Rakesh Kumar vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Rakesh Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing him on bail, during the pendency of trial, in case FIR No. 87 of 2022, dated 11th May, 2022, registered with Police Station Damtal, District Kangra, H.P. under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

The applicant has sought the bail, on the ground, that he is an innocent person and has nothing to do with the alleged offence, for which, he has been arrested by the police.

It is his further case that investigation, in the present case, is complete and nothing is to be recovered from him or at his instance and no fruitful purpose will be served by keeping him in judicial custody.

Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

It would be apt to record herein that the applicant had earlier filed the application, under Section 439 CrPC, for bail, in this case, which was registered as CrMP (M) No. 2285 of 2022. The said application was dismissed as withdrawn on 28 th October, 2022. The present petition has been filed on 10th January, 2023 and the same was listed before the same Bench. However, on 11th January, 2023, the following order has been passed:

“Notice. Mr. Manoj Chauhan, learned Additional Advocate General appear and waives service of notice on behalf of the respondent and seeks time to file status report.

List on 20.01.2023 before the Vacation Judge.”

In view of the above order, the matter has been taken up today by this Court.

When put on notice, police filed the status report, disclosing therein that on 11th May, 2022, a rukka was received in Police Station Damtal, District Kangra, according to which, the contraband, i.e. heroin, weighing 6.42 grams, was found from the exclusive and conscious possession of the applicant, during the search of his house. The Investigating Officer has completed the other codal formalities, in this case.

In the status report, the police has also given the details of the other criminal cases, which have been registered against the applicant. The said details are, as under:

“(i) Case FIR No. 18/17, dated 5th January, 2017, under NDPS Act, at Police Station Nurpur;

(ii) Case FIR No. 213/17, dated 6th July, 2017, under Section 21-61-85 NDPS Act, at Police Station Nurpur;

(iii) Case FIR No. 5/21, dated 11th January, 2021, under Sections 21-61-85 NDPS Act, at Police Station Damtal;

(iv) Case FIR No. 104/21, dated 14th September, 2021, under Sections 21-61-85 of NDPS Act, at Police Station Damtal;

(v) Case FIR No. 52/2005, dated 23rd March, 2005, under Section 61-1-14 of Excise Act, at Police Station Kila Lal Singh, Distt. Batala, Punjab;

(vi) Case FIR No. 134/2019, dated 13 th November, 2019, under Sections 21-22, 29-61-85 NDPS Act, at Police Station Division No. 2, Pathankot, Punjab;

(vii) Case FIR No. 249/03, dated 29th November, 2003, under Sections 452, 324, 323, 342 IPC & Section 25-54-59 Arms Act, at Police Station Indora;

(viii) Case FIR No. 74/19, under Section 61-1-14 of Excise Act, at Police Station Division No. 1, Pathankot.”

It has been apprehended that in case, the applicant is released on bail, he may again indulge, in such type of activities and may coerce the witnesses.

On all these submissions, a prayer has been made to dismiss the bail application.

Heard.

Admittedly, the contraband allegedly recovered from the possession of the applicant, in this case, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.

Once, it has been held that rigors of Section 37 of the NDPS Act are not applicable, in this case, then the presumption of innocence is still available to the applicant, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment is prohibited under the law. The trial of the accused will take sufficient long time and no useful purpose would be served by keeping him in judicial custody.

At the time of deciding the bail application, the Court should refrain from discussing the case of the prosecution in detail, as, the same would cause prejudice to the case of the prosecution or the defence.

So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the applicant, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed.

As regards the effect of the eight cases registered against the applicant, admittedly, the conviction has not been inflicted upon the applicant and mere registration of these cases, no way, takes away the presumption of innocence, from the applicant. There is nothing on the record to show that the police has moved any application for cancellation of bail, in the above cases, for the alleged violation of the undertaking(s), so given by the applicant.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 87 of 2022, dated 11 th May, 2022, registered with Police Station Damtal, District Kangra, H.P. under Section 21 of the NDPS Act, on his furnishing personal bail bond, in the sum of ₹ 50,000/- , with one surety of the like amount, to the satisfaction of learned CJM/JMFC/Duty Magistrate, Kangra at Dharamshala. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.

Applicant may produce a downloaded copy of the order, passed by the Court, before the learned CJM/JMFC/Duty Magistrate, Kangra at Dharamshala, and the said Court shall not insist for the certified copy of order, rather, passing of order can be verified from the web-page of this Court.