Sumit vs State Of H.P.

Jyotsna Rewal Dua, J

Petitioner is in custody w.e.f. 10.03.2021, for possessing 9.48 grams of heroin, in FIR No.53/2021, dated 10.03.2021, registered under Sections 21

& 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) at Police Station Rampur Bushhar, District Shimla, H.P. The

allegation against the petitioner is that he had procured the contraband along with co-accused Rahul Malya through another co-accused one Rahul

Dhiman. By means of present petition, prayer for his enlargement on regular bail has been made .

Heard learned counsel for the parties and gone through the status report as well as documents brought on record.

Briefly, the allegations are that a police party, while on patrolling duty, on 10.03.2021, noticed a person (later on identified as Rahul Dhiman) whose

activities appeared suspicious to the police personnel. The person had thrown some article on seeing the police personnel, thereafter, the police

personnel deemed it necessary to carry out the search. The procedure contemplated in law was followed. The article thrown by said Rahul Dhiman

was collected and was ascertained as Heroin. The contraband weighed 9.48 grams. The recovery led to registration of FIR in question.

During investigation, the person disclosed his details as Rahul Dhiman, son of Prem Dhiman. He also disclosed procuring the contraband from

Chandigarh at the instance of bail petitioner and co-accused Rahul Malya in lieu of Rs. 15,000/-. He further disclosed that he added Rs. 5,000/- of his

own and then purchased the contraband from Chandigarh on 09.03.2021. The mode and manner of purchase of the contraband is not necessary to be

gone into at this stage for the purpose of adjudicating instant bail petition. On the basis of investigation carried out from Rahul Dhiman, co-accused

Rahul Malya was arrested on 12.03.2021. Petitioner was arrested on 13.03.2021. The petitioner during investigation is stated to have revealed

purchasing the contraband from one Ganesh, resident of Chandigarh. Co-accused Ganesh was also arrested on 16.03.2021. As per status report,

during investigation, co-accused Ganesh statedly disclosed doing business of sale of Heroin for past few months. The status report gives criminal

history of the petitioner in respect of registration of three cases against him under the NDPS Act.

Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case. It is also submitted that the

investigation in the FIR is complete. Nothing remains to be recovered from the petitioner. The challan stands already presented before the Court of

Competent Jurisdiction on 4.5.2021. All the other co-accused have already been enlarged on bail. Learned Trial Court had not granted the bail to the

petitioner primarily on the ground of criminal history of the petitioner.

Learned Additional Advocate General has opposed the present petition citing criminal history of the petitioner, as reflected in the status report.

As per the prosecution, the petitioner was involved in procuring 9.48 grams of Heroin, recovered from co-accused Rahul Dhiman. The quantity of

the contraband though falls in the commonly known as ‘inter mediate category’ but is nearer to ‘5 grams’ notified as small quantity under

the Act. The rigors of Section 37 of the Act are, therefore, not applicable to the instant case. All the other co-accused i.e. Rahul Dhiman, Rahul

Malya and Ganesh have been enlarged on bail. The status report cites three cases registered against the petitioner under the NDPS Act, however, the

quantity of contraband involved therein is either ‘small’ or less than ‘small’ quantity notified under the NDPS Act. To ensure that

petitioner does not involve himself in future in offences under the NDPS Act, stringent conditions can be imposed upon him. The cumulative reading of

the documents on record, at this stage, reflects the petitioner to be a drug addict and not the drug peddler. The petitioner is aged 23 years and is stated

to be a local resident of Ward No.5, Kasba Bazar Rampur, Tehsil Rampur Bushhar, District Shimla. He is in custody w.e.f. 13.03.2021. His further

incarceration more so in the present COVID-19 pandemic is not going to serve any fruitful purpose. Accordingly, the present petition is allowed and

petitioner is ordered to be released on bail in FIR No.53/2021, dated 10.03.2021, registered under Sections 21 & 29 of Narcotic Drugs and

Psychotropic Substances Act, 1985 at Police Station Rampur Bushhar, District Shimla, H.P.. on his furnishing personal bond in the sum of Rs.50,000/-,

with one local surety in the like amount, to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station, subject to the

following conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii) . Petitioner will not leave India without prior permission of the Court.

(iv) . Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in

the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail,

PAN Card, Bank Account Number, if any.

(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It

is open for the Investigating Agency to move appropriate application in that regard.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Any observation here in above shall not be taken as an expression on merits of the case and learned Trial Court

shall decide the matter uninfluenced by any of observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.