Samridhi Bedi vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

For possessing commercial quantity of contraband, FIR No.81/2020, dated 23.6.2020, has been registered against the petitioner and four others

under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, at Police Station Damtal, District Kangra H.P. The

petitioner is in custody w.e.f. 23.6.2020 and is seeking regular bail under Section 439 of the Code of Criminal Procedure.

2 Cr.MP(M) No.1274/2020, preferred by the petitioner in this Court was withdrawn on 31.7.2020, with liberty to move the Court of learned Special

Judge-II, Kangra at Dharmshala. Learned Special Judge-II, Kangra at Dharmshala dismissed petitioner’s bail application on 11.8.2020.

The second bail petition Cr.MP(M) No.1398/2020 instituted by the petitioner was withdrawn on 28.8.2020 at the stage when the detailed facts stood

recorded in the order. Third bail petition Cr.M.P(M) No 1562/2020, instituted a week thereafter, was dismissed with reasoning vide judgment dated

18.9.2020. Instant is petitioner’s fourth successive bail petition.

This fourth successive bail petition has been filed by the petitioner on the following grounds:-

(a) Petitioner has been falsely implicated in the FIR in question.

(b) Provision of Section 37 of NDPS Act are not attracted to the facts of the case.

(c) Challan has not been presented.

(d) Investigation is complete.

Therefore, prayer has been made for enlargement of petitioner on bail by submitting that the petitioner will abide by all the terms and conditions, which

may be imposed upon her.

Mr. Anil Jaswal, learned Additional Advocate General, while opposing the bail plea has submitted that the grounds raised in the instant bail petition

have already been considered in the judgment dated 18.9.2020 rejecting the earlier bail application of the petitioner (Cr.M.P(M) No.1562/2020). No

new ground has been made out in the instant petition. He also submitted that the challan stands presented before the Court of competent jurisdiction

on 10.11.2020. The trial is at the initial stage. Petitioner is accused of serious offences under the NDPS Act for possessing commercial quantity of

contraband affecting the society at large. There is strong apprehension that after release on bail, petitioner alongwith others involved will influence the

prosecution witnesses and will cause prejudice to the trial.

4(i) The ground with respect to applicability of Section 37 of NDPS Act and alleged false implication of the petitioner has already been considered in

the judgment dated 18.9.2020 rejecting petitioner’s bail application Cr.M.P(M) No 1562/2020. The judgment was passed after hearing learned

counsel for the parties and after perusal of the records. Bare minimum relevant extracts from the judgment are as under:-

“4. Learned Counsel for the the petitioner has argued that the petitioner has been falsely implicated with the alleged offence. To efface

the submissions made by learned Senior Counsel for the petitioner in Cr.MP(M) No. 1012 of 2020, learned Counsel for petitioner Samridhi

Bedi contended that Samridhi Bedi was not alone in purchase of recovered contraband and it cannot be said that she had obtained the

contraband recovered from the vehicle only for her own use. The contraband was procured by Samridhi Bedi at the request of other

occupants of the vehicle and was meant for use of all the four accused persons. Though this argument cuts across the entire case of the

petitioner for release on bail, nonetheless learned Counsel has prayed for releasing the petitioner on bail considering the fact that the

petitioner has throughout remained a bright student in her career. Whereas learned Assistant Advocate General vehemently opposed the

bail on the ground that commercial quantity of psychotropic substance Tramadol was recovered from the vehicle occupied by petitioner.

Record shows that it was a case of joint possession of all the four accused persons. As per Call Detail Reports, petitioner on the day of

incident itself had twelve times called Surinder Pal from whom she disclosed to have obtained the recovered contraband.

5(i) Heroin as well as Ridley capsules were recovered from the vehicle occupied by four accused persons including the petitioner. Heroin so

recovered weighed 8.38 grams which falls under commonly known ‘intermediate quantity’ under the NDPS Act. According to the

SFSL report, total weight of recovered capsules was 706.200 grams and total weight of the powder of recovered capsules was 600.600

grams. It would be apposite here to refer to the judgment passed by 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 determining the “small or commercial quantityâ€​ of the Narcotic Drugs or Psychotropic Substances;

(III) Section 21 of the NDPS Act is not stand-alone provision and 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.â€​

In the instant case total weight of powder of recovered capsule was 600.600 grams. This weight exceeds 250 grams notified as commercial

quantity of Tramadol under the NDPS Act…….

5(ii) It has already been noticed that though the quantity of the Heroin recovered from the vehicle in question fell under commonly known

as ‘intermediate quantity’. However, total weight of powder of 1102 number of Ridley capsules containing psychotropic substance

Tramadol hydrochloride was 600.600 grams. The weight of powder of the capsules allegedly recovered from the vehicle exceeded 250

grams notified as commercial quantity of psychotropic substance Tramadol under the NDPS Act. Possession consists of two elements, corpus

or the physical control and the second animus or intent (Refer(2015) 6SCC 222, titled Mohan Lal vs. State of Rajasthan.) I have perused

the record. At this juncture it cannot be said that petitioner was not in joint possession of the recovered contraband. Heroin was allegedly

recovered from the middle of the front seat whereas Ridley capsules were recovered underneath the seat adjoining to the driver seat of the

vehicle. During investigation, all the accused persons have statedly admitted about consuming the contraband and purchasing it from

Surinder Pal. As per record though Samridhi Bedi, petitioner herein, had obtained the recovered contraband from Surinder Pal but from

the perusal of record, at this stage it cannot be said that the contraband was meant to be used only by her or that the other accused persons

were not in joint possession of the contraband. Call Detail Report of mobile number belonging to petitioner reveals that on the date of

incident, she had exchanged twelve calls on the mobile number belonging to Surinder Pal from whom she had statedly procured the

contraband in question. The petitioner, therefore, has failed to meet the requirements of Section 37 of the NDPS Act. It cannot be said at

this juncture that there are no reasonable grounds to believe that petitioner is not guilty of the offence alleged against her. Therefore, there

is no merit in the bail petition, which is dismissed at this stage reserving liberty to the petitioner to file fresh petition at an appropriate stage

in accordance with law, if so advised.â€​

4(ii) In the instant bail petition, the points already considered while rejecting petitioner’s previous bail petition have been reiterated. Petitioner is

also incorrect in submitting that the challan has not been presented before the court of competent jurisdiction. The status report mentions that the

police report under Section 173(2) Cr.P.C stands presented before the Court of competent jurisdiction on 10.11.2020, which position is now admitted

by learned counsel for the petitioner. The trial is at the stage of infancy. The petitioner is accused of possessing commercial quantity of contraband.

Her release at this stage would not only be in-violation of provisions of Section 37 of NDPS Act but will also prejudice the trial as her alongwith others

involved influencing the prosecution witnesses and thereby affecting the trial cannot be ruled out at this stage. The grounds and circumstances raised

in the instant petition have already been considered while rejecting the earlier bail petition Cr.M.P(M) No 1562/2020 on 18.9.2020. No material

substantive change in the grounds/circumstances has been pointed out in the instant petition to take a different view. Accordingly, I find no merit in the

instant bail petition and the same is dismissed at this stage. Pending miscellaneous application(s), if any, shall also stand disposed of.

It is clarified that instant petition has been dismissed only for the reasons indicated above and no observation has been made with respect to the merits

of matter. The observations made above shall not come in the way of petitioner’s filing subsequent bail petition, if any, in accordance with law.