Sandeep vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure, has approached this Court for grant of bail in case FIR No.44/2021, dated 26.5.2021, registered under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) in Police Station Rajgarh, District Sirmaur, Himachal Pradesh.

Status Report stands filed. Record has also been made available.

Status Report narrates the circumstances in which Police Patrolling and Traffic Checking Party, on 26.5.2021 at about 12.15 p.m. near Halonipul Road, apprehended the petitioner with a carry bag containing 1.030 kgs Charas, in presence of independent witnesses Harsh and Lov Prakash, after following the prescribed procedure.

Status Report further states that after recovery of the contraband and registration of FIR on the basis of Ruka sent from the spot to the Police Station, petitioner was arrested.

As per prosecution case, during interrogation, petitioner disclosed that he is under treatment for depression (disease) as he was separated from his family in the year 2010 and after death of father, he has inherited 8 bighas of land but that land is unirrigated and is not of good quality and further that since last two years it did not yield good crop and his income is too low to incur the expenses of the family and medicines and this time he had sown garlic but the crop was vanished and even expenses of sowing the same were also not recovered and he is under debt of about `3,00,000/- and under compulsion he started extraction of Charas from the naturally grown plants of cannabis on the river-bed and had collected the Charas and alongwith said Charas he was going to Rajgarh to sell the same in the Truck Union, Drivers, etc. for earning money for repayment of debt, as he did not get any lift, therefore, he was going on foot to Rajgarh.

Recovered contraband has been confirmed as Charas by the State Forensic Science Laboratory, in its Report, after chemical analysis of the same.

Petitioner was arrested on 26.5.2021 and after remaining in police custody he is in judicial custody since then.

Learned counsel for petitioner has submitted that as per prosecution, at the time of recovery, weight of recovered contraband was 1.030 Kg. which is slightly more than 1 Kg and it is borderline case with respect to minimum prescribed quantity of commercial quantity and he has submitted that there may be error in weighing the contraband as recovered contraband is only 30 grams higher than 1 Kg and, therefore, case of petitioner deserves to be considered without applying rigors of Section 37 of NDPS Act.

Learned Additional Advocate General has submitted that weight mentioned in recovery memo as well as other documents, is correct weight which is more than 1 Kg and, therefore, quantity of charas recovered in present case is of commercial quantity and, thus, petitioner, who is involved in commission of heinous crime which causes damage to individual, his family as well as society, is not entitled for bail.

In response, it has been submitted that in case prosecution case is taken to be true as it is then also petitioner is first time offender, having no previous criminal history of any kind and, therefore, petitioner cannot be said to be a habitual offender so as to invoke the provisions of Section 37 of NDPS Act and, therefore, petitioner is entitled for bail, who is behind the bars since last one year.

It has further been submitted by the learned counsel for the petitioners that in case the petitioner is ordered to be released on bail, he is ready to furnish the bail bonds and also to abide by any conditions that may be imposed by the Court.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioner may be enlarged on bail.

Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail, at this stage, subject to his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount to the satisfaction of the trial Court, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioner shall 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 such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that he shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) he shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93 -IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, passing of order may be verified from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.