Samridhi Bedi vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner, presently in custody, as co-accused in FIR No.81/2020, dated 23.06.2020, registered under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (The Act for short) at Police Station Damtal, District Kangra, H.P., is seeking regular bail under Section 439 of the Code of Criminal Procedure.

Heard learned counsel for the parties and perused the status report.

The case of the prosecution as it comes out from the status report is that:-

3(i). On 23.6.2020, a police party was patrolling in areas under the jurisdiction of the concerned police station. At around 4.00 p.m.,it reached about 100/150 meters ahead to Bhadroya, where it noticed a parked vehicle facing Kandwal side. This solitary parked vehicle with four occupants therein including a girl (bail petitioner) raised the suspicion in the minds of the patrolling party personnel, therefore, the police personnel approached the vehicle and its occupants were asked the reason for stopping/parking the vehicle there. No satisfactory answer was given by the occupants, rather they appeared baffled & perplexed. It appeared to the police official that the girl (petitioner) siting on the front seat of the vehicle alongside driver had thrown out something. On being questioned, she denied throwing out anything. Two local persons passing the road thereafter were associated as independent witnesses. Search of the vehicle was carried out in accordance with law after associating the independent witnesses. During search, some substance kept in a polyzip envelope was recovered from the middle of front seats. On the basis of experience of the patrolling party personnel, the substance was determined as Heroin. Drug detection kit was also requisitioned. In the meanwhile, all the occupants of the vehicle gave their identities as Sidhant Thakur (the driver), Samridhi Bedi (bail petitioner), Rajat and Abhishant. Further search of the vehicle yielded recovery of 1102 number of Ridley Capsules under-neath the seat adjoining to the driver seat i.e. the seat occupied by the petitioner. The drug detection kit confirmed the recovered contraband as heroin. Weight of this contraband so recovered from the middle of the front seat of the vehicle measured 8.38 grams on the electronic scale. Entire procedure contemplated under the Code of Criminal Procedure as well as Narcotic Drugs and Psychotropic Substances Act was followed leading to registration of FIR in question. All the accused persons including the petitioner were arrested on 23.6.2020.

3(ii). According to the status report, during investigation, the petitioner allegedly disclosed that they had purchased the recovered contraband from one Surinder Pal alias Chandi alias Veera S/o Sh. Gulzari Lal, R/o village Chhanni Tehsil Indora, District Kangra. This statement was allegedly corroborated by the other accused persons as well.

3(iii). Investigating agency thereafter tried to locate said Surinder Pal, from whom the accused persons had allegedly procured the contraband. Call Detail Reports (CDR) of the mobile phone of accused (bail petitioner) was obtained. As per these reports on 23.6.2020, itself i.e. the date of the incident, the petitioner had spoken to Surinder Pal on his mobile number twelve times. Anticipatory bail petition filed by Surinder Pal is stated to have been rejected on 13.8.2020. Status report has also indicated criminal antecedents of the accused Sidhant, Rajat and Abhishant, though not under NDPS Act.

3(iv). According to the status report, as per report of State Forensic Science Laboratory (SFSL) Junga, recovered Ridley capsules contained psychotropic substance Tramadol Hydrochloride. The total weight of Ridley capsules recovered from the vehicle in question occupied by all the four accused persons including the petitioner was 706.200 grams and total weight of the powder was 600.600 grams.

It would be appropriate to refer to the judgment passed by the Hon'ble Apex Court in Criminal Appeal No. 722 of 2017, titled as Hira Singh Vs. Union of India, decided on 22nd April, 2020, wherein it has been held that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be excluded, rather it is to be taken into consideration alongwith actual content by weight of the offending drug while determining the 'small quantity or commercial quantity' of a narcotic drug or psychotropic substance. The relevant para from the judgment is reproduced thus:-

"10. In view of the above and for the reasons stated above, Reference is answered as under:-

(I) The decision of this Court in the case of E.Micheal Raj (supra) taking the view that in the mixture of narcotic drugs and psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not required to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and to be taken into consideration alongwith actual content by weight of the offending drug, while determiningthe "small or commercial quantity" of the Narcotic Drugs or Psychotropic Substances;

(III) Section 21 of the NDPS Act is not stand-alone provisionand must be construed alongwith other provisions in the statute including provisions in the NDPS act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E) dated 19.10.2001.

(IV) Challenge to Notification dated 18.11.2009 adding "Note 4" to the Notification dated 19.10.2001, fails and it is observed and held that the same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017 challenging the aforesaid notification stand dismissed."

According to the SFSL report, the total weight of recovered capsules was 706.200 grams and total weight of powder of the recovered capsules was 600.600 grams. In terms of the notification issued under the NDPS Act, the weight of capsules allegedly recovered from the vehicle in question exceeds the commercial quantity notified under the Act, therefore, rigors of Section 37 of the Act are attracted.

At this stage, after arguing the matter for considerable time, learned counsel for the petitioner seeks permission to withdraw the present petition with liberty to move afresh, in accordance with law at an appropriate stage, if so required. Accordingly, the petition is dismissed as withdrawn with leave and liberty, as prayed for. It is clarified that observation made above will not come in the way of the petitioner in her future bail application. Pending miscellaneous application(s), if any, shall also disposed of.