Himachal Pradesh High Court

Nawang Sonam vs State Of H.P on 22 November, 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 2556 of 2023 Reserved on: 08.11.2023 Date of Decision: 22.11.2023

    Nawang Sonam                                                                   ... Petitioner





                                           Versus
    State of H.P                                                                 ....Respondent





    Coram

Hon'ble Mr. Justice Rakesh Kainthla, Judge.

of Whether approved for reporting?1 No For the Petitioner : Mr. Sandeep Datta, Advocate. For the Respondent rt : Mr. Prashant Sen, Deputy Advocate General with ASI Roop Lal, I.O, Police Station (East), Shimla.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking the regular bail. It has been asserted that the petitioner

was arrested for the commission of an offence punishable under

Section 21 of the NDPS Act registered vide FIR No.85/2023 on

27.08.2023 in Police Station, East Shimla, District Shimla. The

petitioner is a permanent resident of ITBP Road, Tehsil Kalpa,

District Kinnaur. As per the prosecution, the petitioner was

found in possession of 14.5 grams of heroin. The petitioner

belongs to a respectable family and he has roots in the society.

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

He would abide by all the terms and conditions, which may be

imposed by the Court. Hence, the present petition.

2. The petition is opposed by filing a status report

asserting that the Police party was on patrolling duty on

27.08.2023. Information was received that the petitioner was

selling the heroin and in case of search, a huge quantity of

heroin could be recovered. The police associated independent

of witnesses and searched the house of the accused in his presence

and in the presence of the independent witnesses. The police rt found 14.05 grams of heroin and one burnt currency note of ₹10.

The Police seized the heroin as well as burnt currency note and

arrested the petitioner. The police recorded the statement of

Kuldeep Kumar who disclosed that the petitioner had sold the

heroin to him on some occasion on cash. The petitioner is

involved in the selling of heroin, which is a heinous offence;

therefore, it was prayed that the present petition be dismissed.

3. I have heard Mr. Sandeep Datta, learned counsel for

the petitioner and Mr. Prashant Sen, learned Deputy Advocate

General, for the respondent/State.

4. Mr. Sandeep Datta, learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated. He does not have any criminal antecedents and

should not be kept behind bars indefinitely. Hence, he prayed

that the present petition be allowed and the petitioner be

released on bail.

5. Mr. Prashant Sen, learned Deputy Advocate General,

for the respondent/State submitted that the petitioner was

involved in the selling of heroin, which is a heinous offence and

is affecting the society adversely. Therefore, he prayed that the

of present petition be dismissed.

6. I have given considerable thought to the rival rt submissions at the bar and have gone through the records

carefully.

7. The Hon'ble Supreme Court discussed the

parameters for granting the bail in Bhagwan Singh v. Dilip

Kumar, 2023 SCC OnLine SC 1059 as under:-

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of

course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

beyond reasonable doubt but there ought to be

always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the

of matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. rt

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu

Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and

not as a matter of course. Though at the stage of granting bail a detailed examination of evidence

and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie

concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC

.

598: 2002 SCC (Cri) 688] and Puran v. Rambilas

[(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"

8. A similar view was taken in State of Haryana vs

Dharamraj2023 SCC Online 1085, wherein it was observed:

of

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra rt Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the

relevant principles were restated thus:

'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or

rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the

basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other

circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.'

.

9. In the present case, the petitioner was found in

possession of 14.05 grams of heroin with Polythene. As per the

report of analysis, the weight of heroin was found to be 13.859

grams, which is an intermediate quantity and the rigours of

of Section 37 do not apply to the present case. The Police recorded

the statement of the petitioner during the investigation, in rt which he stated that he had purchased the heroin from some

unknown person and had sold it to other persons. The police

also recorded the statement of Kuldeep Kumar, who claimed

that the petitioner used to supply the heroin to him in cash.

However, the police found on investigation that no financial

transaction had taken place between the two. The call detail

record was also not obtained. Therefore, there is insufficient

material to conclude that the petitioner is a drug peddler.

10. The police claimed in the report that the petitioner is

a drug addict and a drug peddler. As already stated, there is

insufficient evidence regarding the petitioner being a drug

paddler and the version that the petitioner is a drug addict is

duly corroborated by the recovery of a burnt currency note of

₹10.

11. The petitioner claimed that he is the first offender

and he does not have any criminal antecedents. The status

report does not mention that the petitioner was involved in the

commission of similar offences. The petitioner has been in

custody since 27.08.2023. Since the petitioner is the first

of offender, he deserves a chance to reform himself. His prolonged

custody will expose him to a hardened criminal and the chances rt of his reformation will be bleak.

12. The petitioner is a permanent resident of District

Kinnaur and is residing in Shimla. The Police did not state in the

report that his address was incorrect. Therefore, the

apprehension that the petitioner may abscond is not established

on the record.

13. In view of the above, the present petition is allowed

and the petitioner is ordered to be released on bail subject to his

furnishing bail bonds in the sum of ₹50,000/- with one surety

of the like amount to the satisfaction of the learned Trial Court.

While on bail, the petitioner will abide by the following terms

and conditions:-

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a

.

continuous period of seven days without furnishing the

address of the intended visit to the I.O/SHO of the concerned Police Station and the Trial Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court

of through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

14. It is expressly made clear that in case of violation of

any of these conditions, the prosecution will have the right to

file a petition for cancellation of the bail.

15. The observations made hereinbefore shall remain

confined to the disposal of the petition and will have no bearing

whatsoever on the merits of the case.

(Rakesh Kainthla) Judge 22nd November, 2023 (saurav pathania)