Vicky vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

For possessing 6.22 grams of heroin, petitioner has been made an accused in FIR No. 47 of 2021, lodged on 04.04.2021 under Section 21 of the

Narcotic Drugs and Substance Act (hereinafter referred to as the Act), registered at Police Station Damtal, District Kangra, H.P.

Heard learned counsel for the parties and gone through the status report filed by the respondent-State.

According to the status report, a police party was on patrol duty on 04.04.2021 within the area of its jurisdiction. At about 3.40 p.m., it received a

reliable information about the bail petitioner being engaged in selling heroin in his home at village Chhani and that immediate raid of his home can lead

to recovery of a large quantity of heroin. On receipt of this information, provisions of Section 42(2) of the Act were complied with and independent

witnesses were also associated. The raiding party reached the spot and found the petitioner in his home. The procedure, as contemplated in law, was

followed while carrying out the search of the house. A purse was found from the bed-box, which had a polythene containing a light brownish white

coloured substance. With the help of the drug detection kit, the substance was determined as heroin and weighed 6.22 grams. The recovery of

contraband led to registration of the FIR. Petitioner was arrested on 04.04.2021 and since then he is in custody.

Learned counsel for the petitioner submitted that petitioner is innocent and has been falsely implicated in the FIR. He also argued that since the

contraband, allegedly recovered in the FIR, is not of commercial quantity, therefore, rigors of Section 37 of the Act are not attracted. Learned counsel

also submitted that though the petitioner has blemished past, however, the petitioner undertakes not to influence the prosecution witnesses and as well

as not to tamper the prosecution evidence against him. Learned counsel further states that petitioner shall abide by all the terms and conditions, which

may be imposed upon him in case of his enlargement on bail. While opposing the bail, learned Deputy Advocate General submitted that in case the

Court is inclined to grant bail to the petitioner, then the same be made subject to stringent conditions keeping in view the petitioner’s criminal

history.

The quantity of contraband cannabis, allegedly recovered from the petitioner’s home, was 6.22 grams. This, though falls in the commonly

known ‘intermediate quantity’, but is nearer to 5 gm. notified as small quantity under the Act. Therefore, rigors of Section 37 of the Act will not

be attracted. Status report indicates that petitioner has a criminal history. However, learned Deputy Advocate General, on the basis of instructions,

submitted that petitioner stands acquitted in three cases mentioned in the status report. In one case i.e. in FIR No. 232 of 2006, petitioner has been

convicted for the offence under Section 61 of the Excise Act and sentenced to undergo six months imprisonment. Presently, there are two cases

pending against the petitioner i.e. FIR No. 79 of 2019, registered on 09.08.2019 under Sections 341 and 323 of the Indian Penal Code at Police Station

Damtal, District Kangra, H.P. and another, FIR No. 231 of 2013, registered on 20.11.2013 under Section 15 of the NDPS Act at Police Station

Indora, District Kangra, H.P. for possessing 1.900 Kgs. Of ‘Bhukki’. Considering the present troubled times of COVID-19 pandemic viz-a-viz

facts of the case, where intermediate quantity of contraband nearing notified small quantity has been allegedly recovered from the petitioner, this

Court is inclined to grant bail to the petitioner subject to stringent conditions. The petitioner is in custody w.e.f. 04.04.2021. As per the status report,

investigation in the matter is almost complete. Nothing is to be recovered from the petitioner. The petitioner is local resident of VPO Chhani, Tehsil

Indora, District Kangra, H.P. and his presence can be secured in the trial. Considering criminal history of the petitioner, a strict condition is being

imposed upon him that in case he, in future, is found to be involved in any offence under the Act, then irrespective of the quantity of the contraband

involved, not only instant bail granted to him is liable to be cancelled, but this shall also be considered as a negative factor for consideration of his

future bail application(s), if any. Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his

furnishing personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand) with one local surety in the like amount to the satisfaction of the learned

trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-

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

law.

(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

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

(iv). The 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 the petitioner is put to trial, then he 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 the petitioner is arraigned as an accused in future, in any FIR under NDPS Act, then this bail is liable to be

cancelled. It shall also be considered as a negative factor for consideration of his future bail application(s), if any. 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. Learned trial Court shall decide the matter without being influenced by any of the observations made above.

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

Copy dasti.