Himachal Pradesh High Court

Yog Raj Rana vs State Of Himachal Pradesh on 24 September, 2021

Bench: Satyen Vaidya

REPORTABLE/NON-REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

.
ON THE 24th DAY OF SEPTEMBER, 2021

BEFORE
HON'BLE MR. JUSTICE SATYEN VAIDYA

CRIMINAL MISCELLENOUS PETITON (MAIN) NO. 1493 OF 2021
Between:-
SAINA DEVI AGED 42 YEARS WIFE OF SH. YOG RAJ
RANA, RESIDENT OF WARD NUMBER 03, TAMHOL

POSTOFFICE RAILA, SUB TEHSIL SAINJ, DISTRICT KULLU,
HIMACHAL PRADESH.

PRESENTLY IN JUDICIAL CUSTODY AND CONFINED IN

DISTRICT JAIL KULLU, DISTRICT KULLU, HIMACHAL
PRADESH.

THROUGH HER HUSBAND

YOG RAJ RANA, AGED 43 YEARS SON OF TIKH RAM,
RESIDENT OF WARD NUMBER 03, TAMHOL, POST OFFICE
RAILA, SUB TEHSIL SAINJ, DISTRICT KULLU, HIMACHAL ...PETITIONER
PRADESH.

(BY SH. YADVINDER GUPTA AND MR. BUPINDER SINGH

AHUJA, ADVOCATE)

AND

STATE OF HIMACHAL PRADESH THROUGH SECRETARY(HOME) TO
THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA HIMACHAL
PRADESH. ...RESPONDENT

(BY SH. RAJINDER DOGRA, SR. ADDL. A.G., WITH SH.
HEMANSHU MISRA, ADDITIONAL ADVOCATE GENERAL
Reserved on : 17.09.2021
Decided on : 24 .09.2021

_________________________________________________________________
This petition coming on for hearing this day, the Court has
passed the following:-

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ORDER

Petitioner is accused in case registered vide F.I.R. No. 14 of 2021

dated 27.03.2021, registered at Police Station Sainj, District Kullu, Himachal

Pradesh, under Sections 20, 25 and 29 of the Narcotics Drugs and

Psychotropic Substances Act, 1985 (for short, "NDPS Act").

2. Petitioner seeks bail under Section 439 of Code of Criminal

Procedure, in the above noted case, on the grounds that her implication is

false. Nothing was recovered from her and she has been arrayed as an

accused with the aid of Section 29 of NDPS Act. Her implication on the sole

statement of co-accused Dabey Ram is not sustainable. Further, it has been

stated that because of land dispute with the petitioner herein, Dabey Ram

named her. There is no corroboration to the statement of Dabey Ram.

3. It has also been canvassed on behalf of the petitioner that she

has no previous criminal history. She is permanent resident of ward No. 03,

Tamhol office Raila, Sub-Tehsil Sainj, District Kullu, Himachal Pradesh. The

investigation of the case is complete and there is no justification to prolong

the custody of petitioner. There is no apprehension of petitioner fleeing from

course of justice.

4. On notice, respondent has placed on record status report. The

case of the respondent is that on 27.03.2021, police party headed by HC

Anupam Kumar No.13 had laid "Nakka" at place Larji. At about 4:30 A.M. a

vehicle bearing No. HP-24B-6994 (Tata Tigor) was stopped for checking.

Immediately, another vehicle bearing No. HP24C-6968 (Pick-Up) followed

and stopped behind the Tata Tigor car. Two persons occupying vehicle

bearing No. HP-24B-6994 immediately alighted and ran towards river. Vehicle

bearing No. HP-24C-6968 (Pick-Up) was occupied by its driver named Vinod

Kumar. On search of said vehicle HP-24C-6968 "Charas" was recovered,

which weighed 1KG and 555 grams. Vinod Kumar was arrested. As per his

version, the recovered "Charas" belonged to Ram Krishan and Deep Ram @

Nittu, who were occupants of the car bearing No. HP-24B-6994.

5. Ram Krishan and Deep Ram @ Nittu were arrested on

30.03.2021. They disclosed that they had purchased the recovered

contraband from Dabey Ram, who was also arrested on the same day. As

per disclosure made by Dabey Ram, he had purchased the contraband

from the bail petitioner on 26.03.2021. The bail petitioner was arrayed as

accused and was arrested on 01.06.2021.

7. Bail petitioner had earlier preferred a petition under Section 438

of Code of Criminal Procedure being Cr.M.P(M) No. 840 of 2021, which was

dismissed by a co-ordinate bench of this Court on 31.05.2021.

8. As per the case of the respondent, during investigation bail

petitioner has denied having sold contraband to Dabey Ram. Petitioner had

raised a plea that Dabey Ram had named her due to a land dispute inter-se

them. All the accused namely, Vinod Kumar, Ram Krishan, Deep Ram @ Nittu

and Dabey Ram and bail petitioner are in judicial custody. The challan has

been presented in the Court and the matter is pending before learned

Special Judge, Kullu.

9. I have heard learned counsel for the petitioner as well as

learned Additional Advocate General for the State.

10. It has been argued on behalf of bail petitioner that her

implication on the sole statement of Dabey Ram, is not sustainable,

especially, when there is no corroborative evidence against her. Learned

counsel for the petitioner has submitted with vehemence that there has been

no telephonic conversion between the bail petitioner and Dabey Ram. As

per petitioner, the evidence collected by Investigating Agency only revealed

exchange of telephone calls between her and Sarla Devi, wife of Dabey

Ram and on the basis of alleged telephonic conversion between the bail

petitioner and Sarla Devi, she cannot be said to be a privy to the crime.

11. It has also been submitted on behalf of petitioner that since no

recovery was effected from petitioner, rigors of Section 37 of NDPS Act will

not apply. Petitioner has no criminal history. Reliance has been placed on

the bail orders passed by co-ordinate benches of this court in Cr.M.P(M) No.

705 of 2020, titled as Kundan Lal vs. State of Himachal Pradesh, decided on

4th June, 2020, Cr.M.P(M) No. 299 of 2020, titled as Satish Singh vs. State of

Himachal Pradesh, decided on 29th June, 2020 and Cr.M.P(M) No. 1939 of

2020 titled as Nawal Kishore vs. State of H.P., decided on 31st

December,2020.

12. Per contra, Mr. Hemanshu Misra, learned Additional Advocate

General has opposed the bail petition of petitioner with vehemence. His

submission is that there is sufficient material collected by Investigating

Agency showing involvement of the petitioner in the crime. The call detail

records of the mobile number of petitioner reveal that four calls were

exchanged between petitioner and Sarla Devi on 26.03.2021 within a gap of

about four hours and one call was made on 27.03.2021. As per him, prior to or

after above noted five calls, no other calls were found to have been

exchanged between petitioner and Sarla Devi, which suggests that the calls

were made for the purpose of negotiating the deal of sale of contraband

with Dabey Ram.

13. It is not in dispute that commercial quantity of contraband is

involved in the instant case. The challan has been presented in the Court for

the offences under Sections 20, 25 and 29 of NDPS Act. Thus, the rigors of

Section 37 of NDPS Act will be applicable in the present case.

14. In State of Kerala and others Vs. Rajesh and others, (2020) 12

Supreme Court Cases 122, it has been held as under: -

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section

37 which commences with non obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of

bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the

prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are

reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the

underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail

.

under the NDPS Act is indeed uncalled for.

15. Similarly, in Satpal Singh Vs. State of Punjab (2018) 13 Supreme

Court Cases 813, the three Judges Bench of Hon'ble Supreme Court has held

as under:-

3. Under Section 37 of the NDPS Act, when a person is accused of

an offence punishable under Section 19 or 24 or 27A and also for offences involving commercial quantity, he shall not be released on bail unless the Public Prosecutor has been given an opportunity

to oppose the application for such release, and in case a Public

Prosecutor opposes the application, the court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit

any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. These limitations are in addition to those prescribed

under the Cr.P.C or any other law in force on the grant of bail. In view of the seriousness of the offence, the law makers have

consciously put such stringent restrictions on the discretion available to the court while considering application for release of a

person on bail. It is unfortunate that the provision has not been noticed by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court."

16. Thus, in the teeth of section 37 of NDPS Act, accused can be released

on bail in the cases involving commercial quantity of contraband, if all three

conditions are satisfied viz opportunity of opposing the bail is granted to the

prosecutor, the Court records satisfaction to the effect that there are

reasonable grounds for believing the accused not guilty of such offence and

that he/she with certainty can be believed not to commit the same offence

during the period of bail.

17. Coming to the facts of the case no credible explanation has

been given by petitioner regarding her repeated conversation with wife of

Dabey Ram on 26th and 27th of March, 2021. Nothing has been placed on

record to suggest that there was some pending dispute between Dabey

Ram and petitioner which could be the reason for her false implication.

Otherwise also it is not understandable that in case of dispute between them,

what was the occasion to have frequent phone calls between petitioner and

Sarla Devi on 26.03.2021 and 27.03.2021.

18. It is no one's case that Dabey Ram and his wife were not

residing together or had strained relations. In the given situation, it could be

the modus operandi of Dabey Ram not to converse with petitioner from his

mobile and for that reason might have used mobile phone of his wife.

Merely because mobile phones of petitioner and Sarla Devi were not seized

by Police, will not help the cause of petitioner. The omission to seize mobile

phones may not make a difference; in case it is otherwise proved that the

alleged mobile numbers of petitioner and Sarla Devi in fact belonged to

them.

19. Thus, the implication of petitioner prima facie cannot be said to

be without justification. That being so, this court is unable to return findings

that there are reasonable grounds to believe that petitioner is not guilty of

charged offence. In addition, the possibility of petitioner indulging in similar

offence during bail can also not be ruled out. Therefore, section 37 of NDPS

Act comes into play and petitioner's right, if any, to be released on bail gets

clogged.

20. The ingredients of Section 37 of NDPS Act are to be read

conjunctively and absence of any single condition thereof disentitles a

person from relief of bail.

21. An argument has further been raised on behalf of petitioner that

as per admitted case of respondent no recovery was effected from

petitioner, therefore, Section 37 of the NDPS Act will not be applicable. The

argument so raised deserves to be rejected for the reason that Section 29 of

the NDPS Act speaks about abetment or conspiracy that makes the person

liable for punishment for the same offence of which abetment or conspiracy

is alleged. Section 29 of the NDPS Act carves out an independent offence

and will be covered under the expression "and also the offences involving

commercial quantity" used in Section 37 (1) (b) of the NDPS Act. Thus,

whenever a person is accused of offence under Section 29 of the NDPS Act

and the involvement is of commercial quantity of contraband, undoubtedly,

the rigors of Section 37 of the NDPS Act shall apply.

22. Even otherwise, the mere absence of recovery of contraband

from the possession of an accused shall not exempt him from the rigors of

Section 37 of the NDPS Act. Reference can be made to a recent judgment

dated 22.9.2021 passed by the Hon'ble Supreme Court in Criminal Appeal

No. 1043 of 2021 (Arising out of SLP (Crl) No. 1771 of 2021), titled Union of India

through Narcotics Control Bureau, Lucknow vs. Md. Nawaz Khan, wherein it

has been held as under:

"24. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India vs. Rattan Mallik, (2009) 2 SCC 624, a two-

.

judge Bench of this Court cancelled the bail of an accused and

reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity

above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37 (1) (b) and there was non-application of mind by the High

Court.

25. In line with the decision of this Court in Rattan Mallik (Supra), we are of the view that a finding of the absence of possession of the

contraband on the person of the respondent by the High Court in the

impugned order does not absolve it of the level of scrutiny required under Section 37(1)(b)(ii) of the NDPS Act."

23. With due deference to the bail orders cited by learned counsel

for the petitioner, no help can be derived by petitioner from these orders for

the reasons that those have been passed in peculiar facts and

circumstances involved in each of them. The material available against the

petitioner in present case, probably, was missing in such cases.

24. In view of above discussion, I find no merit in the petition and the

same is accordingly dismissed.

25. The expression of opinion, if any, hereinabove shall be construed

only for the purpose of disposal of this petition and shall in no manner

influence learned trial court during the course of trial, which shall be decided

on its own merits uninfluenced by this order.

(Satyen Vaidya) Judge September 24th , 2021(ravinder)