IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 909 of 2017 Date of decision: 18th July, 2017. . [ENTITY] Petitioner Vs. [ENTITY] Respondent Coram The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1. No. For the petitioner : Mr. [ENTITY], Advocate. For the respondent : Mr. [ENTITY] Deputy, r Advocate General. [ENTITY], Judge (Oral)
The petitioner has sought regular bail in FIR No. 99/2016, dated 3.7.2016, registered at Police Station, Dehra, Tehsil Jaswan, District Kangra, under [SECTION] of the [ACT] (for short the '[ACT]').
2. Respondent has produced the records of the investigation and has also filed the status report.
3. Brief facts of the case are that on 3.7.2016 ASI [ENTITY] alongwith other police officials was on patrolling duty within the jurisdiction of his police station. Around 8:30 P.M., at place Chintpurani near Jalandhar Dharamshala Inn two persons, namely, Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
[ENTITY] and [ENTITY] met them and in the meanwhile they noticed a person (accused) who was not having his left arm. Accused on seeing the police party unsuccessfully attempted to .
escape by running backwards. He was apprehended by the police, on quizzing he disclosed his name and identity. On suspicious police searched the accused, in presence of aforesaid witnesses, on which on polythene bag was recovered from his shirt's pocket, in which there was black stick shape substance. I.O. on smelling and on the basis of experience found this black substance to be charas. On weighment, by electronic scale, charas was found to be 100 grams. After weightment, charas was sealed in the same manner in a cloth parcel with three seals of impressions 'O'. Sample impression of seal was also taken and NCB forms in triplicate were filled up on the spot. Impressions of seal 'O' were also affixed on NCB forms in triplicate. The information of the case was sent to police station Dehra, on the basis of which FIR No. 99/2016 for the offence punishable under [SECTION] of the [ACT] was registered.
4. I.O. prepared the spot map, arrested the accused and gave its information to his son in terms of [SECTION] of the Act. During investigation, accused made a disclosure statement, on the basis of which from his shop at place main Bazaar Chintpurani, charas weighing 110 grams and currency notes amounting to Rs.30,500/- and coins weighing approximately 80 Kgs. were 3
recovered. Charas, currency notes and coins were sealed in three different parcels respectively with seal impression 'O'. Thereafter, the residential premises of the accused was searched. From the room of .
first floor, a polythene bag containing charas was recovered. From the courtyard, two polythene bags were digged out, one was containing charas and the other was containing opium. On weighment charas was found to be 800 grams whereas the opium to be 600 grams. Accused digged out one more polythene bag from his courtyard in which there was 590 grams of charas. Currency notes amounting to Rs.1,03,850/-, 3 US dollars and 6 gunny bags of coins were also recovered from the house of the accused. Police also seized several gold and silver ornaments from the house of the accused. I.O. recorded the statement of the witnesses. Case property was produced before Ld. ACJM, Dehra, who certified the inventory in terms of [SECTION] of the Act. The case property thereafter sent to SFSL Junga for chemical examination.
5. Mr. [ENTITY], learned counsel for the petitioner vehemently argued that the petitioner is having 80% disability due to Loco Motor Impaired above elbow amputation (Lt) side and is unable to follow even his daily routine. He would further submit that his wife is suffering from various diseases and therefore require constant care. The lone daughter of the petitioner is school going and there is none to look-after her. The petitioner was the sole bread 4
earner of the family and is having roots in the society and there is no chance of his fleeing from justice or not making himself available during the trial.
6. On the other hand, Mr. [ENTITY], learned Dy. A.G. vehemently opposed the bail application on the ground that the offence of the petitioner is of an extremely serious offence and two contrabands were found in the possession of the petitioner/accused, which indicate that he probably is a peddler.
I have considered the rival contentions of the parties and have gone through the records of the investigation.
7. At the outset, it may be observed that the prosecution case is pending trial and, therefore, it would not be appropriate for this Court to render firm finding. Since the petitioner is alleged to be found in possession of two contrabands, he can only be granted bail in case prima facie his presence at the spot is disputed or not proved. This is not even the case set up by the petitioner. He only claims his innocence and states that he has been falsely implicated in this case.
8. It has been categorically held by the Hon'ble apex court that courts exercising the bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For in that manner, the principle of "presumption of innocence of an accused" gets 5
jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all same elements have always understood that such views are tentative and not final, so as to .
affect the merit of the matter. Reference in this regard can be made to [PRECEDENT], wherein the Hon'ble Supreme Court has held as follows:-
"6. As embedded in the criminal jurisprudence obtaining in this country, Courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all same elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on this part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed."
9. It is further to be remembered that at the stage of dealing with the cases regarding bail, a detailed examination of evidence and elaborate documentation of the merits of the case are not to be undertaken. The court is not required to discuss the merits and demerits of the case at this stage. It is only required to satisfy itself with (i) the nature of accusation and the severity of the punishment in case of conviction and the nature of supporting 6
evidence; (ii) reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant and (iii) prima facie satisfaction of the court in support of the charge and .
any order dehors such consideration suffers from non- application of mind. When all the three parameters are taken into consideration, it is prima facie established that the nature of accusation against the petitioner and the severity of punishment for which he has been charged is extremely grave and serious. Moreover the apprehension of the respondent that in case the petitioner is let off on bail, it will be difficult to procure his presence since he is resident of Delhi cannot be said to be ill-founded. In fact, one of the considerations for grant of bail is also to secure the presence of the accused.
10. The drug abuse is a social malady. The drug addicts eat into the vitals of the society, but drug trafficking not only eats into the vitals of the economy of a country but illicit money generated by drug trafficking is often used for illicit activities. The constitution Bench of the Hon'ble Supreme Court in [PRECEDENT] has observed as follows:-
"4. Drug abuse is a social malady. While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. There is no doubt that drug trafficking, trading and its use, which is a global phenomena and has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a 7
country. It has the effect of producing a sick society and harmful culture. Anti-drug justice is a criminal dimension of social justice. The [ACT] which was held in Vienna, .
Austria in 1988 was perhaps one of the first efforts, at an international level, to tackle the menace of drug trafficking throughout the comity of nations. The Government of India has ratified this Convention."
11. If we see the effect of the drugs in the society then lacs of young people are becoming addicted to drugs which is ultimately ruining the young generation and they are destroying the wealth of the nation. It is not only the young boys but even the girls who are being made addicted to some drug or the other. The operators of such racket are compelling them to indulge in anti- social and antinational activities and victims of such drugs are having no option but to surrender to the dictates of such operator because of their dependency and addiction to the drugs. By adopting such means the operators of such drug rackets are exploiting the young generation which is the wealth and hope of our nation. Therefore, the offence for which the petitioner has been accused of is an offence not only against the society but against the nation and therefore, when there is a conflict between an individual and the society at large, then the law has always given primacy to the society, the State and the nation.
12. The upshot of the discussion made hereinabove is that the petitioner has not been able to carve out a case for grant of bail and accordingly, the present petition is dismissed.
13. Any observation made hereinabove 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 hereinabove Petition stands disposed of.
July 18, 2016 ([ENTITY]) r to ( [ENTITY] ), Judge