Sandeep Thakur Alias Sandy vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition seeking the grant of regular bail. It has been asserted that FIR No. 205 of 2023, dated 22.10.2023 was registered against the petitioner for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘ND&PS Act’) at Police Station, Dhalli, District Shimla, H.P. As per the police version, the police party searched the vehicle bearing registration no. HP-62-B-0645. The petitioner was occupying the driver's seat. The police searched the vehicle based on suspicion in the presence of independent witnesses and recovered 8.54 grams of heroin. The petitioner is innocent and he was falsely implicated. The investigation has been completed and the petitioner is not required by the police. The petitioner has been in custody since 22.10.2023. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence the present petition.

The petition was opposed by filing a reply, asserting that the police party was on patrolling duty. They found a vehicle bearing registration no. HP-62-B-0645 parked on the roadside. The petitioner was occupying the driver's seat. The police inquired his name but the petitioner tried to run away. The police apprehended the petitioner and searched the vehicle in the presence of independent witnesses. The police recovered the electronic weighing machine and 8.54 grams of heroin. The police seized the heroin and arrested the petitioner. The petitioner revealed on inquiry that he had purchased the heroin from Honey for Jeet Ram, who revealed that he had purchased the heroin for his consumption. The petitioner identified Honey who was arrested. The petitioner, Jeet Ram and Honey Kumar are in judicial custody. The challan is being prepared against the petitioner and other accused.

I have heard Mr. Harsh Vardhan, learned Counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State.

Mr. Harsh Vardhan, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the police version, the petitioner had bought the heroin at the instance of Jeet Ram. The petitioner is not a drug peddler. The petitioner has no criminal antecedents; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State submitted that the petitioner is involved in the transportation of heroin, which is a heinous offence as it is adversely affecting the young generation; therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.’

The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

The status report shows that the petitioner was found in possession of 8.54 grams of heroin, which is slightly more than the small quantity. As per the status report, the petitioner had purchased the heroin from Honey Kumar at the instance of Jeet Ram. Jeet Ram had purchased the heroin for his consumption. Thus the status report shows that the heroin was not meant for selling and was meant for the consumption of Jeet Ram. Therefore, the submission that the petitioner is a drug peddler, who is affecting the young generation adversely, is not acceptable.

As per the status report, the petitioner is in custody. One accused Malkiyat Singh is yet to be arrested and the challan is to be prepared against the petitioner and other accused. This means that the petitioner is not required for investigation and no useful purpose would be served by detaining the petitioner in custody.

The status report does not show that the petitioner was involved in the commission of a similar offence in the past.

The petitioner claims that he is preparing for a competitive examination, hence his detention in custody will affect his career adversely. The petitioner deserves a chance to reform himself. The chance of reformation would be bleak in case the petitioner is kept in custody as he will come in contact with hardened criminals.

In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹50,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions:-

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police Court within five days from the date of the change.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.