IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1633 of 2019 Decided on: 19th November, 2019 .
[ENTITY] Petitioner Versus [ENTITY] Respondent Coram
The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. [ENTITY] and Mr. [ENTITY], Advocates.
For the respondent/State: Mr. [ENTITY], Additional Advocate General, with Mr. [ENTITY] and Mr. [ENTITY], Deputy Advocates General.
SI [ENTITY], Investigating Officer, Police Station Kullu, District Kullu, H.P. [ENTITY], Judge. (oral).
The present bail application has been maintained by the petitioner under [SECTION] of the [ACT] seeking his release in case FIR No. 274 of 2018, dated 01.11.2018, under [SECTION] of the [ACT], registered in Police Station Kullu, District Kullu, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. The petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful Whether reporters of Local Papers may be allowed to see the judgment? Yes.
purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.
3. Police report stands filed. As per the prosecution story, on .
01.11.2018, at about 06:15 p.m., a police team was on patrol duty at Suma Ropa Jungle. Police spotted two persons sitting on a parapet and a bag was lying in between them. On seeing police, the said persons hurriedly pushed the said bag behind the parapet and stood up. On suspicion, the police inquired the names of these persons, who disclosed their names as [ENTITY] and [ENTITY]. The persons were asked about the bag, but they could not give any satisfactory reply and looked baffled. Police had the suspicion of narcotics, but as the place was secluded, no independent witness could be associated. Thereafter, the police checked the bag and found some black substance enwrapped in transparent polythene, which was found to be charas. On weighment, the contraband was found to be 3,026 grams, i.e., 3 kgs and 26 grams. Thereafter, the police completed all the codal formalities and both the accused persons were arrested. During the course of investigation both the accused persons divulged that they prepared and collected the contraband themselves in the jungles for 4-5 months. The chemical report revealed that the contraband is charas. As per the police, on 18.02.2019 challan was presented in the learned Trial Court and now the case is listed on 20.11.2019 examination of PWs 1 to 3.
Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner committed a serious crime. The quantity recovered from the petitioner is commercial quantity. The trial is in initial stage and there is possibility that in case at this stage if the petitioner is enlarged on bail, .
he may flee from justice, as he resident of Nepal. The petitioner can also tamper with the prosecution evidence, so his application be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. Learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. He has argued that the resin content is less than commercial quantity. The petitioner is ready and willing to abide by the terms and conditions of bail, in case granted. He has further argued that keeping in view the overall aspects of the case, the petition be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious offence and commercial quantity of charas was recovered from him. He has further argued that trial is in initial stage and in case the petitioner is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has further argued that petitioner could jump over the bail, in case granted. He has prayed that the bail application of the petitioner be dismissed.
6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, keeping in view the fact that the investigation is complete, challan stands presented in the learned Trial Court and the custody of the petitioner is not at all required by the police. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so the application be allowed and the petitioner be enlarged on bail. The learned Counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court rendered in [ENTITY] vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 Supreme Court Cases 161 and in [PRECEDENT]. He has argued that the matter is still under consideration, so the petitioner be released on bail.
7. As far as the facts of the present case are concerned, the petitioner was found involved in commercial quantity of contraband and he is behind the bars. The Hon'ble Supreme Court in [ENTITY] vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 Supreme Court Cases 161, held as under:
"15. It appears from the Statement of Objects and Reasons of the amending Act of 2001 that the intention of the legislature was to rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterred sentence, the addicts and those who commit less .
serious offences are sentenced to less severe punishment. Under the rationalized sentence structure, the punishment would vary depending upon the quantity of offending material.
Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm and contains 0.2% of heroin or more would be punishable under [SECTION] of the [ACT], because the intention of the legislature as it appears to us is to levy punishment based on the content of offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gm of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gm is mixed with 50 kg of powdered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appears to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment."
The case of the petitioner is not that something was mixed with the contraband recovered or the contraband recovered was mixed with some external substance, so it cannot be said that the contraband was of .
commercial quantity, as it was mixed with some other substance.
Admittedly, the present is a case with respect to recovery of charas and the judgment (supra) is qua recovery of opium, so the judgment is not applicable to the facts of the present case.
8. Noticeably, the Hon'ble Supreme Court in [PRECEDENT], vide paras 22 and 23, has held as under:
"22. Thus, as the case falls under [SECTION], no further consideration is required on the issue. More so, opium derivatives have to be dealt with under [SECTION], so in case of pure opium falling under [SECTION], determination of the quantity of morphine is not required. [SECTION] is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity.
23. The judgment in [ENTITY] (Supra) has dealt with heroin i.e., Diacetylmorphine which is an "Opium Derivative" within the meaning of the term as defined in [SECTION] of the [ACT] and therefore, a 'manufactured drug' within the meaning of [SECTION] of the [ACT]. As such the ratio of the said judgment is not relevant to the adjudication of the present case."
9. Further more, a Co-ordinate Bench of this High Court in Sandeep Vs. [ENTITY], Cr.MP(M) No. 1608 of 2018, has held as under:
"22. In case titled as [ENTITY]'s case the Apex Court was dealing with recovery of 7.10 kkilograms opium. In this case, the Apex Court had held that the ratio of [ENTITY]'s case is not applicable for opium. Relevant observations of the Apex Court are as under:-
"23. The judgment in [ENTITY] has dealt with heroin i.e. diacetylmorphine which is an "opium derivative"
within the meaning of the terms as defined in [SECTION] of the [ACT] and therefore, a "manufactured drug" within the meaning of [SECTION] of the [ACT]. As such the ratio of the said judgment is not relevant to the adjudication of the present case.
26. Thus, the aforesaid r judgment in [ENTITY] has no application in the instant case as it does not relate to a mixture of narcotic drugs or psychotropic substances with one more substances"
23. Full Bench of this Court in [ENTITY]'s case has held that charas is a resin mass and presence of resin in stuff, unless there being any evidence qua the nature of the natural substance, entire ass has to be taken as charas."
10. Now, it would be apt to extract [SECTION] of the [ACT], which is as under:
37. Offences to be cognizable and non-bailable.
(1) Notwithstanding anything contained in the [ACT]
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under [SECTION] or [SECTION] or [SECTION] and also for offences involving commercial quantity] shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the .
application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the [ACT] or any other law for the time being in force, on granting of bail."
11. In view of the above, the judgment rendered by Hon'ble Supreme Court in [ENTITY] vs. Intelligence Officer, Narcotic Control Bureau, (2008) 5 Supreme Court Cases 161, is of no help to the petitioner and the same is not applicable to the facts of the present case. In fact, the rigors of [SECTION] of the [ACT] are applicable to the facts of the present case. Further this Court finds that the petitioner cannot be granted bail, as the commercial quantity of charas was recovered from him.
Otherwise also the trial is in its initial stage and the petitioner is likely to flee from justice in case he is granted bail and he is likely to tamper with the prosecution evidence.
12. After exhaustively discussing the facts and the settled position of law, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. The petition which sans merits, deserves dismissal and is accordingly dismissed.
14. Needless to say that the observations made hereinabove shall not be construed as an opinion expressed on the merits of the main case, which shall be adjudicated on its own by the learned Trial Court and the .
decision rendered in this petition shall have no bearing on the same.
([ENTITY]) 19th November, 2019 Judge (virender) r to