Himachal Pradesh High Court
Aditya Chauhan vs State Of Himachal Pradesh on 26 July, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr.MP(M) No.1158 of 2024 a/w
Cr.MP(M) No.1159, 1339, 1161 and 1290 of 2024
Reserved on: 11th July, 2024
.
Announced on: 26th July, 2024
____________________________________________________________
1. Cr.MP(M) No.1158 of 2024
Aditya Chauhan ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
For the petitioner: Mr. Ajay Kochhar, Senior Advocate with
Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate
General.
2. Cr.MP(M) No.1159 of 2024
Paras Justa ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
For the petitioner: Mr. Ajay Kochhar, Senior Advocate with
Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate
General.
Ashutosh Sanolta ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
For the petitioner: Mr. Arsh Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate
General.
____________________________________________________________
Abhay Chauhan ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
.
For the petitioner: Mr. Ajay Kochhar, Senior Advocate with
Mr. Varun Chauhan, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate
General.
____________________________________________________________
Vishva Raj Singh ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
For the petitioner: Mr. Hamender Singh Chandel, Advocate.
For the respondent: Mr. Hemant K. Verma, Deputy Advocate
General.
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
Ranjan Sharma, Judge
Out of total ten accused, five accused, who are
bail petitioners herein, [Aditya Chauhan, Paras Justa,
Ashutosh Sanolta, Abhay Chauhan and Vishva Raj Singh],
have come up before this Court, seeking regular bail,
under Section 439 of the Code of Criminal Procedure
Whether reporters of Local Papers may be allowed to see the judgment?
hereinafter [referred to as CrPC], originating from FIR
No. 21 of 2024 dated 14.02.2024, registered at Police
Station Theog, District Shimla [H.P.], under Sections 21
.
and 29 of the Narcotic Drugs and Psychotropic Substances
Act (referred to as the NDPS Act).
BACKGROUND:
2. Parikshit Dhani, was arraigned as an accused
in FIR No.21/2024 dated 14.02.2024, registered at Police
Station Theog, District Shimla, [H.P.]. Consequently, ten
other persons were arraigned as accused namely, Sahil
Kumar [main supplier], Aditya Chauhan, Paras Justa,
Ashutosh Sanolta, Abhay Chauhan, Vishva Raj Singh,
Rakshit Chauhan, Vikram Chauhan [all in custody since
05.4.2024] and another accused Rahul [on interim bail],
in the said matter.
3. Since the bail petitioners are in custody since
05.04.2024, therefore, with the consent of parties, all these
petitions are taken up for disposal together, by a common
order.
FACTUAL MATRIX
4. Case set up by Mr. Ajay Kochhar, Learned
Senior Advocate for bail petitioners [Aditya Chauhan,
Paras Justa and Abhay Chauhan] and Mr. Arsh Chauhan,
Advocate for the bail petitioner [Ashutosh Sanolta] and
.
Mr. Hamender Singh Chandel, for the bail petitioner
[Vishva Raj Singh] is that the bail petitioners have been
falsely implicated and they have never indulged in
activities as alleged. It is averred that no incident
happened, as alleged by the prosecution. It is alleged in
Para 3 of the
petition that
Justa, Aditya Chauhan and Ashutosh Sanolta were room
r Parikshit Dhani, Paras
mates at Chandigarh and a mutual understanding was
arrived that Parikshit Dhani will look after their day to
day needs [grocery, food etc.] and as and when they
have money, they shall transfer the same to Parikshit
Dhani. It is averred that the bail petitioners have
transferred some amount, ranging between Rs.100/-
to Rs.500/- to Parikshit Dhani.
4(i). It is averred that no recovery of contraband
has been made from the bail petitioner(s) whereas, the
recovery of contraband was made from Parikshit Dhani.
It is averred that though the recovered contraband was
12.06 grams but after complying with the mandate of
Section 52-A of the NDPS Act, the recovered contraband
came out to be 8.58 grams, which is an Intermediate
.
Quantity.
4(ii). It is averred that the quantity of contraband was
8.58 grams and therefore, the rigors of Section 37 of
the NDPS Act were not attracted. It is averred that
the investigation is complete and Challan/Final Police
Report has been
presented before the
Court i.e. Learned Special Judge-II, Shimla [HP]. It is averred
r jurisdictional
that petitioner(s) are respectable persons, having deep
roots in the society and they have no criminal history and
in case, bail is granted, they shall not misuse their liberty.
4(iii). It is averred that the petitioners [Aditya
Chauhan, Paras Justa and Vishva Raj Singh], filed bail
application(s) before the Learned Special Judge-II,
Shimla, [H.P.], but the same was withdrawn. Thereafter,
the bail petitioners [Aditya Chauhan, Paras Justa,
Ashutosh Sanolta and Abhay Chauhan] again filed bail
applications before the Learned Special Judge [CBI],
Shimla, [H.P.] which was rejected on 29.05.2024, Annexure
P-1, after considering all factors and the factum that
the second bail application filed after a short duration
does not reveal any change in circumstances. It is in
.
this background, that the bail petitioners have come up
before this Court, seeking regular bail in instant case(s).
PROCEEDINGS BEFORE THIS COURT
5. Instant bail petitions Cr.MP(M) No.1158/2024,
[Aditya Chauhan vs State of Himachal Pradesh], Cr.MP(M)
No.1159/2024,
[Paras Justa vs State and
No.1161/2024, [Abhay Chauhan vs State] were listed before
r Cr.MP(M)
this Court on 31.05.2024, but the same were adjourned at
the request of the Learned Senior Counsel.
5(i). However, on 15.06.2024, this Court, issued
notice [in Cr.MP(M) No.1158/2024, in re Aditya Chauhan
vs State of Himachal Pradesh; in Cr.MP(M) No.1159/2024
in re Paras Justa vs State, in Cr.MP(M) No.1161/2024,
Abhay Chauhan vs State].
Likewise, this Court issued notice on 03.07.2024
[in Cr.MP(M) No.1339/2024 in re Ashutosh Sanolta vs
State of Himachal Pradesh] and on 27.06.2024 [in
Cr.MP(M) No.1290/2024, Vishva Raj Singh vs State]
with directions to the State Authorities to file the Status
report and on 27.06.2024, time to file status report
was enlarged. The State Authorities furnished the Status
.
Report dated 11.07.2024, on the Instructions of SHO, Police
Station Theog, District Shimla [H.P.], which was taken on
record and the copy of the Status Report(s) were furnished
to Learned Senior Counsel Mr. Ajay Kochhar and Mr. Arsh
Chauhan and Mr. Hamender Singh Chandel, Advocate(s),
for respective petitioner(s).
On receipt of the Status Report(s), the Learned
Counsel(s) have prayed for hearing the matter finally.
Accordingly, with the consent of the parties, all these
petitions were finally heard and are decided by a common
order.
STAND OF THE STATE AUTHORITIES
6. Perusal of the Status Report(s) dated 11.07.2024,
reveals that the State Authorities have set up a case,
that on 14.02.2024, while the police party was on patrolling
duty, from Rahi Ghat to Ekant Vatika, near Theog, a
car bearing Registration No.HP63C-5463, was parked
on the main road. Two persons, namely, Kanshi Ram and
Ashwani Jarek, were seen standing besides the said car,
when, they noticed a boy, coming towards them, but on
noticing the police patrolling party, the aforesaid boy
.
[who was Parikshit Dhani], became perplexed and he took
out and threw a polythene out of his pocket, which was
recovered by the police, leading to sampling of recovered
contraband, preparation of rukka, after completing of codal
formalities and registration of FIR.
6(i).
Status Report(s) indicate that accused Parikshit
Dhani, from whom the recovery was made was arrested
on 14.02.2024, by the police authorities. Consequent upon
his arrest and during investigation, it transpired that
the accused, Parikshit Dhani had been staying as room-
mates in Chandigarh along with three other accused,
namely, Aditya Chauhan, Paras Justa and Ashutosh
Sanolta and all these four accused had purchased
contraband from main supplier, Sahil Kumar, a resident of
Moti Jagran Complex, Chandigarh.
6(ii). Status Report further reveals that Sahil Kumar,
[main supplier], and these four accused, namely Parikshit
Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta
were [main peddlers] in constant touch with each other,
through mobile calls which is clear, from the Call Detail
Records [CDRs] also. During investigation, the State
.
Authorities collected the Bank Transaction Records [BTRs],
revealing monetary transactions worth lakhs of rupees
amongst the above named four accused and the main
supplier [Sahil Kumar].
6(iii). Status Report further reveals that the main
supplier, [Sahil Kumar] and the main peddlers [Parikshit
Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta],
have resorted to illegal trafficking and trading i.e. Sale,
Purchase, Transportation and Inter-State Import of
contraband [Heroin/ Chitta]. All these accused resorted
to further sale-purchase of Heroin/Chitta through the local-
sub peddlers, namely, Abhay Chauhan, Vishva Raj Singh,
Rahul Sharma, Rakshit Chauhan and Vikram Chauhan in
Theog and Kotkhai areas of District Shimla, indicating
concerted effort, criminal intent and criminal conspiracy
of all the accused.
6(iv). Status Report points out that two accused,
namely Rakshit Chauhan and Vikram Chauhan are
- 10 -
absconding as on day. However, it is stated that the
investigation is complete and the Charge-sheet/Final Police
Report has been filed before the Learned Trial Court
.
on 10.04.2024.
In terms of the Status Report, the Learned
State Counsel has prayed for rejection of the bail
application(s), at this stage.
7. Heard, Mr. Ajay Kochhar, Learned Senior
Counsel, Mr. Arsh Chauhan and Mr. Hamender Singh
Chandel, Advocate for the bail petitioner(s) and Mr. Hemant
K. Verma, Learned Deputy Advocate General for the
Respondent and have perused the available material.
STATUTORY PROVISIONS:
8. In order to test, the claim for enlargement on
bail, it is necessary to have a recap of the provisions
of Section 21, 29 and 35 of the NDPS Act, which reads
as under :-
"Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation
to manufactured drugs and preparations-
Whoever, in contravention of any provision of
this Act or any rule or order made or condition
of licence granted thereunder, manufactures,
- 11 -
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses
any manufactured drug or any preparation
containing any manufactured drug shall be
punishable ,--
.
(a) where the contravention involves small
quantity, with rigorous imprisonment for a
term which may extend to one year, or with
fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves
quantity, lesser than commercial
quantity but greater than small
quantity, with rigorous imprisonment
for a term which may extend to ten
years and with fine which may extend
to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous
r imprisonment for a term which shall not be
less than ten years but which may extend
to twenty years and shall also be liable
to fine which shall not be less than one
lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees.
29. Punishment for abetment and criminal
conspiracy.-
(1) Whoever abets or is a party to a criminal
conspiracy to commit an offence punishable
under this Chapter, shall, whether such
offence be or be not committed in
consequence of such abetment or in
pursuance of such criminal conspiracy, and
notwithstanding anything contained in section
116 of the Indian Penal Code (45 of 1860), be
punishable with the punishment provided for
the offence.
- 12 -
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the
meaning of this section, who, in India abets
or is a party to the criminal conspiracy to
the commission of any act in a place without
and beyond India which-
.
(a) would constitute an offence if
committed within India; or
(b) under the laws of such place, is an
offence relating to narcotic drugs or
psychotropic substances having all the
legal conditions required to constitute it
such an offence the same as or analogous
to the legal conditions required to
constitute it an offence punishable under
this Chapter, if committed within India.
35. Presumption of culpable mental state.-
r (1) In any prosecution for an offence under
this Act which requires a culpable mental
state of the accused, the court shall presume
the existence of such mental state but
it shall be a defence for the accused to
prove the fact that he had no such mental
state with respect to the act charged as
an offence in that prosecution.
Explanation.- In this section "culpable mental
state" includes intention motive, knowledge
of a fact and belief in, or reason to believe,
a fact.
(2) For the purpose of this section, a fact is said
to be proved only when the court believes it
to exist beyond a reasonable doubt and not
merely when its existence is established by a
preponderance of probability."
MANDATE OF LAW:
9. Notably, the offences under the NDPS Act
- 13 -
including Section 21 of the aforesaid Act, as in this
case are cognizable, therefore, the claim of the suspect-
accused for post arrest bail-regular bail is to be examined
.
/tested within the parameters prescribed of the Code
of Criminal Procedure and also the broad para-meters
mandated by the Hon'ble Supreme Court regulating
grant of bail in Gurbaksh Singh Sibbia versus State
of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay
versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan
Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC
528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee,
(2010) 14 SCC 496 ; reiterated in P Chidambaram
versus Directorate of Enforcement, (2019) 9 SCC 24,
mandating that the bail {anticipatory or regular} is to
be granted where the case is frivolous or groundless
and no prima facie or reasonable grounds exists which
lead to believe or point out towards accusation ; and
these parameters for regular bail have been reiterated
in Sushila Aggarwal versus State-NCT Delhi, (2020) 5
SCC 01.
9(i). While dealing with the case for grant of
- 14 -
regular bail, under Section 439 Cr PC, the three judges
bench of Hon'ble Supreme Court, after reiterating the
broad parameters, has held in Deepak Yadav versus
.
State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25
that the nature of the crime has a huge relevancy, while
considering claim for bail.
9(ii). In the case of Ansar Ahmad versus State
of Uttar Pradesh, 2023 SCC Online SC 974, the
Hon'ble Supreme Court had expanded the horizon of
the broad parameters, which are to be primarily taken
into account, for considering the claim for regular bail
or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel
appearing for one of the private respondents
that the Court while granting bail is not
required to give detailed reasons touching
the merits or de-merits of the prosecution
case as any such observation made by the
Court in a bail matter can unwittingly cause
prejudice to the prosecution or the accused at
a later stage. The settled proposition of law,
in our considered opinion, is that the order
granting bail should reflect the judicial
application of mind taking into
consideration the well-known parameters
including:
(i) The nature of the accusation weighing
in the gravity and severity of the
offence;
- 15 -
(ii) The severity of punishment;
(iii) The position or status of the accused,
i.e. whether the accused can exercise
influence on the victim and the
witnesses or not;
(iv) Likelihood of accused to approach or
.
try to approach the victims/witnesses;
(v) Likelihood of accused absconding from
proceedings;
(vi) Possibility of accused tampering with
evidence;
(vii) Obstructing or attempting to obstruct
the due course of justice;
(viii) Possibility of repetition of offence if left
out on bail;
(ix) The prima facie satisfaction of the
court in support of the charge
including frivolity of the charge;
(x) The different and distinct facts of each
r case and nature of substantive and
corroborative evidence.
12. We hasten to add that there can be
several other relevant factors which,
depending upon the peculiar facts and
circumstances of a case, would be required
to be kept in mind while granting or
refusing bail to an accused. It may be
difficult to illustrate all such circumstances,
for there cannot be any straight jacket
formula for exercising the discretionary
jurisdiction vested in a Court under
Sections 438 and 439 respectively of the
CrPC, as the case may be.
9(iii). In CBI versus Santosh Karnani, (2023) 6
SCALE 250, the Hon'ble Supreme Court has reiterated
the illustrative time tested broad parameters which are
required to be taken into account while considering
- 16 -
the prayer for bail ; which have recently been reiterated
by the Hon'ble Supreme Court in the case of State
of Haryana versus Dharamraj, 2023 SCC OnLine SC
.
1085.
9(iv). This Court is also conscious of the fact that
as per the mandate of law, in Criminal Appeal No 3840
of 2023, titled as Saumya Churasia versus Directorate
of Enforcement, decided on 14.12.2023, while considering
the prayer for bail,
though a Court, is not required
to weigh the evidence collected by the Investigating Agency
meticulously, nonetheless, the Court should keep in mind
the nature of accusation; the nature of evidence collected;
the gravity of offence; the role attributed to each of the
accused; the severity of punishment prescribed for an
offence(s); the character of the accused; the possibility of
securing presence of accused during the trial; the
apprehension of witnesses being tampered; the possibility
of accused causing any threat or inducement to witnesses;
by forming a prima facie opinion in the context of above
broad-parameters and by balancing the personal liberty of
an accused vis-à-vis the societal rights and interests; and
- 17 -
without delving into merits, so as to prevent any prejudice
to either the accused or the prosecution.
OBJECT OF NDPS ACT:
.
10. Even in order to examine the claim for
bail under the NDPS Act, this Court deems it necessary,
to have a recap of the Preamble of the NDPS Act, which
reads as under :
"An Act to consolidate and amend the law
relating to narcotic drugs, to make stringent
provisions for the control and regulation of
operations relating to narcotic drugs and
psychotropic substances to provide for the
r forfeiture of property derived from, or used in,
illicit traffic in narcotic drugs and psychotropic
substances, to implement the provisions of the
International Conventions on Narcotic Drugs
and Psychotropic Substances and for matters
connected therewith"
10(i). While dealing with the object of the NDPS
Act, the Hon'ble Supreme Court in Durand Didier, (1990) 1
SCC 95, has mandated that the devastating menace
of clandestine smuggling and illegal trafficking in drugs
and substances has led to drug addiction amongst a
sizeable section of the society, the adolescents and the
youth, having a deleterious effect and deadly impact on the
society, with the following observations :
- 18 -
"19. In view of the above position, it cannot
be contended that the prohibited drugs and
substances seized from the appellant's
possession were in small quantity so as to bring
him only within the mischief of Section 27(a) of
the Act.
.
20. It may not be out of place to mention that
even if a person is shown to have been in
possession of a small quantity of a narcotic
drug or psychotropic substance, the burden
of proving that it was intended for the
personal consumption of such person and
not for sale or distribution, lies on such
person as per Explanation 2 of Section 27 of
the Act.
21. Thirdly, the very fact that the appellant
had kept these drugs and substances in many
ingeniously devised places of concealment in
the camera, shaving tube, torch and shoes
would indicate that the appellant was having
Fuji knowledge that the drugs he carried were
prohibited drugs and that he was having them
in violation of law.
22. We, for the above reasons, see no merit
in this contention also. The Trial Court while
inflicting the punishment has expressed its
view about the drug menace spreading in Gao
as follows:
"The spreading of the drugs in Gao is
becoming day by day a terrible menace
which is completely destroying the very
fiber of our society being also
instrumental in subverting the tender
soul of our young generation which is
being badly contaminated by such danger in
a very alarming provisions calling for severe
punishment in case of illegal possession
and transportation of drugs meant for
personal consumption and eventual trade."
- 19 -
24. With deep concern, we may point
out that the organised activities of the
underworld and the clandestine smuggling
of narcotic drugs and pyschotropic substances
into this country and illegal trafficking
in such drugs and substances have led
.
to drug addiction among a sizable section
of the public, particularly the adolescents
and students of both sexes and the menace
has assumed serious and alarming
proportions in the recent years. Therefore,
in order to effectively control and eradicate
this proliferating and booming devastating
menace, causing deleterious effects and
deadly impact on the society as a whole,
the Parliament in its wisdom, has made effective
provisions by introducing this Act 81 of 1985
specifying mandatory minimum imprisonment
and fine...."
10(ii). Even a suspect or an accused under the NDPS
Act does not have any vested right or an automatic
claim for pre-arrest bail or regular bail, merely because
the accusation is relating to either small or intermediate
quantity of contraband. Courts cannot feign ignorance
that it is the modus operandi of Drug Mafia's or Master-
minds or King Pins, who primarily act through persons,
who are either indigent or are poor or are unemployed or
have unwarranted and unexpected financial expectations
so as to become over night rich or who suffers financial
instability etc. Taking advantage of these circumstances,
- 20 -
the Kingpins or Master minds by alluring them so as to
mould them to become main suppliers/main peddlers and
then to induce them to act as sub-local peddlers for carrying
.
on trafficking of small and intermediate quantity of
contraband with a predesigned calculation that in case of
their involvement, they may have an easy and earlier
release etc. Day in and day out such instances are endlessly
creeping in and are constantly on the rise. With the passage
of time, these peddlers turn out to be habitual offenders,
by involving them in multifarious cases, either under the
NDPS or other Statutes.
10(iii). It is high time that the drug trafficking
and menace needs to be dealt with iron hands. If the
available material points towards the prima facie case
or carves out reasonable grounds to believe the accusation
or culpability or involvement then, in larger societal
interests, the rule of law needs to be strictly enforced.
Any drug peddler or trafficker or person cannot have an
automatic and vested right to be enlarged on bail, merely
because the quantity of contraband involved is either small or
intermediate. An assertion of personal liberty of a person
- 21 -
including an accused, cannot be in the realm of absolutism
and can never be an uncontrolled and unrestricted one.
Personal liberty of a person ends where, the liberty of another
.
is sought to be or is intended to be or is actually violated.
Personal liberty has to succumb to larger societal interests
which stand at a higher pedestal. Enlarging such persons
on bail, shall certainly amount to sacrificing the society, the
state and of course, the nation, to such nefarious activists.
10(iv).
Notably, the personal liberty under Article 21
to some extent may carry weight, depending on facts
of each case, but, when it comes to safeguarding and
protecting the rights and interests of the society, the
community and the nation then, in such an eventuality,
the individual right(s) shall certainly have to succumb to
larger societal interests, in terms of the mandate of law,
in Ash Mohammad versus Shiv Raj Singh alias Lalla
Babu and another (2012) 9 SCC 446, as under:
"17. We are absolutely conscious that liberty
of a person should not be lightly dealt
with, for deprivation of liberty of a person
has immense impact on the mind of a
person. Incarceration creates a concavity
in the personality of an individual. Sometimes
it causes a sense of vacuum. Needless
- 22 -
to emphasize, the sacrosanctity of liberty
is paramount in a civilized society. However,
in a democratic body polity which is
wedded to Rule of Law an individual is
expected to grow within the social restrictions
sanctioned by law. The individual liberty
.
is restricted by larger social interest
and its deprivation must have due sanction
of law. In an orderly society an individual
is expected to live with dignity having
respect for law and also giving due
respect to others' rights. It is a well accepted
principle that the concept of liberty is
not in the realm of absolutism but is
a restricted one. The cry of the collective
for justice, its desire for peace and
harmony and its necessity for security cannot
be allowed to be trivialized. The life of
an individual living in a society
governed by Rule of Law has to be
regulated and such regulations which
are the source in law subserve the social
balance and function as a significant
instrument for protection of human rights
and security of the collective. It is because
fundamentally laws are made for their
obedience so that every member of the
society lives peacefully in a society to
achieve his individual as well as social
interest. That is why Edmond Burke while
discussing about liberty opined, "it is
regulated freedom".
18. It is also to be kept in mind that
individual liberty cannot be accentuated
to such an extent or elevated to such
a high pedestal which would bring in
anarchy or disorder in the society. The
prospect of greater justice requires that
law and order should prevail in a civilized
milieu. True it is, there can be no arithmetical
formula for fixing the parameters in precise
exactitude but the adjudication should
- 23 -
express not only application of mind
but also exercise of jurisdiction on accepted
and established norms. Law and order
in a society protect the established
precepts and see to it that contagious
crimes do not become epidemic. In an
.
organized society the concept of liberty
basically requires citizens to be responsible
and not to disturb the tranquility and safety
which every well-meaning person desires.
Not for nothing J. Oerter stated: "Personal
liberty is the right to act without interference
within the limits of the law."
19. Thus analyzed, it is clear that though
liberty is a greatly cherished value in
the life of an individual, it is a controlled
and restricted one and no element in the
society can act in a manner by consequence
of which the life or liberty of others
is jeopardized, for the rational collective
does not countenance an anti-social or
anti collective act.
30. We may usefully state that when the
citizens are scared to lead a peaceful
life and this kind of offences usher
in an impediment in establishment of
orderly society, the duty of the court
becomes more pronounced and the burden
is heavy. There should have been proper
analysis of the criminal antecedents.
Needless to say, imposition of conditions
is subsequent to the order admitting an
accused to bail. The question should
be posed whether the accused deserves
to be enlarged on bail or not and only
thereafter issue of imposing conditions would
arise. We do not deny for a moment that
period of custody is a relevant factor
but simultaneously the totality of
circumstances and the criminal antecedents
are also to be weighed. They are to be
- 24 -
weighed in the scale of collective cry and
desire. The societal concern has to be
kept in view in juxtaposition of individual
liberty. Regard being had to the said
parameter we are inclined to think
that the social concern in the case at
.
hand deserves to be given priority over
lifting the restriction of liberty of the
accused."
10(v). This Court is conscious of the fact that though
the rigors of Section 37(1)(b)(ii) of the NDPS Act, are not
applicable in offences relating to Small Quantity or
Intermediate
Quantity but the fact
offences under the NDPS Act are "cognizable offences", in
terms of Section 37(1)(a) of the Act.
remains, that the
In normal parlance, the claim of an accused for
bail has to be examined and tested in the light of the
parameters mandated by the Hon'ble Supreme Court from
time to time. Merely, because the accusation relates to
either a small or Intermediate Quantity, shall neither
confer an automatic right nor a vested right of bail.
Involvement in offences relating to small or intermediate
quantity does not give a license or leverage to a person to
indulge in nefarious activities. The Court has to form an
opinion regarding the involvement of an accused, from
- 25 -
the Case Diary or the Status Report(s) or other available
material, and in normal situations, aforesaid material
must prevail unless the same is contradicted and/or
.
overcome or is disproved by other evidence which on the
face of it casts doubt on the material(s) gathered by the
prosecution. Enlargement on bail merely because the offence-
accusation relates to small or Intermediate Quantity,
despite, the fact that the material on record reveals the
prima facie case or reasonable grounds shall certainly
result in adding wings to their flight and giving leverage to
such suspect-accused to continue, expand and flourish in
inhumane, prohibited, illegal and nefarious activities. Persons
including in these activities curtail the fundamental right
of a commoner to live with dignity, by causing adversarial
effect on his mental and physical state, including health
who fall prey to these activities.
10(vi). The exception to this principle, is that
the enlargement on bail {be it relates to either small
quantity or intermediate quantity of contraband} can be
extended, on case to case basis, when the available material
does not points towards the prima facie involvement
- 26 -
and the past conduct being unblemished, subject to the
fulfillment of other broad parameters, mandated by the
Hon'ble Supreme Court, from time to time as detailed herein.
.
ANALYSIS OF CLAIM IN INSTANT CASE
11. Notwithstanding the orders dated 29.05.2024
[Annexure P-1], passed by Learned Trial Court, dismissing
the bail application, this Court proceeds to examine the
prayer of the petitioner(s) for bail in instant case(s).
12. After taking into consideration entirety of the
facts and circumstances of the case; and the material
on record; and the statutory provisions; and the mandate
of law, as referred to above, this Court is of the considered
view, that all the bail petitioners [Aditya Chauhan,
Paras Justa and Ashutosh Sanolta, Abhay Chauhan and
Vishva Raj Singh], are not entitled to be enlarged on bail,
at this stage, for the following reasons :-
12(i). The prima facie accusation is made out against all
the bail petitioner(s), at this stage.
12(ii). The material on record, which is borne out from
the Status Report filed in respective cases, which are
- 27 -
pari-materia, indicates that, reasonable grounds exist, to
believe the accusation against the bail petitioner(s), in view
of the following aspects :-
.
12(iii). PRIMA FACIE ACCUSATION BETWEEN MAIN
SUPPLIER [SAHIL KUMAR] AND MAIN PEDDLERS
[PARIKSHIT DHANI, ADITYA CHAUHAN, PARAS
JUSTA, ASHUTOSH SANOLTA]
Perusal of Status Report filed by the State
Authorities indicates that Parikshit Dhani was arraigned
as accused, from whom the contraband was recovered
by the police. Even the accused, Parikshit Dhani, has
affirmed in the statement that he used to procure prohibited
substances [Heroin/Chitta] from Sahil Kumar [main
supplier], who was a resident of Moti Jagran Complex,
Chandigarh [UT]. Material on record reveals that Parikshit
Dhani, Aditya Chauhan, Paras Justa and Ashutosh
Sanolta [main peddlers] were room mates at Chandigarh
[UT], who belonged to Theog and Kotkhai in District Shimla
[HP].
12(iv). PRIMA FACIE ACCUSATION BETWEEN MAIN
PEDDLERS AND FIVE OTHER LOCAL PEDDLERS
[ABHAY CHAUHAN, VISHVA RAJ SINGH, RAHUL,
RAKSHIT AND VIKRAM CHAUHAN]
Status Report reveals that four main peddlers
- 28 -
namely [Parikshit Dhani, Aditya Chauhan, Paras Justa and
Ashotosh Sanolta], after purchasing the contraband from
main supplier [Sahil Kumar of Chandigarh], stored the
.
contraband at different locations at Theog and Kotkhai in
District Shimla [HP] and they resorted to the further sale
and purchase of drugs-narcotics [Heroin/Chitta], to the
local youth/people in Theog and Kotkhai areas of District
Shimla through their local agents namely Abhay Chauhan,
Vikram Chauhan.
r to
Vishva Raj Singh, Rahul Sharma, Parikshit Dhani and
12(v). MODUS OPERANDI AND CONCERTED EFFORT BY
ALL TEN [10] ACCUSED TOWARDS ILLICIT
TRAFFICKING: SALE, PURCHASE AND INTER-
STATE IMPORT:
Reference to the Status Report reveals that
Sahil Kumar was the main supplier. Four main peddlers,
namely Parikshit Dhani, Aditya Chauhan, Paras Justa
and Ashutosh Sanolta [bail petitioners] purchased the
contraband [Heroin/Chitta] stored the same at different
locations and they used to effectuate the sale and purchase
of Heroin, to local youth/people of Kotkhai and Theog areas
of District Shimla, through their local peddlers, namely
- 29 -
Abhay Chauhan, Vishva Raj Singh, Rahul Sharma,
Rakshit Chauhan and Vikram Chauhan.
Status Report points out the modus operandi
.
whereby, contraband was supplied by main supplier,
Sahil Kumar, to four main peddlers [namely Parikshit
Dhani, Aditya Chauhan, Paras Justa and Ashutosh Sanolta],
who ensured its transportation from Chandigarh [UT] to
Kotkhai/Theog areas of District Shimla [HP]. Material on
record, indicates that these four main peddlers kept-stored
the contraband at different locations in Kotkhai/Theog. Sale
was effectuated by main four peddlers in the area of
Kotkhai/Theog through the sub-local peddlers [namely,
Abhay Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit
Chauhan and Vikram Chauhan]. The material on record
suggests these five local peddlers sold the contraband
[Heroin/Chitta] to local youth-persons, after being satisfied,
about the location of purchaser in the area.
Status Report indicates the Call Detail Records
of all these ten accused, during October 2023 to February
2024; between the main supplier, Sahil Kumar; and
main peddlers, namely Parikshit Dhani, Aditya Chauhan,
- 30 -
Paras Justa, Ashutosh Sanolta [bail petitioners] and
others, Rakshit Chauhan and Vikram Chauhan that all
accused were in constant touch with each other through
.
their mobile and Whatsapp, so as to effectuate the Sale,
Purchase, Transport and Inter-State Import of Heroin/Chitta,
which is clear from the extract of Call Detail Records, as
under :-
Call Detail Records between October 2023 to February 2024
Sr. Calls From Calls To No. of Calls
No.
1 [main supplier]
r [main peddler]
2 [main peddler] [another main peddler &
bail petitioner]
3 [main peddler] [another main peddler &
bail petitioner]
4 [main peddler] [another main peddler &
bail petitioner]
Parikshit Dhani Abhay Chauhan NIL
5 [main peddler] [local peddler & bail
petitioner]
6 [main peddler] [local peddler & bail
petitioner]
7 [main peddler] [local peddler]
8 [main peddler] [local peddler]
9 [main peddler] [local peddler]
- 31 -
Even the Status Report further indicates that
there are financial transactions, which is clear from Bank
Transaction Details Record [BDRs] between the main
.
supplier [Sahil Kumar], and four main peddlers namely
Parikshit Dhani, Aditya Chauhan, Paras Justa and Ashutoh
Sanolta [bail petitioners] and the local peddlers, Abhay
Chauhan, Vishva Raj Singh, Rahul Sharma, Rakshit
Chauhan and Vikram Chauhan during the four months
period w.e.f. October/November 2023 to February 2024, is
borne out from the following extract:-
Bank Transaction Details between October 2023 to February 2024
Sr. Name of accused Name of co-accused Total amount
No. [main peddlers and
local peddlers]
1 Sahil Kumar Parikshit Dhani Rs.4,16,243/-
[main supplier] Paras Justa
Abhay Chauhan
2 Aditya Chauhan Parikshit Dhani Rs.3,71,000/-
[main peddler & bail Rahul Sharma
petitioner] Vishwajeet
Sahil Kumar
3 Paras Justa Parikshit Dhani Rs.3,97,206/-
[main peddler & bail Sahil Kumar
petitioner]
4 Ashutosh Sanolta Parikshit Dhani Rs.3,32,101/-
[main peddler & bail Vishva Raj Singh
petitioner]
5 Vishva Raj Singh Parikshit Dhani Rs.1,40,888/-
[local peddler & bail Ashutosh Sanolta
petitioner] Aditya Chauhan
Rakshit Chauhan
6 Rahul Sharma Parikshit Dhani Rs.2,08,000/-
[local peddler] Abhay Chauhan
Rakshit Chauhan
7 Rakshit Chauhan Parikshit Dhani Rs.55,000/-
[local peddler] Vishva Raj Singh
[absconding]
- 32 -
8 Vikram Chauhan Parikshit Dhani Rs.46,200/-
[local peddler]
[absconding]
9 Abhay Chauhan Parikshit Dhani Rs.28,550/-
[local peddler & bail
petitioner]
.
12(vi). GRAVITY OF OFFENCE IN THIS CASE:
In the instant case, though the contraband
[Heroine/Chitta], recovered from the accused Parikshit
Dhani on 14.02.2024 was 12.06 grams, which at the time
of complying with Section 52 of Act, came out to be 8.58
grams, yet, the material on record suggests that all the
accused, including the main supplier [Sahil Kumar] and
the other accused-main peddler Parikshit Dhani and the
bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh
Sanolta], had resorted to frequent bank transactions
since October 2023 till February 2024, of about Rs.20,00,000/-
[Rupees Twenty Lakh], during this period. Even the call
detail records reveal that all these accused were in
constant/regular touch with each other ranging between 199
calls to 469 calls [except in case of Abhay Chauhan and
Vishva Raj Singh], during the period of four months from
October/November 2023 to February 2024, which fortifies
the accusation, revealing prima facie accusation pointing
- 33 -
the nefarious activities of Sale, Purchase and Inter State
Import of contraband [Heroine/Chitta], from Chandigarh
[UT] to Kotkhai and Theog in District Shimla [H.P.], through
.
their local peddlers, namely Abhay Chauhan, Rahul
Sharma, Vishva Raj Singh, Rakshit Chauhan and Vikram
Chauhan concerted, well mediated and coordinated design
by all ten accused, including the bail petitioners since
October 2023 till February 2024 by giving effect to the
illegal and nefarious activities of sale, purchase, transport
and Inter-State Import of Heroin/Chitta is borne out from
the material on record.
12(vii). DANGEROUSITY-HARMFULLNESS OF DRUGS-
HAVING KILLING INSTINCT
While dealing with the dangerousity, harfullness
and killing instinct of the nefarious street drug
[Heroin/Chitta] has been outlined by the Hon'ble Supreme
Court, in Hira Singh versus Union of India, (2020)
20 SCC 272, that the provisions of the NDPS Act are
not to be construed liberally but the effective
implementation of the rule of law and the object of
the enactment {NDPS} can be achieved by curbing and
- 34 -
stringently dealing with the nefarious activities and illegal
trafficking of the most powerful, dangerous and injurious
illegal street drug(s) under the NDPS Act, as under:
.
"10.3 At this stage, it is required to be noted
that illicit drugs are seldom sold in a pure
form. They are almost always adulterated
or cut with other substance. Caffeine is
mixed with heroin, it causes that heroin
to vaporize at a lower rate. That could
allow users to take the drug faster and
get a big punch sooner. Aspirin, crushed
tablets, they could have enough powder
to amend reversal 34 doses of drugs.
Take example of heroin. It is known as
powerful and illegal street drug and opiate
derived from morphine. This drug can
r easily be "cut" with a variety of different
substances. This means that drug dealer
will add other drugs or non-intoxicating
substances to the drug so that they can
sell more of it at a lesser expense to
themselves. Brown-sugar / smack is usually
made available in power form. The substances
is only about 20% heroin. The heroin is
mixed with other substances like chalk
powder, zinc oxide, because of these,
impurities in the drug, brown-sugar is
cheaper but more dangerous. These are
only few examples to show and demonstrate
that even mixture of narcotic drugs or
psychotropic substance is more dangerous.
Therefore, what is harmful or injurious
is the entire mixture/tablets with neutral
substance and Narcotic Drugs or
Psychotropic Substances. Therefore, if it is
accepted that it is only the actual content
by weight of offending drug which is
relevant for the purpose of determining
whether it would constitute small quantity
- 35 -
or commercial quantity, in that case, the
object and purpose of enactment of NDPS
Act would be frustrated. There may be
few punishment for "commercial quantity".
Certainly that would not have been the
intention of the legislature...."
.
10.5 The problem of drug addicts is
international and the mafia is working
throughout the world. It is a crime against
the society and it has to be dealt with iron
hands. Use of drugs by the young people in
India has increased. The drugs are being
used for weakening of the nation. During
the British regime control was kept on the
traffic of dangerous drugs by enforcing
the Opium Act, 1857. The Opium Act, 1875
and the Dangerous Drugs Act, 1930. However,
with the passage of time and the development
in the field of illicit drug traffic and during
abuse at national and international level,
many deficiencies in the existing laws have
come to notice. Therefore, in order to
remove such deficiencies and difficulties,
there was urgent need for the enactment
of a comprehensive legislation on Narcotic
Drugs and Psychotropic Substances,
which led to enactment of NDPS Act. As
observed herein above, the Act is a special
law and has a laudable purpose to serve
and is intended to combat the menace
otherwise bent upon destroying the
public health and national health. The
guilty must be in and the innocent
ones must be out. The punishment part
in drug trafficking is an important one
but its preventive part is more important.
Therefore, prevention of illicit traffic in
Narcotic Drugs and Psychotropic
Substances Act, 1988 came to be
introduced. The aim was to prevent illicit
traffic rather than punish after the
offence was committed. Therefore, the
- 36 -
Courts will have to safeguard the life
and liberty of the innocent persons.
Therefore, the provisions of NDPS Act are
required to be interpreted keeping in mind
the object and purpose of NDPS Act ; impact
on the society as a whole and the Act
.
is required to be interpreted literally
and not liberally which may ultimately
frustrate the object, purpose and preamble
of the Act ...."
12(viii). In order to achieve the Rule of Law under
the NDPS Act, while dealing with the claim for enlargement
on bail, a situation, where the disclosure statements
was corroborated with supportive evidence i.e. Call Detail
Records and Bank Account Records, the High Court of
Delhi, in Bail Application No.1295/2022, Avdhesh v. State
[NCT of Delhi], Neutral Citation No.2022/DHC/003566,
decided on 26.08.2022, held as under :-
"6.1. The first ground taken in the bail
application is that the applicant/accused was
not named in the secret information. It is true
that the name of the petitioner was not there
in the secret information, however, the main
accused during his disclosure statement has
named the present petitioner as supplier of
poppy straw, so not naming the applicant in
secret information is not itself a ground to
release the present petitioner on bail.
Similarly, it is true that no contraband was
recovered either from the possession of the
present petitioner or at his instance as the
recovery was made at the instance of main
accused Omkar but the present petitioner
- 37 -
has been named as supplier of poppy straw
at the instance of the main accused, so
both of them were in conspiracy with each
other.
6.2. The next ground taken in the application
.
is that the disclosure statements are not
admissible and there is no supportive
evidence. The question of disclosure
statement being admissible or not admissible,
will be decided at appropriate stage.
Moreover, the said statement is supported
by evidence regarding payment made by
main accused in the bank account of the
wife of the present petitioner and 191 calls
being exchanged between the main accused
and the present petitioner.
r 8. The bail application is dismissed."
12(ix). In Cr.MP(M) No.273 of 2024, Davinder @
Chhinda vs State of Himachal Pradesh, this Court has
denied the concession of bail, where the prima facie
accusation reflecting the Sale, Purchase, Transport and
Inter-State Import, causing deleterious and deadly effect
on the society, in larger societal interests, as under:-
"17(v). Now this Court proceeds to examine
the gravity and severity of the accusation,
offence against the bail petitioner. In the
present case, it is the bail petitioner, who
managed the entire show leading towards the
sale, purchase, transport and inter-State
import of the alleged contraband i.e. the
heroin/chitta [weighting 49.03 gms] i.e. 39.70
gms and 9.33 gms was recovered by the Police
from two persons [Rishab Sehgal and Anish
Sonker], who were sent to Delhi to meet the
- 38 -
Nigerian, at the behest of the bail petitioner,
as referred to above.
In terms of the NDPS Act and Schedule
to the Act, any narcotic drug or psychotropic
substances is categorized into small and
commercial quantity. By interpretative
.
process, any quantity which exceeds the
specification(s) for "Smaller Quantity" but
remains below the limit for "Commercial
Quantity" has been categorized as
"Intermediate Quantity". As per the Act and
Schedule thereto, in case of Heroin/Chitta,
the quantity upto 5 gms falls within "Small
Quantity' and quantity exceeding 5 gms
to below 249 gms comes within the ambit
of "Intermediate Quantity".
In the instant case, the bail petitioner
was involved in more than 49.03 gms of
Heroin/Chitta, which is nine times more than
the maximum prescribed limit for smaller
quantity, for which the punishment stretches
over to rigorous imprisonment for a period
upto 10 years or with fine. Notably, the
gravity of this street drug [heroin/chitta
weighing 49.03 gms], is much more than
the offences relating to murder, culpable
homicide, rape, grievous hurt etc., for the
reason, that in the case of rape or murder
or culpable homicide or grievous hurt etc.,
it can have adversarial and killing instinct
on countable persons; but the harmful,
injurious and dangerousity of heroin/chitta
is more graver and its culpability is writ
large. In view of the gravity of the alleged
offence, as explained in case of Hira Singh
[supra] coupled with the fact that it is the
modus operandi of these persons, that they
resort to peddling in small or intermediate
quantity of contraband, hoping that the
Court(s) liberally construe the alleged
involvement in small or intermediate quantity
for purpose of bail. Merely because the
- 39 -
quantity allegedly involved is "Intermediate
Quantity {49.03 grms of Heroin/ Chitta}" the
same shall ipso facto cannot confer a right or
leverage or license for claiming or granting bail
and the rule of law cannot be permitted to be
scuttled, as in this case. Such nefarious-
.
illegal drug trafficking and drug peddling
and trading needs to be strictly dealt with
and curbed, so that in coming times an
uncontrollable adversial situation may
not arise; when, one may have to repent
later.
Accordingly, the gravity of the alleged
offence in the instant case, restrains this
Court, from showing any indulgence, at this
stage."
12(x). Taking into account the facts narrated above,
the instant case reveals an alarming state of affairs.
Though the FIR was registered on 14.02.2024, yet all
ten [10] accused persons i.e. the main supplier [Sahil
Kumar] resorted to the Sale-supply of Heroin/Chitta to
the four main peddlers, namely Parikshit Dhani, Aditya
Chauhan, Paras Justa, Ashutosh Sanolta [bail petitioners]
and these four accused further indulged in the Sale/
transportation of contraband to the sub-local peddlers;
namely, Abhay Chauhan, Vishva Raj Singh [bail petitioners],
Rahul Sharma, Rakshit Chauhan and Vikram Chauhan,
who further resorted to the sale, purchase of Heroin/
Chitta, to the local youth/people in the areas of
- 40 -
Kotkhai/Theog in District Shimla [HP]. Status Report(s)
reveal that all these ten accused were in constant touch
with each other, which is borne out from the Bank
.
Transaction Detail Records [BTDRs] and the Call Detail
Records [CDRs], for the period from October 2023 to February
2024. Not only this, the Status Report reveals that all these
ten accused had resorted to nefarious activities for quite
some time. The dangerousity and killing instinct of
Heroin/Chitta is much more grave and serious vis-à-vis
other graver offences like rape-murder etc. Since all ten
accused persons have acted in a well knit and concerted
design then, the prima facie accusation becomes more
graver, having adversarial effects on numerous persons in
the community-society. In peculiar facts of this case, where,
ten accused persons have indulged in nefarious activities,
therefore, the personal liberty of the petitioners herein
shall certainly have to succumb to the larger societal
interests, at this stage. Moreover the prima facie and
reasonable grounds points towards the accusation against
the bail petitioners and therefore, this Court refrains itself
from enlarging the bail petitioners, in larger societal
- 41 -
interests, at this stage.
CONTENTION OF LEARNED COUNSEL FOR
PETITIONER(S)
13. Learned Senior Counsel Mr. Ajay Kochhar and
.
Mr. Arsh Chauhan and Mr. Hamender Singh Chandel,
advocates have contended that the CDRs cannot be the
basis for denying bail, is without any merit, for the
reason, that prima facie accusation revealing criminal
conspiracy and culpability in view of the 'Bank Transaction
Detail Records [BTDRs]' and the 'Call Detail Records [CDRs]'
inter se, the main supplier [Sahil Kumar] and
four main peddlers-accused Parikshit Dhani and the
present bail petitioners [Aditya Chauhan, Paras Justa,
Ashutosh Sanolta and other accused Abhay Chauhan and
Vishva Raj Singh].
Notably, in Narcotics Control Bureau vs
Mohit Aggarwal AIR 2022 SC 3444, Hon'ble Three Judges,
of the Supreme Court upheld the prima facie accusation,
on the basis of Bank Transaction(s) and CDRs, in the
following terms :-
"16. Coming back to the facts of the instant
case, the learned Single Judge of the High
Court cannot be faulted for holding that the
- 42 -
appellant NCB could not have relied on the
confessional statements of the respondent and
the other co-accused recorded under Section
67 of the NDPS Act in the light of law laid
down by a Three Judges Bench of this Court
in Tofan Singh (supra), wherein as per the
.
majority decision, a confessional statement
recorded under Section 67 of the NDPS Act
has been held to be inadmissible in the
trial of an offence under the NDPS Act.
Therefore, the admissions made by the
respondent while in custody to the effect that
he had illegally traded in narcotic drugs, will
have to be kept aside. However, this was not
the only material that the appellant NCB
had relied on to oppose the bail application
filed by the respondent. The appellant-NCB
had specifically stated that it was the
disclosures made by the respondent that had
led the NCB team to arrive at and raid the
godown of the co-accused, Promod Jaipuria
which resulted in the recovery of a large haul
of different psychotropic substances in the
form of tablets, injections and syrups. Counsel
for the appellant-NCB had also pointed out
that it was the respondent who had disclosed
the address and location of the co-accused,
Promod Jaipuria who was arrested later on
and the CDR details of the mobile phones
of all co-accused including the respondent
herein showed that they were in touch with
each other.
17. Even dehors the confessional
statement of the respondent and the other
co-accused recorded under Section 67
of the NDPS Act, which were subsequently
retracted by them, the other
circumstantial evidence brought on record
by the appellant-NCB ought to have
dissuaded the High Court from exercising
its discretion in favour of the respondent
and concluding that there were reasonable
- 43 -
grounds to justify that he was not guilty of
such an offence under the NDPS Act. We are
not persuaded by the submission made by
learned counsel for the respondent and the
observation made in the impugned order that
since nothing was found from the possession
.
of the respondent, he is not guilty of the
offence for which he has been charged. Such
an assumption would be premature at this
stage.
19. As a result of the aforesaid discussion,
the present appeals are allowed and the
impugned order releasing the respondent
on post-arrest, is quashed and set aside.
The bail bonds of the respondent are cancelled
and he is directed to be taken into custody
forthwith."
13(i). While setting aside a bail order, [though under
Section 37 of the Act], whereby, the Call Detail Records
[CDRs] indicated that one accused was in constant touch
with other accused, the Hon'ble Supreme Court, in Union
of India through Narcotics Control Bureau, Lucknow vs
Md. Nawaz Khan, Criminal Appeal No.1043 of 2021,
has held as under :-
"30. The following circumstances are crucial
to assessing whether the High Court has
correctly evaluated the application for bail,
having regard to the provisions of Section 37:
(i) The respondent was travelling in the
vehicle all the way from Dimapur in
Nagaland to Rampur in Uttar Pradesh with
the co-accused;
- 44 -
(ii) The complaint notes that the CDR
analysis of the mobile number used by
the respondent indicates that the
respondent was in regular touch with
the other accused persons who were
known to him;
.
(iii) The quantity of contraband found in the
vehicle is of a commercial quantity; and
(iv) The contraband was concealed in the
vehicle in which the respondent as
travelling with the co-accused.
32. The High Court has clearly overlooked
crucial requirements and glossed over the
circumstances which were material to the
issue as to whether a case for the grant of
bail was established. In failing to do so, the
order of the High Court becomes
unsustainable. Moreover, it has emerged,
r during the course of the hearing that after the
respondent was enlarged on bail he has
consistently remained away from the criminal
trial resulting in the issuance of a non-
bailable warrant against him. The High Court
ought to have given due weight to the
seriousness and gravity of the crime which it
has failed to do.
33. For the above reasons, we allow the
appeal and set aside the impugned judgment
and order of the High Court dated 1 October
2020 in Bail No.7379 of 2019."
13(ii). Moreover, while dealing with the claim for bail
under the Special enactments under TADA, MCOCA, WAPA
including NDPS, the Hon'ble Supreme Court, in Union of
India vs Barakathullah, 2024 SCC Online SC 1019,
mandated that, at the stage of bail, the materials collected,
- 45 -
statements recorded or documents cannot be discarded on
the ground of being not reliable or inadmissible in evidence,
in the following terms :-
.
"10. Since all offences alleged against the
respondents are covered under Chapter
IV and VI of the UAPA, the rigors and
restrictions of sub-section (5) of Section 43D
would apply to the facts of this case. It may
be noted that this Court in case of National
Investigation Agency v. Zahoor Ahmad
Shah Watali (supra), had an occasion to deal
with the subsection (5) of Section 43D and
in similar fact situation, after comparing
the similar provisions under the Special
enactments such as TADA, MCOCA, NDPS
as also the earlier decisions of this court,
r had held as under:
"23. .....By its very nature, the expression
"prima facie true" would mean that the
materials/evidence collated by the
investigating agency in reference to
the accusation against the accused
concerned in the first information
report, must prevail until contradicted
and overcome or disproved by other
evidence, and on the face of it, shows
the complicity of such accused in the
commission of the stated offence. It
must be good and sufficient on its face
to establish a given fact or the chain of
facts constituting the stated offence,
unless rebutted or contradicted. In one
sense, the degree of satisfaction is lighter
when the Court has to opine that the
accusation is "prima facie true", as
compared to the opinion of the accused
"not guilty" of such offence as required
under the other special enactments. In
any case, the degree of satisfaction to be
- 46 -
recorded by the Court for opining that
there are reasonable grounds for believing
that the accusation against the accused is
prima facie considering a discharge
application or framing of charges in
relation to offences under the 1967
.
Act......."
11. It was further observed :-
"24. A priori, the exercise to be
undertaken by the Court at this stage -
of giving reasons for grant or non-
grant of bail--is markedly different from
discussing merits or demerits of the
evidence. The elaborate examination or
dissection of the evidence is not required to
be done at this stage. The Court is
merely expected to record a finding
on the basis of broad probabilities
regarding the involvement of the
r accused in the commission of the
stated offence or otherwise.
25. From the analysis of the impugned
judgment [Zahoor Ahmad Shah Watali v.
NIA, 2018 SCC OnLine Del 11185] , it
appears to us that the High Court has
ventured into an area of examining
the merits and demerits of the
evidence. For, it noted that the
evidence in the form of statements of
witnesses under Section 161 are not
admissible. Further, the documents
pressed into service by the investigating
agency were not admissible in evidence. It
also noted that it was unlikely that the
document had been recovered from the
residence of Ghulam Mohammad Bhatt
till 16-8-2017. Similarly, the approach
of the High Court in completely
discarding the statements of the
protected witnesses recorded under
Section 164 CrPC, on the specious
- 47 -
ground that the same was kept in a
sealed cover and was not even perused
by the Designated Court and also because
reference to such statements having been
recorded was not found in the charge-
sheet already filed against the respondent
.
is, in our opinion, in complete disregard of
the duty of the Court to record its opinion
that the accusation made against the
accused concerned is prima facie true or
otherwise. That opinion must be
reached by the Court not only in
reference to the accusation in the FIR
but also in reference to the contents of
the case diary and including the
charge-sheet (report under Section 173
CrPC) and other material gathered by
the investigating agency during
investigation."
r 27. For that, and presented along with
the report the totality of the material
gathered by the investigating agency
and including the case diary, is
required to be reckoned and not by
analysing individual pieces of evidence
or circumstance. In any case, the
question of discarding the document
at this stage, on the ground of being
inadmissible in evidence, is not
permissible. For, the issue of
admissibility of the document/
evidence would be a matter for trial.
The Court must look at the contents
of the document and take such
document into account as it is."
12. The ratio of the said judgment has been
consistently followed by this Court in
many cases, and recently in Gurwinder Singh
vs. State of Punjab and Another (supra), in
which this court has culled out following
guidelines from Watali's Case:
- 48 -
"34. In the previous section, based on a
textual reading, we have discussed the
broad inquiry which Courts seized of
bail applications under Section 43D(5)
UAP Act r/w Section 439 CrPC must
indulge in. Setting out the framework of
.
the law seems rather easy, yet the
application of it, presents its own
complexities. For greater clarity in the
application of the test set out above,
it would be helpful to seek guidance
from binding precedents. In this regard,
we need to look no further than Watali's
case which has laid down elaborate
guidelines on the approach that Courts
must partake in, in their application of
the bail limitations under the UAP Act.
On a perusal of paragraphs 23 to 29
and
32, the following 8-point propositions
emerge and they are summarised as
follows:
•Meaning of 'Prima facie true' [para 23]:
On the face of it, the materials must
show the complicity of the accused
in commission of the offence. The
materials/evidence must be good and
sufficient to establish a given fact
or chain of facts constituting the
stated offence, unless rebutted or
contradicted by other evidence.
• Degree of Satisfaction at Pre-Charge
sheet, Post Chargesheet and Post-
Charges- Compared [para 23] :
Once charges are framed, it would be
safe to assume that a very strong
suspicion was founded upon the
materials before the Court, which
prompted the Court to form a
presumptive opinion as to the existence of
the factual ingredients constituting the
- 49 -
offence alleged against the accused, to
justify the framing of charge. In that
situation, the accused may have to
undertake an arduous task to satisfy the
Court that despite the framing of charge,
the materials presented along with the
.
charge-sheet (report under Section 173
CrPC), do not make out reasonable
grounds for believing that the accusation
against him is prima facie true. Similar
opinion is required to be formed by the
Court whilst considering the prayer for
bail, made after filing of the first report
made under Section 173 of the Code,
as in the present case.
• Reasoning, necessary but no detailed
evaluation of evidence [para 24] :
The exercise to be undertaken by the
Court at this stage--of giving reasons
for grant or non-grant of bail--is markedly
different from discussing merits or
demerits of the evidence. The elaborate
examination or dissection of the evidence
is not required to be done at this stage.
• Record a finding on broad
probabilities, not based on proof
beyond doubt [para 24]:
"The Court is merely expected to record
a finding on the basis of broad
probabilities regarding the involvement
of the accused in the commission of the
stated offence or otherwise."
• Duration of the limitation under
Section 43D(5) [para 26] :
The special provision, Section 43-D of
the 1967 Act, applies right from the stage
of registration of FIR for the offences
under Chapters IV and VI of the 1967 Act
until the conclusion of the trial thereof.
- 50 -
• Material on record must be analysed
as a 'whole'; no piecemeal analysis
[para 27] :
The totality of the material gathered by the
investigating agency and presented along
with the report and including the case
.
diary, is required to be reckoned and not
by analysing individual pieces of evidence
or circumstance.
• Contents of documents to be
presumed as true [para 27] :
The Court must look at the contents of
the document and take such document
into account as it is.
• Admissibility of documents relied
upon by Prosecution cannot be
r questioned [para 27] :
The materials/evidence collected by
the investigation agency in support of
the accusation against the accused in
the first information report must
prevail until contradicted and
overcome or disproved by other
evidence....... In any case, the question
of discarding the document at this
stage, on the ground of being
inadmissible in evidence, is not
permissible."
19. Though it was sought to be submitted by
learned counsel appearing for the respondents
that the material/evidence collected by the
Investigating Agency and statements of
witnesses relied upon by the prosecuting
agency is not reliable, the said submission
cannot be accepted. As held by this Court in
Watali's case, the question of discarding
the material or document at the
stage of considering the bail application
of an accused, on the ground of being not
reliable or inadmissible in evidence, is not
- 51 -
permissible. The Court must look at the
contents of the documents and take such
documents into account as it is and satisfy
itself on the basis of broad probabilities
regarding the involvement of the accused
in the commission of the alleged offences
.
for recording whether a prima facie case is
made out against the accused.
24. In that view of the matter, the impugned
order passed by the High Court is set aside.
The respondents shall forthwith surrender
themselves before the appellant-NIA. Since,
the chargesheet has already been submitted
before the Special Court, it is directed that
the Special Court shall proceed with the
trial as expeditiously as possible and in
accordance with law, without being influenced
by any of the observations made by this Court
in this order."
13(iii). A Coordinate Bench of this Court, in Cr.MP(M)
No.1636 of 2023, Rakesh Kumar vs State of Himachal
Pradesh, decided on 11.12.2023, has held that the
material borne out from the CDRs and Bank Transactions
are sufficient to construe the accusation, in the following
terms :-
"27. It has been further contended that
petitioner has not been involved only on
the basis of Call Detail Report, but there
are transactions of substantially huge
amount from the petitioner to Khushwind
as well a Hari Mohan Dass, which are
sufficient to construe involvement of the
petitioner in commission of offence,
particularly when after arrest of Khushwind,
- 52 -
petitioner had eloped and not only this Hari
Mohan Dass is not traceable till date and,
therefore, it has been submitted that it cannot
be said that there is not even remote link
between the recovery of charas from
Kushwind and amount paid by the petitioner
.
Rakesh Kumar to Kushwind. It has been
further contended that there was/is no enmity
between kushwind and Rakesh Kumar and,
therefore, there was no occasion for Kushwind
to implicate Rakesh Kumar by making
statement before the Police regarding
ownership and transportation of charas.
32. With respect to delay, it has been
contended by learned Additional Advocate
General that there is no inordinate delay
in completion of trial because trial is likely to
be completed within reasonable period of
three years and for recovery of huge quantity
r of charas and evidence of involvement of
petitioner therein, petitioner is not
entitled for bail, as he has been found
involved in commission of heinous crime
damaging and society as well as Nation."
PLEA OF FALSE IMPLICATION: MISCONCEIVED
14. The Learned Senior Counsel contended that
the bail petitioner(s) have been falsely implicated is
without any substance. Notably, even Learned Senior
Counsel has not pointed out anything to show that the
prima facie accusation is not made out at this stage.
However, the material on record indicates the prima facie
connection and linkage [based on BTDRs and CDRs] worth
- 53 -
lakhs of rupees inter se the main supplier, [Sahil Kumar]
and the other main peddlers-accused Parikshit Dhani
including the bail petitioners [Aditya Chauhan, Paras
.
Justa and Ashutosh Sanolta] and other sub-peddlers
revealing the modus operandi, intention and common design
and integrated effort revealing conspiracy/culpability in
committing offence relating to illegal and nefarious drug
trade by resorting to the Sale, Purchase, Transport and Inter-
State Import of contraband by all ten accused. In these
circumstances, the claim of the petitioners for bail is without
any merit, at this stage.
TWO ACCUSED STILL ABSCONDING:
15. The prayer of Learned Senior Counsel for bail
is not tenable, at this stage, for the reason, that out of
ten accused, two of the accused, namely, Rakshit Chauhan
and Vikram Chauhan are absconding. Grant of bail to
bail petitioners shall certainly add wings to the in-flight,
giving rise to every likelihood of the bail petitioners
fleeing away along with absconded accused and therefore,
the prayer is declined, at this stage.
- 54 -
POSSIBILITY OF INDULGING IN ILLICIT
TRAFFICKING VIOLATING SOCIETAL INTERESTS :-
16. The prayer for bail is not tenable, in view of
the fact that all ten accused including the bail
.
petitioners, were acting with a predetermined mind to
resort to sale, purchase, transportation and Inter-State
Import of contraband. Enlargement on bail will give rise
to possibility that the bail petitioner(s) will again indulge
in illegal and nefarious trafficking-activities being carried
out by them from October 2023 till the registration of FIR
dated 14.02.2024, which was continued thereafter, which
is borne out from the Bank Transactions [BTDRs] to the
tune of lakhs of rupees and the CDRs on record. In these
circumstances, in larger societal interests, this Court
refrains itself, from granting the concession of bail to the
bail petitioners [Aditya Chauhan, Paras Justa, Ashutosh
Sanolta, Abhay Chauhan and Vishva Raj Singh], at this
stage.
RELIANCE ON JEET RAM'S CASE: DISTINGUISHABLE
17. Learned Senior Counsel has relied upon a
judgment passed by the Hon'ble Supreme Court in
- 55 -
Special Leave to Appeal [CRL] No.5822/2024, titled as
Jeet Ram vs State of Himachal Pradesh, to support
his contention, which reads as under:-
.
"3. The appellant is charged with the offences
punishable under Sections 21 and 29 of the
Narcotic Drugs and Psychotropic Substances
Act, 1985. Heroin of the quantity of 8.54
grams was recovered from the co-accused. We
have perused the allegations contained in the
charge-sheet against the appellant. The
allegation seems to be that there was a
transaction between the appellant and the
co-accused under which a sum of
Rs.1,000/- was transferred by the appellant
r to the co-accused by Google Pay."
A perusal of the aforesaid judgment, reveals that
bail was granted therein, as the petitioner-accused [Jeet Ram]
was implicated in view of the transaction of Rs.1,000/-
[Rupees One Thousand], from his Google Pay account.
The facts in case of Jeet Ram [supra], with due
respect, is entirely different from the facts of the present
case, where, the criminal intent, criminal conspiracy and
actual involvement of Sale, Purchase, Transport and Inter-
State Import of Heroin/Chitta is borne out and supportive
from the material on record, revealing the bank transactions
worth lakhs of rupees, which is further supported from
- 56 -
constant conversation made out from the main supplier
Sahil Kumar and other main peddlers-accused [Aditya
Chauhan, Paras Justa, Ashutosh Sanolta and sub-peddlers,
.
namely, Abhay Chauhan and Vishva Raj Singh], along with
the other accused person(s).
RELIANCE ON PALLULABID AHMAD'S CASE:
MISCONCEIVED:
18. Learned Senior Counsel has prayed for bail
in terms of the law in Special Leave to Appeal [CRL]
No.242/2022,r titled as, State by [NCB] Bengaluru
vs Pallulabid Ahmad Arimutta & Anr.
In order to appreciate the contention of the
Learned Senior Counsel, it is necessary to have a recap
of Paras No.8, 9 and 13 of the judgment, in case of
Pullulabid Ahmad Arimutta [supra], as under:-
"8. Vide order dated 05th January, 2020,
learned counsel for the petitioners NCB
were directed to prepare a comprehensive/
tabulated statement with respect to the
role attributed to each of the respondents,
the evidence gathered against them at the
time of their arrest, their antecedents, the
dates on which they were arrested and the
period of custody undergone by them, for
ready reference. The said tabulated statement
has been filed and a perusal thereof reveals
that in SLP (Crl.) @ Diary No.22702/2020,
SLP (Crl.) No.1454/2021, SLP (Crl.) No.
- 57 -
1465/2021, SLP (Crl.) Nos. 1773-1774/2021,
SLP (Crl.) No. 2080/2021, heavy reliance has
been placed by the petitioner-NCB on the
voluntary statements of the accused and the
co-accused recorded under Section 67 of the
NDPS Act for arresting them. Another piece
.
of evidence referred to is the CDR details
in respect of A-3, A-4, A-5, A-6 and A-8 in
the first case which as per the prosecution,
goes to show that the said respondents
were constantly in touch with each other
and with A-1 and A-2 on the date of the
seizure. The attention of this Court was also
drawn to the fact that the antecedents of A-5,
A-6 and A-8 in the first case and A-2 and A-5
in the second case are not clean.
9. Having gone through the records alongwith
the tabulated statement of the respondents
submitted on behalf of the petitioner-NCB and
on carefully perusing the impugned orders
passed in each case, it emerges that except for
the voluntary statements of A-1 and A-2 in
the first case and that of the respondents
themselves recorded under Section 67 of
the NDPS Act, it appears, prima facie, that
no substantial material was available with
the prosecution at the time of arrest to
connect the respondents with the
allegations levelled against them of
indulging in drug trafficking. It has not been
denied by the prosecution that except for the
respondent in SLP (Crl.) No. 1569/2021, none
of the other respondents were found to be in
possession of commercial quantities of
psychotropic substances, as contemplated
under the NDPS Act.
13. Needless to state that the observations
made above are limited to examining the
relief sought in the present petitions for
cancellation of bail. This Court has refrained
from making any observations on the merits
of the case pending before the trial Court."
- 58 -
Perusal of the aforesaid judgment, reveals that
the bail was granted in view of the statements recorded
under Section 67 of NDPS Act, when, "No substantial
.
material was available with the prosecution at the time
of arrest to connect the accused-respondent with the
allegations of indulging in drug trafficking".
In the instant case, there is substantial
material on record, pointing out prima facie accusation and
the factum that reasonable grounds exist [based on active,
regular and innumerable bank transactions worth lakhs
of rupees and mobile calls ranging from 274 and
469, as per the CDRs inter se, within a period of about
4-5 months, between main supplier [Sahil Kumar] and
the other accused Parikshit Dhani and bail petitioners
[Aditya Chauhan, Paras Justa, Ashutosh Sanolta, Abhay
Chauhan and Vishva Raj Singh]. In these circumstances,
the plea for bail, at this stage, is denied in larger
societal interests when, two of the nine accused are
absconding and there is likelihood/possibility that on
release, the bail petitioners may flee away and/or indulge in
- 59 -
nefarious activities again in association with accused who are
absconding, as on day.
RELIANCE ON BHARAT CHAUDHARY'S CASE:
.
19. Learned Counsel(s) for the bail petitioners have
has placed reliance on the judgment passed by the
Hon'ble Supreme Court in Special Leave to Appeal
(Crl.) No. 5703 of 2021, 'Bharat Chaudhary versus
Union of India', for claiming bail; but with all respect,
the fact, situation, in the case of Bharat Chaudhary
[supra], was entirely different [wherein the very genesis of
recovered contraband was in dispute, which was alleged
to be a herb/medicine meant to enhance male potency and
did not attract provisions of NDPS Act; coupled with the
fact that the recovered contraband was not sent for
analysis; and also the factum of prolonged custody of two
years]; whereas, in the instant case, all the accused including
the bail petitioners were in regular and constant touch
which is patently borne out from the CDRs [Call Detail
Records] and BDRs [Bank Detail Records], revealing the
prima facie accusation. The Learned Senior Counsel and
other counsels for the petitioners have neither disputed
- 60 -
nor placed any material to prima facie disbelieve the
accusation, at this stage.
Thus, the prima facie accusation dissuades
.
this Court, to grant bail, in view of the gravity of
offences, coordinate and well knit modus operandi to
effectuate sale, purchase, transport and Inter State Import of
Heroin/Chitta from Chandigarh [UT] to District Shimla [HP];
which was being given effect to from October/November
2023 till the registration of FIR dated 14.02.2024 and
thereafter, till 19.02.2024 in larger societal interests, at
this stage.
MERE COMPLETION OF INVESTIGATION NOT A
GROUND FOR BAIL
20. Mr. Ajay Kochhar, Learned Senior Counsel
and Mr. Arsh Chauhan and Mr. Hamender Singh Chandel,
Advocates, submit that since the investigation is complete
and no custodial interrogation is required by the State
Authorities coupled with the fact that the bail petitioners
have given an undertaking for participating in the
investigation and consequential trial therefore, the bail
may be granted, is in considered view of this Court,
- 61 -
cannot ipso facto be the basis for enlarging the petitioners
on bail, in view of the gravity of the offence when, the
available material points towards the grave and severe
.
prima facie accusation against the bail petitioner(s).
Moreover, the Hon'ble Supreme Court in SLP
(Crl) No. 10810 of 2023 titled as The State of Jharkhand
versus Dhananjay Gupta @ Dhananjay Prasad Gupta
decided on 07.11.2023, has categorically held, that merely
because the investigation is complete or undertaking to
participate in the trial has been furnished cannot in
itself, be a ground for releasing the bail petitioner in
offences of a serious nature, in following terms :-
"4. The reasons that persuaded the High
Court for granting bail to the respondent
have been stated in paragraph-4 of the
impugned order reads, thus:-
"4. Innocence has been claimed by
the learned counsel for the applicant and
undertaking has been given for
participation in the trial. Further, it has
been submitted that no overt act has
been alleged against this applicant.
Investigation is complete. On the above
basis, prayer for bail has been made."
5. When the offences alleged, inter
alia, includes one under Section 307, IPC
and the accused concerned is so arraigned
with the aid of Section 149, IPC, such
submissions, reflected in paragraph or
- 62 -
the mere factum of completion of
investigation by itself, cannot be the
reason(s) for grant of bail without due
consideration of the relevant aspects.
At any rate, mere claim of innocence
or undertaking to participate in the trial
.
or contention of absence of specific
allegation of any overt act cannot, in such
circumstances, be assigned as reasons for
grant of bail in a case of serious nature.
We are of the considered view that in such
circumstances, impugned order deserves to
be set aside and the matter is liable to be
remanded to the High Court for fresh
consideration in accordance with law. In
that view of the matter, the impugned order
dated 12.01.2023 passed by the High Court
in B.A. No.12508 of 2022 stands set aside
and the matter is remanded back to the High
r Court for fresh consideration in accordance
with law. The application which culminated
in the impugned order is restored into the
file in its original number to facilitate such
consideration. We make it clear that we have
not made any observation touching the
merits."
In view of the above discussions and for the
reasons stated above and in the peculiar facts of the
instant case(s), as referred to above, this Court refrains
itself, from acceding to the prayer for bail, in view of
the prima facie accusation and reasonable grounds against
all ten accused, including the bail petitioners herein.
Accordingly, all the bail petition(s) being devoid of any
merit are dismissed, at this stage.
- 63 -
21. The observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
.
the purpose of investigation or for trial, thereafter, in
any manner, which shall proceed, independent of any
of the observations herein, in accordance with law.
In the aforesaid terms, the bail petition(s) are
dismissed and the pending application(s), if any, shall
also stand disposed of.
r to
(Ranjan Sharma)
Judge
July 26th, 2024
(Chiranjeev)
