Suresh Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police of Police Station Kala Amb, District Sirmour, H.P. registered an F.I.R. No. 117 of 2023 dated 30.07.2023, under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).

As per the prosecution, the police searched the house of the petitioner and his wife Babli and recovered 31 grams of heroin from the rack of the double bed in the room, where Babli used to sleep. The police also recovered currency notes, half-used silver foil and a syringe. The police arrested the petitioner. The petitioner is innocent and he was falsely implicated. The police have referred to some cases against the petitioner but the petitioner has been acquitted in all the cases. The prosecution has cited 23 witnesses and the completion of the trial is likely to take some time. The c0-accused has already been released and no useful purpose would be served by detaining the petitioner in judicial custody. He is ready and willing to join the investigation and would abide by all the terms and conditions, which may be imposed by the Court upon him. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

The State has filed a status report asserting that the police party was present at Sainwala when a secret information was received that the petitioner was selling narcotics. Information was reduced to writing and the same was sent to Supervisory Officer. A search party was constituted and search of the house of the petitioner was conducted. Petitioner, his wife Babli and co-accused Aditya and Gopal were found in the house. Syringes, silver foil, currency notes and 31 grams of heroin were recovered from the room where the wife of the petitioner was sleeping. The police arrested the occupants including the petitioner and seized the articles. The petitioner,Aditya and Gopal said on enquiry that Babli used to supply heroin to them. As per the report of the analysis, the substance recovered from the house was Diacetyl morphine (heroin). ₹ 10 and ₹ 20 currency notes and syringes contained traces of Diacetyl morphine (heroin). The petitioner supplies heroin to the people of the area. Six cases were registered against the petitioner. The petitioner was acquitted in five cases. He was convicted in one case and he was sentenced to pay a fine ₹3000/.Therefore, it was prayed that the petition be dismissed.

I have heard Mr. Karan Kapoor, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.

Mr. Karan Kapoor, learned counsel for the petitioner submitted that the petitioner was falsely implicated in the present case. The prosecution has relied upon the registration of six FIRs against the petitioner; however, in five cases the petitioner has been acquitted, therefore, no fruitful purpose would be served by detaining the petitioner in custody. He prayed that the petitioner be released on bail.

Mr. Jitender Sharma, learned Additional Advocate General submitted petitioner was found in possession of heroin and was involved in supplying the Heroin to various people. The consumption of narcotics adversely affects the younger 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 Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 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 have 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 Dharamraj2023 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.’

As per the status report, the petitioner has been involved in six cases, out of which he has been acquitted in five cases and he was sentenced to pay a fine of ₹3000/- in one case. The imposition of a fine shows that the offence against the petitioner was not serious so as to justify his detention, therefore, the registration of F.I.R. against the petitioner cannot be considered to be a circumstance against the petitioner.

The police asserted in the Status report that the petitioner is a drug addict and his wife used to supply heroin to him and various people of the area. The status report shows that the petitioner is a victim of the circumstance and not a drug peddler. A certified copy of the order of the learned Special Judge-II, Sirmour, at Nahan shows that the learned Special Judge-II, Sirmour, at Nahan has already released the co-accused, namely, Gopal Singh and Aditya and denied the bail to the petitioner because of the pendency of the cases. Learned Special Judge-II, Sirmour, at Nahan ignored that the cases had resulted in acquittal and there was no criminal case against the petitioner. Hence, the petitioner is entitled to be released on bail based on the principle of parity. Hence, thepresent petition is allowed. The bail petitioner is ordered to be enlarged on bail, subject tohis furnishing bail bonds in the sum of ₹ 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail the petitioner will abide by the following conditions:

(i) The petitioner will attend the trial on each and every date of hearing and if he is unable to do so, he will seek an exemption from the court by filing an appropriate application,

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

(iii) The petitioner shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the I.O,/SHO of the concerned police station and the 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 clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.

A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.