Intermediate quantities of narcotic drugs will not be subject to rigours of Section 37 of NDPS Act: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 06 06 CIS 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 9921Date of Decision: 04.06.2021.Arvind Kumar ...Petitioner.VersusState of Himachal Pradesh ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 No .____________________________________________________________________For the petitioner:Mr. Sanjeev Kumar Suri Advocate. For the respondent:Mr. Nand Lal Thakur Additional Advocate General.THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections58 20219.4.2021Hamirpur District Hamirpur H.P.20 29 61 85 ofNarcotics Drugsand PsychotropicSubstances Act 1985.Anoop Chitkara Judge A habitual offender under Narcotics Drugs and PsychotropicSubstances Act 1985is once again in prison w.e.f. 9 4 2021 forpossessing 334 grams of charas and has now come up before this Court underSection 439 of Cr.PC seeking bail on the grounds that the quantity of contrabandallegedly seized is intermediate quantity and does not restrict bail because thequantity greater than 1 kilogram of charas falls in the category of the commercialquantity hence the restrictions for bail imposed in Section 37 of NDPS Act do notapply and in the present case he is in custody for a considerable time.2.Earlier the petitioner had filed the following bailpetition:1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 06 CIS 2Bail application No. 521 before the Court of learned Special Judge Hamirpur H.P. stood dismissed on 17.05.2021.3. Para No.6 of the bail petition and status reportmention the following criminal history:(a)That FIR No.135 2020 for theoffence under Sections 20 & 29 ofNDPS Act is pendingfor adjudication before the learned TrialCourt. 4. Briefly the allegations against the petitioner arethat on 9.4.2021 the police officials were patrolling in theirjurisdiction. At around 6.50 P.M. while checking traffic at Dhaned the police officials noticed one Alto Car coming from Dhanedside which was signaled to stop. The driver of the car becameperplexed and further police officials asked him to show thedocuments then he became more perplexed. One person was alsositting on the front seat of the car. The Investigator got suspiciousfor some contraband being concealed in the car and he intended tosearch it. Thus he stopped one truck and associated his driver asan independent witness. Local Pradhan was also associated as awitness. In the presence of independent witnesses InvestigatingOfficer inquired about the name of the driver who revealed hisname as Rajiv Kumar. The person sitting on the adjacent seatrevealed his name as Arvind Kumar petitioner herein. On thesearch of the car from its dash board the police recovered 334grms of charas. After that the Investigator arrested both thepersons and conducted other procedural requirements. Based onthese allegations the Police registered the FIR mentioned above. Hig h C o urt of H.P on 06 06 CIS 3 5. Ld. Counsel for the petitioner contends thatincarceration before the proof of guilt would cause grave injusticeto the petitioner and family.6. On the contrary the contention on behalf of theState is that the accused is a proven habitual offender and givenhis past conduct he is likely to repeat the offence. He furtherinsists that if this Court is inclined to grant bail then such a bondmust be subject to very stringent conditions.REASONING:7. The quantity of the contraband is 334 grams ofcharas which is just 1 3rd of commercial quantity. The petitioner isin custody for around two months and as such furtherincarceration would not be justified. 8. In Sami Ullaha v Superintendent NarcoticControl Bureau 16 SCC 471 the Hon’ble Supreme Courtholds that in intermediate quantity the rigors of the provisions ofSection 37 may not be justified. In Sunny Kapoor v State of HP CrMPM 21620 this Court observed that whenthe quantity is less than commercial the rigors of Section 37 ofthe NDPS Act will not attract and factors become similar to bailpetitions under regular statutes. Thus when the maximumsentence cannot exceed ten years and the accused is yet to beproved guilty the grant of bail is normal unless the Prosecutionpoints towards the exceptional circumstances negating the bail. 9. The possibility of the accused influencing theinvestigation tampering with evidence intimidating witnesses and the likelihood of fleeing justice can be taken care of byimposing elaborative and stringent conditions. In SushilaAggarwal 5 SCC 1 Para 92 the Constitutional Benchheld that unusually subject to the evidence produced the Courtscan impose restrictive conditions.10. In Sunny Kapoor v State of HP CrMPM21620 this Court after considering the Hig h C o urt of H.P on 06 06 CIS 4 relevant judicial precedents observed that in reckoning the numberof cases as criminal history the prosecutions resulting in acquittalor discharge or when Courts quashed the FIR the prosecutionstands withdrawn or Prosecution filed a closure report cannot beincluded. The criminal history must be of cases where the accusedwas convicted including the suspended sentences and all pendingFirst Information Reports wherein the bail petitioner standsarraigned as an accused. While considering each bail petition ofthe accused with a criminal history it throws an onerousresponsibility upon the Courts to act judiciously withreasonableness because arbitrariness is the antithesis of law.Although crime is to be despised and not the criminal yet for arecidivist the contours of a playing field are marshy and graverthe criminal history slushier the puddles.11. One similar case is also pending against thepetitioner but this Court is inclined to grant a final opportunity tothe petitioner to reform. It is clarified that in case he repeats theoffence then it would be taken seriously. 12. Without commenting on the case s merits giventhe investigation stage the period of incarceration alreadyundergone and the circumstances peculiar to this case thepetitioner makes a case for release on bail.13. Given the above reasoning the Court isgranting bail to the petitioner subject to strict terms andconditions which shall be over and above and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC 1973.14. In Manish Lal Shrivastava v State ofHimachal Pradesh CrMPM No. 17320 after analysingjudicial precedents this Court observed that any Court grantingbail with sureties should give a choice to the accused to eitherfurnish surety bonds or give a fixed deposit with a further optionto switch over to another. Hig h C o urt of H.P on 06 06 CIS 5 15. The petitioner shall be released on bail in theFIR mentioned above subject to his furnishing a personal bond ofRs. Ten thousandand shall furnish two suretiesof Rs. Twenty five thousandeach to thesatisfaction of the Judicial Magistrate having the jurisdiction overthe Police Station conducting the investigation and in case of non availability any Ilaqa Magistrate. Before accepting the sureties the concerned Magistrate must satisfy that in case the accusedfails to appear in Court then such sureties are capable to producethe accused before the Court keeping in mind the Jurisprudencebehind the sureties which is to secure the presence of the accused.16. In the alternative the petitioner may furnisha personal bond of Rs. Ten thousandand fixeddeposit(s) for Rs. Ten thousand onlymade infavour of Chief Judicial Magistrate of the concerned district. a)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. HDFCBank ICICI Bank Kotak Mahindra Bank etc. with the clause of automaticrenewal of principal and liberty of the interest reverting to the linked account. b)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. c)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. d)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. e)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation be sent either by e mail or by post courier about the fixed deposit whether made on paper or in any other mode along with its number as well asFIR number. f)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. Hig h C o urt of H.P on 06 06 CIS 6 g)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. h)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returnedto the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 17. The furnishing of the personal bonds shall bedeemed acceptance of the following and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance to the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms of Section 437 A CrPC.b)The attesting officer shall on the reverse page of personal bonds mention the permanent address of the petitioner along with the phonenumber(s) WhatsApp numbere mailand details of personalbank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall within thirty days of his release from prison procure a smartphone and inform its IMEI number and other details to theSHO I.O. of the Police station mentioned before. He shall keep the phonelocation GPS always on the “ON” mode. Before replacing his mobile phone he shall produce the existing phone to the SHO I.O. of the police station andgive details of the new phone. Whenever the Investigating officer asks him toshare his location then he shall immediately do so. The petitioner shall neitherclear the location history nor format his phone without permission of the Hig h C o urt of H.P on 06 06 CIS 7 concerned SHO I.O. He shall also not clear the WhatsApp chats and callswithout producing the phone before the concerned SHO I.O.d)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.e)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.f)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons bailable and non bailable warrants the accused through E Mailand any instant messaging service such as WhatsApp etc.No. 3 2020 I.A. No. 48461 2020 July10 2020]: i.At the first instance the Court shall issue the summons. ii.In case the petitioner fails to appear before the Court on the specifieddate in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.18. Given the criminal history the petitioner shall surrender all firearms ammunition if any along with the arms license to the concerned authority within 30days from today. However subject to the provisions of the Indian Arms Act 1959 Hig h C o urt of H.P on 06 06 CIS 8 the petitioner shall be entitled to renew and take it back in case of acquittal in thiscase.19. During the trial s pendency if the petitioner repeats or commits anyoffence where the sentence prescribed is more than seven years or violates anycondition as stipulated in this order it shall always be permissible to the respondentto apply for cancellation of this bail. It shall further be open for any investigatingagency to bring it to the notice of the Court seized of the subsequent application thatthe accused was earlier cautioned not to indulge in criminal activities. Otherwise thebail bonds shall continue to remain in force throughout the trial and after that interms of Section 437 A of the CrPC.20. Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.21. In case the petitioner finds the bail condition(s) as violatingfundamental human or other rights or causing difficulty due to any situation thenfor modification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.22. This order does not in any manner limit or restrict the rights of thePolice or the investigating agency from further investigation per law.23. Any observation made hereinabove is neither an expression of opinionon the merits of the case nor shall the trial Court advert to these comments.24.In return for the protection from incarceration the Court believes thatthe accused shall also reciprocate through desirable behavior.25. There would be no need for a certified copy of this order forfurnishing bonds. Any Advocate for the petitioner can download this order alongwith the case status from the official web page of this Court and attest it to be a truecopy. In case the attesting officer or the Court wants to verify the authenticity suchan officer can also verify its authenticity and may download and use the downloadedcopy for attesting bonds.The petition stands allowed in the terms mentioned above.Copy Dasti. Hig h C o urt of H.P on 06 06 CIS 9 Judge4th June 2021

Summary: Section 37 of the Narcotic Drugs and Psychotrophic Substances Act 1985 (NDPS) makes offences cognizable and non-bailable, however this is only applicable in cases with commercial quantities of the substance and not for intermediate or small quantities. A single member bench of Justice Anoop Chitkara of the Himachal Pradesh High Court passed a judgement in the case of Arvind Kumar v The State of Himachal Pradesh [Cr.MP(M) No: 990 of 2021] on 4th June 2021 related to the possession of intermediate quantities of narcotic drugs. The petitioner, Arvind Kumar is a habitual offender under the Narcotic Drugs and Psychotrophic Substances Act 1985; he was arrested on 9th June 2021 for possession of 334 grams of Charas. In the case of Charas, only quantities above 1kg can be considered as a commercial quantity. The petitioner approached the high court for bail in this matter contending that incarceration before his guilt was established would be a grave injustice to both him and his family and that the court should grant him bail as the matter was still being adjudicated upon. Whereas the state contended that his record as a habitual offender should be considered and he should be denied bail due to the same. The court cited the case of Sami Ullaha v Superintendent Narcotic Control Bureau, [(2008) 16 SCC 471] where the Supreme Court declared that rigours of the provisions of Section 37 of the NDPS act cannot to be justified in cases of intermediate possession of narcotic substances. The case of Sunny Kapoor v State of Himachal Pradesh [CrMPM 2168 of 2020] was also cited, where it was established that any quantity that is less than commercial does not warrant the rigours of Section 37 of the NDPS meaning the grant of bail is acceptable and the accused cannot be sentenced to more than 10 years of imprisonment. The court noted that the quantity of charas which the petitioner was in possession of was only around one third of the commercial quantity and still fell under intermediate quantity, however decided to impose certain conditions to the bail granted such as bond, sureties, regular attendance in court and full cooperation in the investigation of the case.