Vishal Masih vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is an accused in FIR No. 31/20, dated 21.4.2020, registered under Sections 15, 21 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 ('NDPS Act' in short) and Section 188 of the Indian Penal Code registered at Police Station, Parwanoo.

2(i). The case against the petitioner, as per the status report, is that on 20.4.2020 at around 11:05 P.M., while the police party was on nakabandi/patrolling duty near Timber Trail Resort, Parwanoo, a loaded truck bearing No. HP-16A-9659 came from Pinjore side. It had four occupants. Besides its driver Neeraj Sharma, the other occupants were Kuldip, Adarsh Sharma and Vishal (petitioner.) These four persons, on inquiry by the patrolling party personnel, could not give any satisfactory reply about their movements during imposition of curfew on account of Covid-19 pandemic. The occupants of the vehicle appeared baffled, raising suspicion of the patrolling party. Search of the vehicle was carried out in accordance with law yielding recovery of brown coloured substance in a polythene, which in turn was kept inside another white coloured polythene lying near the gear box of the truck. The substance, so recovered, was determined as Poppy Husk/Poppy Straw. The substance weighed 1.138 K.grams on the electronic scale. All codal formalities were completed resulting into registration of instant FIR against all the above named four accused including the petitioner. The petitioner alongwith other co-accused was arrested on 21.4.2020.

2(ii). During the course of the investigation, the petitioner statedly recorded his statement under Section 27 of the Indian Evidence Act. On the basis of this statement and on the identification of the spot by the petitioner, 18.45 grams of Heroin was recovered near a culvert adjoining to the newly constructed houses around Timber Trail Resort. The procedure prescribed in law was complied with for effecting the recovery of 18.45 grams of Heroin.

2(iii). According to the status report except for the petitioner, the other three accused namely Neeraj Sharma, Kuldip and Adarsh Sharma have already been enlarged on bail by learned Special Judge, District Solan. The petitioner, however, has not been released on bail since another FIR No. 89/20 is also registered against him at Police Station, Solan wherein also he is in custody w.e.f. 23.4.2020.

Learned counsel for the petitioner submitted that quantity of Poppy Husk/Poppy Straw allegedly recovered from the truck occupied by the petitioner along with other three co-accused is 'intermediate', therefore, provisions of Section 37 of the NDPS Act are not attracted. The other three co-accused have already been released on bail. In so far as recovery of 18.45 grams of Heroin on the basis of the disclosure statement of the petitioner is concerned, learned Counsel submitted that this recovery is actually interconnected with FIR No. 89/2020 registered at Police Station, Solan. The case against the petitioner with respect to recovery of Heroin in both the FIRs is that against Rs.40,000/- allegedly handed to him by one Suresh Thakur, he (petitioner) had procured 40 grams Heroin from a Nigerian national in Delhi. Out of this 40 grams, petitioner had handed over 20 grams of Heroin through one Vicky to Suresh Thakur and remaining quantity was kept by him. It is out of this remaining quantity, which was allegedly kept by the petitioner that the police recovered 18.45 grams near a culvert around Timber Trial Resort. Petitioner is not a drug peddler. Apart from these two FIRs, which are interconnected in respect of recovery of Heroin, there is no criminal history of the petitioner under the NDPS Act. Therefore, learned counsel for the petitioner prayed for release of the petitioner on bail.

Per contra, learned Assistant Advocate General opposed the release of the petitioner on bail on the ground that petitioner had procured 40 grams of Heroin allegedly from an un-known Nigerian national in Delhi, brought it to the respondent- State during lockdown and further handed part of it to one Suresh Thakur. In view of the nature of allegations levelled against the petitioner, he does not deserve to be enlarged on bail.

The quantity of Poppy Husk/Poppy Straw allegedly recovered from the petitioner along with other co-accused and that of Heroin allegedly recovered at the instance of the petitioner is though more than 'small' but less than 'commercial' quantity notified under the NDPS Act, therefore, rigour of provisions of Section 37 of the Act will not be attracted. In so far as the recovery of 1.138 Kg. of Poppy Husk/Poppy Straw is concerned, it is admitted position that other three co-accused have already been enlarged on bail by learned Special Judge, Solan. In so far as the recovery of 18.45 grams of Heroin at the instance of petitioner is concerned, it may be noticed here that petitioner has been granted bail in the connected FIR No. 89/2020. Both the FIRs are inter connected in respect of procurement of 40 grams of Heroin and recovery of the same in parts in these two FIRs. But for these two FIRs, the status report does not reflect any previous involvement of the petitioner under the NDPS Act. One case No. 182/2013 registered against the petitioner at Police Station, Sadar, Solan under Sections 368, 506 and 34 of Indian Penal Code is stated to be pending consideration before the Court of competent jurisdiction. Investigation in the instant case is complete. Challan stands already presented before learned Sessions Judge, Solan on 15.6.2020. In such circumstances, no fruitful purpose will be served by continuing the petitioner in custody any further. However, strict condition is imposed that in case the petitioner is found to be involved in any FIR registered for offences under the NDPS, then the instant bail is liable to be cancelled and this shall also be considered as a negative factor for consideration of his future bail applications, if any.

In view of the foregoing observations, the present bail petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bond of Rs. 70,000/- with one local surety in the like amount to the satisfaction of 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. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called 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 by 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 the petitioner arraigned as an accused in future, in any FIR under NDPS Act, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard and that fact will also be considered as a negative factor in future bail application(s) of the petitioner.

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 above observations.

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

The parties shall not insist upon for obtaining certified copy of this order and shall download the same from the website of the High Court. However, the Registry is directed to send coy of this order to learned counsel for the parties through email subject to furnishing email addresses by them, if so required.