Tilak Raj vs State Of Himachal Pradesh

Anoop Chitkara, J

For possessing 5.84 grams of heroin by one Smt. Rajesh Kumari @ Toti, the petitioner, who apprehended his imminent arrest on being arraigned as an accused in FIR Number 123 of 2019, dated 29.07.2019, registered under Sections 21 & 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (herein after referred as the "NDPS Act"), in the file of Police Station Indora, Distt. Kangra, H.P., disclosing non-bailable offences, has come up before this Court under Section 438 Cr.PC, seeking anticipatory bail.

The status report stands filed. I had gone through the police file on 1.11.2019 to the extent it was necessary for deciding the present petition and on the same day after going through the same, it was returned to the learned Counsel appearing for the State. I have also heard Mr. N. S. Chandel, learned Senior Counsel assisted by Mr. Rajesh Verma, learned Counsel for the petitioner and Mr. Nand Lal Thakur, learned Additional Advocate General for the respondent/State.

The counsel for the petitioner states that the accused had joined the investigation as and when the Investigating Officer so directed him. Learned Additional Advocate General did not dispute this averment.

FACTS

The gist of the First Information Report and the investigation is as follows:

On 29.07.2019, a police party headed by ASI Sunil Kumar, was patrolling to detect cases of excise and narcotics. For the said purpose, they had gone towards Indora Bazaar in Distt. Kangra, when at about 11.05 a.m., near the bus stand, the Investigating Officer received a secret information from an informer that one Rajesh Kumari @ Toti indulges in the business of selling narcotics from her home and if her house is raided then a large quantity of contraband can be recovered. On this information, after completing the formalities, the Investigating Officer associated two independent witnesses of the locality and conducted search of her house which led to the recovery of 5.84 grams of heroin. During investigation the police concluded that the land on which the house of Rajesh Kumari @ Toti is constructed is owned by the petitioner Tilak Raj. The investigation further revealed that the petitioner was aware of the dealings of Rajesh Kumari in narcotic substance and despite that he provided his land to her to facilitate her drug business. Thereafter, the other procedural formalities were completed and the aforesaid F.I.R. came to be registered.

REASONING

Keeping in view the quantity of contraband, I am of the considered view that the judicial custody of the petitioner is not going to serve any purpose whatsoever and I am inclined to grant him bail on the following grounds:

(a) As per the mentioned at Sr. FIR, the substance involved in is Heroin, No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances.

(b) The quantity of drug involved is 5.84 grams (heroin), which is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.

(c) Pursuant to order dated 17.10.2019 the petitioner had filed an affidavit stating therein that no criminal case has been registered against him except the present one. The said affidavit is on record.

(d) In the status report, there is no mention of previous criminal history of the bail petitioner. The statement of the co-accused cannot be read in evidence.

(e) The petitioner had joined the investigation.

(f) The petitioner is a permanent resident of the address mentioned in the memo of parties. Therefore, his presence can always be secured.

(g) I am satisfied that no purpose will be served if the bail petitioner is sent to judicial custody.

(h) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. His custodial interrogation is not required at all.

In the result the present petition is allowed. In the event of arrest of the petitioner, he shall be released on bail, in connection with the above mentioned FIR, on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Arresting Officer, if not already furnished. The learned counsel for the petitioner as well as the attesting person shall explain the conditions of this bail to the petitioner.

The interim order dated 17.10.2019 is made absolute subject to further following conditions. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions:

a) The petitioner is directed to join the investigation as and when called by the investigating officer and the petitioner undertakes to appear before the investigating officer as and when directed to do so. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 a.m. and shall be let off before 5 pm.

b) The petitioner shall co-operate in the investigation.

c) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

d) The petitioner shall not hamper the investigation.

e) The petitioner undertakes not to threaten or browbeat the complainant or to use any pressure tactics.

f) The petitioner undertakes not to 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 from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

g) In case of the launching of the prosecution, the petitioner undertakes to attend the trial and to appear before the Court which issues the summons or warrants and shall furnish fresh bail bonds to the satisfaction of such Court.

h) In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment for more than 3 years, and in case the bail petitioner is arraigned as an accused in any case under the provisions of the NDPS Act, irrespective of the quantity, be it small quantity, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR and it shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper.

i) The petitioner shall either sell or deposit all the fire arms alongwith ammunition and arms licences, if taken, before the concerned authorities within 30 days from today.

It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.

Respondent shall send a copy of this order to S.H.O. of the concerned Police Station.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.

Petition stands allowed in the aforesaid terms.