Rohit Kumar vs State Of Himachal Pradesh

Sushil Kukreja, J

By way of instant petition filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case F.I.R. No.200/2022, dated 14.08.2022, registered at Police Station West Boileauganj, District Shimla, H.P., under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

The prosecution story, in brief, is that on 14. 08.2022, at about 1:50 am, while the police party was on routine patrolling duty towards Sankatmochan, Taradevi and Shoghi, in the meantime one HRTC Bus bearing Registration No. 37H-2266 came from Solan side, which was stopped for checking. During checking, when the police party reached at seat No. 37, 38 and 39(W) a young man was found sitting on seat No.38, who was holding a gray coloured bag in his lap. When he was asked about the reason for travelling in the bus, no satisfactory answer was given. During investigation, the person sitting on Seat No.38 disclosed his name Rohit and his friend Chaman Kalta was sitting on seat No.43. Both of them had gone to Delhi. Thereafter, when the bags were searched in front of the witnesses, the accused Rohit Kumar sitting on seat No.38 was holding the bag in his lap, which had three chains on it. On checking the bag, it was containing light brown substance, which was Heroin/chitta. Both the accused revealed that both of them had brought chitta from Delhi. On weighment, it was found to be 55.03 grams. Thereafter, the police completed all the codal formalities and FIR as detailed hereinabove was registered against accused Rohit Kumar and Chaman Kalta and they were arrested.

The learned counsel for the petitioner has submitted that the bail petition has been filed on the ground that though the petitioner was released on bail, however, on 10. 01.2023 the petitioner (accused) could not put his personal appearance before the learned Trial Court, as a result of which non-bailable warrant was issued against him. He further contended that the petitioner is ready to furnish personal and surety bonds and he undertakes to abide by all such terms and conditions, as imposed by this Court, in the event of his release by this Court.

On the other hand, the learned Additional Advocate General has opposed the bail petition on the ground that the petitioner is a habitual offender and he has failed to put in appearance before the learned Trial Court when the trial was fixed before it, therefore, he does not deserve to be enlarged on bail.

I have heard the learned counsel for the petitioner, learned Additional Advocate General for the respondent/State and carefully gone through the entire records.

The perusal of the record reveals that the petitioner was arrested on 14.08.2022, as he was allegedly found in possession of 55.03 grams of heroin/chitta. However, on 01.09.2022 he was granted bail, subject to certain conditions. The perusal of the record further reveals that during the pendency of the trial, the accused had put in appearance before the learned Trial Court on 29.11.2022, but thereafter, he had failed to put his appearance before the learned Trial Court on subsequent dates. Consequently, on 10.01.2023, due to the absence of the accused, the learned Trial Court had cancelled his bail and his personal as well as surety bonds were forfeited. Thereafter, the learned Trial Court had proceeded to issue non-bailable warrant against him and on 07.08.2023 it was observed by the learned Trial Court that non-bailable warrant issued against the accused-Rohit Kumar received back unexecuted, as he was lodged in District Jail, Kaithu, Shimla, in case FIR No. 38 of 2023, under Sections 21 and 29 of the NDPS Act, Police Station Sunni, District Shimla, H.P.. Thereafter, on 12.09.2023 the petitioner had filed an application under Section 439 Cr.P.C. before the learned Trial Court in the present case to grant him bail. However, vide order dated 23.09.2023 his bail application was dismissed.

It is not in dispute that the petitioner was allegedly found in possession of 55.03 grams of heroin/chitta, which is an intermediate quantity and he was granted bail, vide order 1. 09.2022. Thus, the quantity of chitta/heroin, involved in the present case is an intermediate quantity. Therefore, rigors of Section 37 of the NDPS Act are not applicable in the present case.

It has been stated in the application that the petitioner could not put in his appearance before the learned Trial Court, as he is a patient of depression and due to attack of anxiety, he was treated in Government Hospital, Rampur, H.P., on 09.01.2023. The petitioner further submitted that his non-appearance before the learned Trial Court was neither intentional nor deliberate.

Since the petitioner was already on bail and he had shown sufficient cause for his non-appearance before the learned Trial Court on 10.01.2023 and on subsequent dates, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the police, in case F.I.R. No. 106 of 2022, FIR No. 200 of 2022, dated 14.08.2022, under Sections 21 and 29 of the ND&PS Act, registered at Police Station West Boileauganj, Shimla, H.P., shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs.1,00,000/- (Rupees one lac), with one surety in the like amount, to the satisfaction of learned Trial Court. This bail order is subject, however, to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will 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 any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorize them in any manner;

(iv) that he will not repeat the offence, as is alleged to have been committed by him.

(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(vi) that he will not leave India without prior permission of the Court.

Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.

Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.

The Registry is directed to forward a soft copy of the bail order to the Superintendent, District Jail Kaithu, Shimla, H.P., through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the petitioner is not released within a period of seven days from the date of grant of bail, the Superintendent, District Jail Kaithu, Shimla, H.P. is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent, District Jail Kaithu, Shimla, H.P., is further directed that if the petitioner fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, the said fact be submitted to this Court.

In view of the above, the instant petition is allowed and disposed of. Record of the learned Trial Court be sent back forthwith.