Presently In Judicial Custody vs "24. As Regards The Finding Of The ...
2021 Latest Caselaw 4699 HP

                             REPORTABLE/NON-REPORTABLE
    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 24th DAY OF SEPTEMBER 2021
                                  BEFORE




                                                            .
                HON'BLE MR. JUSTICE SATYEN VAIDYA





          CRIMINAL MISC. PETITION (MAIN) No. 1531 OF 2021

       Between:-





       JEET RAM S/o SH. DHABA RAM,
       R/o VILLAGE CHHAKY,
       POST OFFICE NAGAR TEHSIL SADAR,
       DISTRICT KULLU HIMACHAL PRADESH




       PRESENTLY IN JUDICIAL CUSTODY
       AND CONFINED DISTRICT JAIL KULLU,
       DISTRICT KULLU HIMACHAL PRADESH
       THROUGH HIS WIFE LATA DEVI,

       W/o JEET RAM VILLAGE CHHAKY,
       POST OFFICE NAGAR TEHSIL SADAR,

       DISTRICT KULLU HIMAHAL PRADESH

                                          ......PETITIONER
       (BY SH. BHUPINDER SINGH AHUJA, ADVOCATE)



       AND




       STATE OF HIMACHAL PRADESH
       THROUGH SECRETARY HOME TO THE
       GOVERNMENT OF HIMACHAL PRADESH,





       SHIMLA, HIMACHAL PRADESH
                                     .....RESPONDENT





       (BY SH. RAJENDER DOGRA, SENIOR ADDITIONAL
       ADVOCATE GENERAL WITH SH. HEMANSHU MISRA,
       ADDITIONAL  ADVOCATE  GENERAL   FOR   THE
       RESPONDENT)

       RESERVED ON : 17.09.2021
       DECIDED ON: 24.09.2021

                This   petition   coming   on      for    orders       this    day,
    the Court passed the following:




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                                   -2-


                                 ORDER

Petitioner is accused in case registered vide FIR

No.204 of 2019 dated 29.09.2019 Registered at Police Station,

.

Bhuntar District Kullu, Himachal Pradesh under Sections 20

and 29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short 'NDPS Act'). Petitioner was arrested in the

above noted case on 06.10.2019 and is in custody since then.

2. On completion of investigation, Challan was

Judge, Kullu.

r to presented and the trial is pending before learned Special

Petitioner earlier filed bail petition under

Section 439 CrPC before this Court which was registered as

CrMPM No.926 of 2020. Petitioner withdrew the said petition

on 02.07.2020 with liberty to move afresh at appropriate

stage. Trial has commenced before learned Special Judge.

3. Petitioner is seeking his release on bail in above

noted case under Section 439 CrPC on the premise that his

implication is false. Since, he has been arrayed as an

accused with the aid of Section 29 of the Narcotic Drugs and

Psychotropic Substances (NDPS) Act, rigors of Section 37

would not apply especially when nothing was recovered from

the possession of petitioner. The alleged disclosure by

co-accused cannot be used against him. Conspiracy cannot

be inferred from alleged telephone calls. There is no legal

evidence against the petitioner. The mobile number alleged to

be used by petitioner, in fact, did not belong to him.

.

4. It has further been contended on behalf of the

petitioner that he is permanent resident of Village Chhaky,

Post office Nagar Tehsil Sadar, District Kullu, Himachal

Pradesh and has roots in the society. There is no likelihood

of petitioner absconding from course of justice. He

undertakes to abide by all the conditions as may be imposed.

The petitioner has also relied upon statement of his brother

Sh. Dharam Chand recorded in the case as PW-1 by learned

Special Judge on 01.09.2021.

5. On notice, respondent has placed on record status

report. As per case of respondent, a huge quantity of 3 Kg.

382 grams of cannabis (Charas) was seized from personal

search of one Joseph Shobal during routine checking in a bus

at about 11.20 P.M. on 29.09.2019 at Bajaura District,

Mandi, Himachal Pradesh. Further investigation revealed that

Joseph Shobal was resident of Kerala and had purchased the

seized contraband for Rs.4,80,000/- from bail petitioner

through one Mohsin. Contention of respondent is that there

were regular telephonic conversations between petitioner

Mohsin and Joseph Shobal between 26.09.2019 to

28.09.2019, which sufficiently revealed implication of

petitioner in the crime.

.

6. I have heard learned counsel for the petitioner and

learned Additional Advocate General for the respondent and

have gone through the record made available during the

course of hearing including the status report.

7. It is not in dispute that petitioner has been

charged by learned Special Judge alongwith other co-accused

and the trial has commenced. Petitioner himself has relied

upon statement of PW-1 Dharam Chand recorded by learned

Special Judge on 01.09.2021.

8. Once learned Special Judge has found existence of

prima facie case against petitioner while framing the charge

and the order of learned Special Judge has become final, it

cannot be heard from the petitioner that no prima facie case

is made out against him for offences under Sections 20 and

29 of Narcotic Drugs and Psychotropic Substances (NDPS),

Act. This Court while hearing the bail application of petitioner

will not adjudicate upon the merits of the order framing

charge passed by learned Special Judge. That being so, the

fetters mandated by Section 37 of the NDPS Act, dis-entitles

petitioner from relief of bail as prayed in the instant petition.

9. Section 37 of the NDPS Act, reads as under:-

.

37. Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable

for {offences under section 19 or section 24 or section 27A 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

10. Admittedly, the quantity of contraband involved in

the instant case is commercial. There is strong opposition

from respondent to the grant of bail in favour of petitioner. In

the teeth of charge framed against petitioner by Court of

competent jurisdiction for offences under Sections 20 and 29

.

of the NDPS Act, existence of reasonable grounds of belief as

to innocence of petitioner cannot co-exist.

11. Even otherwise, in the given facts of the case, it

cannot be said that the implication of petitioner is without

justifiable reasons. Prima facie corroboration to the

12. to allegations against the petitioner is found on record.

Though, the phone calls from mobile number

attributed to petitioner were made by using a SIM card in the

name of Dharam Chand, but it is the case of prosecution that

Dharam Chand had handed over the SIM card No.78077-

03025 to the petitioner. In my considered view, petitioner

cannot derive any benefit from the statement of PW-1 Dharam

Chand recorded by learned Special Judge for the reason that

in his Examination-in-Chief this witness reiterated that he

had handed over SIM No.78077-03025 to the petitioner after

he had lost his mobile phone. The evidence has to be

appreciated by the learned Special Judge, however, the

version of said witness is being noticed only to assess the

prima facie material against the petitioner.

13. Petitioner is accused of selling huge quantity of

contraband for consideration. It is also alleged that another

case under the NDPS Act, is pending against the petitioner.

.

Thus, it cannot be said that the petitioner if released on bail,

will not indulge in the same activity during the bail.

14. 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.

15. 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."

16. In the light of above said discussion, petitioner

has failed to make out any case for grant of bail. The petition

is accordingly dismissed.

.

17. Any opinion expressed hereinabove shall be

construed only for the purposes of disposal of this application

and shall have no effect on the merits of the case.

(Satyen Vaidya)

Judge 24th September, 2021 (tarun)