and threw it in the nearby bushes. At fast pace, the petitioner retraced his steps back to Railway Gate Mohtali. Getting suspicious, the police personnel nabbed the petitioner. He was not able to satisfactorily answer the queries of the police personnel. He was made to retrieve the article thrown by him earlier. The article thrown by the petitioner was checked with the drug detection kit carried by the patrolling party, which indicated that the recovered substance was heroin. The contraband weighed 6.05 grams. Accordingly, the instant FIR was registered after complying with the procedure prescribed in law. Petitioner was arrested on 31.12.2020.

A previous bail petition filed by the petitioner was dismissed by the learned Special Judge-II, Kangra at Dharamshala, on 04.03.2021, primarily on the ground that the petitioner had criminal antecedents under the NDPS Act.

Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the FIR. He also submitted that previously two FIRs have been registered against the petitioner. FIR No.79 of 2015 registered against the petitioner was in respect of possessing 31 grams of poppy straw and 2.08 grams of heroin. Both fell under less than small quantity notified under the Act. Whereas, the second FIR No.277 of 2018 registered against him under Section 22 of the NDPS Act pertains to intermediate quantity of psychotropic substances. Learned counsel for the petitioner further submitted that in case of his enlargement on bail, the petitioner will not influence the prosecution witnesses or tamper the prosecution evidence and will abide by all the terms and conditions, which may be imposed upon him by this Court.

Per contra, learned Additional Advocate General submitted that considering the previous criminal antecedents of the petitioner under the NDPS Act, he be not enlarged on bail. He also submitted that in case this Court is inclined to grant bail to the petitioner, then the same be made subject to stringent conditions.

The quantity of the contraband allegedly recovered from the petitioner in the instant FIR is 6.05 grams of heroin. The quantity is nearer to the small quantity notified under the NDPS Act. Therefore, rigors of Section 37 of the NDPS Act will not be attracted. Admittedly, the petitioner has criminal antecedents under the NDPS Act involving one case (FIR No.79/2015) pertaining to alleged recovery of less than small quantity of the contraband from him and second case (FIR No.277 of 2018) in respect of possessing intermediate quantity of the psychotropic substance. The petitioner is aged 38 years and is in custody w.e.f. 31.12.2020. Investigation in the matter is complete. Petitioner is resident of Village & Post Office Mohtali, Tehsil Indora, District Kangra, Himachal Pradesh, therefore, his presence can be ensured in the trial. Considering petitioner's previous criminal antecedents, a stringent condition is being imposed upon him that in case he is found to be involved in any FIR under the NDPS Act in future, irrespective of the quantity recovered from him, his instant bail will liable to be rejected at the instance of the Investigating Agency. Accordingly, the present petition is allowed and the bail 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 having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioner shall 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 this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.

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. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

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

Copy dasti.