Himachal Pradesh High Court

Reserved On: 21.10.2024 vs State Of H.P on 25 October, 2024

Author: Virender Singh

Bench: Virender Singh

12024:HHC:10240

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP(M) No. 1511 of 2024

Reserved on: 21.10.2024

Decided on: 25.10.2024 Bhupinder Dutta

... Applicant Versus

State of H.P. ...Respondent ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?

_________________________________________________ __

For the Applicant : Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate.

For the Respondent : Mr. Mohinder Zharaick, Addl. A.G. Virender Singh, Judge

Applicant Bhupinder Dutta has filed the

present application, under Section 483 of Bhartiya

Nagarik Suraksha Sanhita, 2023 (hereinafter

referred to as 'the B.N.S.S.') for releasing him, on 22024:HHC:10240

bail, during the pendency of the trial, in case FIR

No. 125 of 2023, dated 15.9.2023, registered under

Sections 22, 25 and 29 and 8(C) of the Narcotic

Drugs and Psychotropic Substances Act

(hereinafter referred to as 'the NDPS') with Police

Station, Gagret, District Una, H.P.

2. The applicant has pleaded the fact that he

is innocent person and has falsely been implicated

in the present case. According to him, there is no

direct or indirect evidence connecting the petitioner

with the alleged crime.

3. As per the applicant, he is permanent

resident of the address, as mentioned, in the

application, and having deep roots in the society.

4. As per the applicant, investigation, in the

present case, is complete and his custody is no

longer required by the Police, as nothing is to be

recovered from him.

32024:HHC:10240

5. The applicant had tried his luck before the

learned Special Judge-I, Una, District Una, H.P. by

filing bail application bearing No. 148 of 2024,

which was dismissed on 25.5.2024.

6. On the basis of above facts, the applicant,

through his counsel, has given certain

undertakings, for which, the applicant is ready to

abide by, in case, released on bail.

7. On these submissions, a prayer has been

made to allow the bail application.

8. When put to notice, police has filed the

status report, disclosing therein, that on

15.9.2023, Additional Superintendent of Police Shri

Rajender Kumar, ANTF Kangra, has submitted the

ruqua to Police of Gagret, for the registration of the

FIR. In the ruqua, it has been mentioned by the

Additional Superintendent of Police, Shri Rajender

Kumar, ANTF, Kangra that he, alongwith other

police officials, was on patrolling duty and the duty 42024:HHC:10240

to detect the crime, relating to narcotic drugs.

8.1 On 15.9.2023, at about 7: 30 p.m., he i.e.

I.O. was present on the gate of Shiv Bari temple. At

that time, he received a secret information, with

regard to indulgence of one Varinder Kumar @

Bindu, s/o Shri Vikram Chand, R/o ward No. 5,

NAC Gagret, Tehsil Ghanari, District Una, in the

business of selling the narcotic substance.

8.2 As per the information, a big haul of the

medicines was being transported in pick-up No.

HP-36B-8124 to his residential house from Army

Ground, Gagret. The said information was found to

be authentic and reliable. It has also been informed

that in case, the said vehicle is checked, large

quantity of the narcotic substances, could be

recovered.

8. 3 It is the further case of the I.O. that in case,

the efforts to obtain the authorization letter/search

warrant would have been made, in that 52024:HHC:10240

eventuality, contraband could be removed.

Thereafter, Drug Inspector Rajat Sharma was

informed and asked to come near the Army

Ground. Thereafter, the I.O. alongwith the police

officials had proceeded towards the Army Ground,

Gagret. The information under Section, 42(2) of the

NDPS Act, was prepared and was submitted to

SDPO, Amb, through LHC Aruna Kumari, ANTF,

Kangra. When, the I.O., alongwith police officials

reached outside the Army Ground, Gagret, at about

8:10 p.m, he noticed two persons, namely Avinash

Bhardwaj and Kusum Lata, who is Vice President

of Nagar Panchayat, Gagret. Both of them were

apprised about the secret information, as received

by the I.O. and associated in the investigation of

the case.

8.4 When, they entered the Army Ground, then

they noticed the aforesaid pick-up, being driven by

its driver, coming towards Army Ground. The I.O., 62024:HHC:10240

with the help of other police officials, had stopped

the said vehicle. In the meanwhile, Drugs Inspector

Rajat Sharma also reached there, who was also

associated in the investigation, in the presence of

local witnesses. The I.O. has shown his identity

card to both the persons, sitting in the vehicle.

Thereafter, they were inquired about the white

plastic sack. Both of them had disclosed that this

box (builty) belongs to Varinder Kumar @ Bindu,

S/o Shri Vikram Chand. In the presence of these

witnesses, both the said persons were directed to

come out. Thereafter, a white coloured sack was

opened and a card board box, containing 60 card

board boxes were found in it, and in the other box,

59 card board boxes, were found. Drugs Inspector

Rajat Sharma checked the aforesaid boxes, in the

presence of the witnesses, and on opening the

boxes, Cap. Paracetamol, Dicyclomine,

Hydrocholride and Tramadol Hydrochloride 72024:HHC:10240

capsules Proxywel spas were found. Total 14,400/-

capsules were found in the box, which has been

marked as mark-I. In the other box, which has

been marked as mark-2, 14160 capsules were

found. Thus, total 28560 capsules were found.

8. 5 On inquiry, the driver of the pick-up

disclosed his name as Maan Singh, S/o Munna

Ram, VPO Gagret, Tehsil Ghanari, District Una.

8.6 Other codal formalities were completed.

Thereafter, ruqua was prepared and submitted to

Police Station, Gagret, for the registration of the

FIR.

8.7 Initially, the investigation was conducted by

Additional S.P. Rajender Kumar and thereafter, the

same was handed over to I.O./Inspector/Incharge,

Police Station, Gagret, Sh. Sunny Guleria. Spot

map was prepared. Accused Maan Singh and

Mahasu Ram were inquired. Thereafter, the matter

was inquired from Bhupender Dutta S/o Sukhdev 82024:HHC:10240

Chand Dutta, who was running a chemist shop in

Gagret. He was also associated in the investigation.

During investigation, accused Mahasu Ram

disclosed that the photo of goods receipt of the

parcel was forwarded to him by Varinder Kumar @

Bindu, through whatsapp, and he was directed to

receive the said parcel from Kamal Transport,

Gagret, and hand over the same to Varinder Kumar

at his home.

8.8 On inquiry, Bhupender Dutta (applicant)

disclosed that the parcel containing contraband

belong to Varinder Kumar @ Bindu. However, the

bill of the same was issued in the name of Dutta

Medical Agency, Gagret. In lieu of the issuance of

bill, Varinder Kumar @ Bindu used to pay five

boxes of Tramadol free of cost to him.

8.9 It is the further case of the Police that

number of persons were found involved in the case.

Accused    Maan    Singh,         Mahasu   Ram    and
                    92024:HHC:10240

Bhupinder Dutta (applicant) were arrested on

15.9.2023 at about 10:30 p.m. All the four persons

have been medico-legally examined. On 16.9.2023,

they were produced before the Court of learned

Chief Judicial Magistrate, Una, who had remanded

them to Police custody, for three days.

8.10 On 16.9.2023, one Vishal Jaswal informed

the Police that one parcel in the name of Dutta

Medical Agency has been received through Kamal

Transport, upon which, Assistant Drugs Inspector

Shashi Pal reached at the spot, where owner of

Kamal Goods, through Vishal Jaswal, has

produced one parcel alongwith carbon copy of GR

No. A59198, dated 14.9.2023, and one bill of Jan

Priya Pharma 27/16, Chhoti Sabzi Mandi

Janakpuri, New Delhi, to the police. Said bill was in

the name of Dutta Medical Agency, Gagret. When,

the said parcel was opened in the presence of

witnesses, the same was found containing 25,000 102024:HHC:10240

tablets of Tramadol Hydrochloride tablets 100 mg

Clovedol 100 SR, which is a prohibited drug. The

above medicines were taken into possession.

8.11 During investigation, mobile phones of

accused, bearing Nos. 9816042336, 8278733069,

8580581311, as well as, phone of accused Maan

Singh, bearing No. 9816503646 and, of Bhupender

Dutta (applicant), bearing No. 9816956481, were

taken into possession.

8.12 During investigation, it was found that

according to GR No. A59051, dated 12.9.2023, and

GR No. A 59198, dated 14.9.2023, parcel received

through Kamal Goods Carrier Delhi, in the name of

Dutta Medical Agency, Gagret, were forwarded by

Jan Priya Pharma 27/16 Chhoti Sabzi Mandi,

Janakpuri, New Delhi. However, when, the I.O.

verified the said fact, it was found that the said

bills, were not issued by the said firm.

8.13 On 20.9.2023, shop of Bhupender Dutta 112024:HHC:10240

was searched. During search, documents,

pertaining to GR No. 58021, dated 23.8.2023 and

invoice No. 00325, dated 23.3.2023, were found to

be issued by Jan Priya Pharma Company. However,

as per these invoices, these medicines were not

found in the medical store.

8.14 As per letter of the Director General of

Police, Himachal Pradesh, dated 26.9.2023,

investigation of the case was transferred to CID.

Consequently, a Special Investigating Team, under

the leadership of Praveen Dhiman, HPS, Additional

S.P., Cyber Crime, was constituted. On 30.9.2023,

the Special Investigation Team had taken over the

investigation.

8.15 During investigation, it was found that

recovered parcels, containing prohibited drugs were

received at Jaswal Goods Carrier, Gagret, through

Kamal Goods Carrier. It was also found that in the

name of Dutta Medical Agency, other transports 122024:HHC:10240

have also received consignment/parcels.

8.16. It was also found that Varinder Kumar was

earlier running Chemist shop, under the name and

style of 'Siddhi Vinayak', and now, he is running

the same, under the name and style of 'M.B.

Pharma'. In this regard, delivery register and

challan forms were also obtained. On the perusal of

the same, it was found that through these

transports, consignment/parcels, worth crores of

rupees, were found, in the name of Sidhi Vinayak,

M.B. Medicine and Dutta Medical Agency.

8.17 The contraband, so recovered, was sent to

SFSL, Junga. Weight of the parcel was found to be

15.681 kg. The said drug was found to be sample of

Tramadol capsules. In addition to this, the weight

of the parcles, which has been marked as mark-B,

containing Clovedol 100 SR, was found to be 8.450

kg. Manufacturer of the same was found to be the

Akums Drugs and Pharmaceuticals IIE SIDKUL 132024:HHC:10240

Haridwar. Consequently, company officials of Pure

& Cure Healthcare Pvt. Ltd., Plot No. 26A, 27-30

Sector 8A, IIE SIDKUL, Haridwar were associated

in the investigation. On inquiry, it was found that

their company is the subsidiary of Akums Drugs &

Pharmaceuticals Ltd. Company. The factory of

batch No. P06CA09 was not found to have

manufactured Proxywel Spas medicine.

8.18 As per the further stand of the Police, from

the recovered strips, eight digit number was found

to be marked, which was 20130552. As per officials

of the company, number 20130552 was the unique

number of their company, being packing material

Artwork Code number. The company used to get

printed lay out from UTS Foils and Packaging and

Perfect Print Pack. Similarly, police has also got

haul of Clovedol tablets. However, batch number

was found to be erased. The other 8 digit number

20161349 was found to be printed on it. About this 142024:HHC:10240

number, the company officials disclosed that this

number is packing material Artwork Code number.

The company used to get the said design Artwork

from Shree Ji Enterprises.

8.19 During investigation, the I.O. also found

that the applicant has smuggled the psychotropic

substance from Jan Priya Pharma through Kamal

Goods Transport. These parcels were not sent by

Jan Priya Pharma, Delhi, nor any invoice was

found in their shop.

8.20 During investigation, it was found that on

14.9.2022, when the Police recovered the

substance from vehicle No. HP 36B-8124, Varinder

Kumar has forwarded GR No. 59051, dated

12.9.2023 and GR No. A 59198, dated 14.9.2023 to

Mahasu Ram, on his phone, through whatsapp.

Varinder Kumar @ Bindu directed Mahasu Ram to

receive parcel bearing GR No. 59051, dated

12.9.2023, and GR No. 59198, dated 14.9.2023. In 152024:HHC:10240

the mobile handset, which was taken into

possession from Mahasu Ram, photos of aforesaid

GR Nos were found, whereas, in the mobile phone,

of the applicant, photographs of aforesaid GR Nos.

were not found. Both these handsets and GR Nos.

have been sent to RFSL, Dharamshala, for

analysis.

8.21 During investigation, it was found that the

handset on which, Varinder Kumar on 14.9.2023,

had forwarded the photographs of aforesaid GR

Nos. were having two sim cards, bearing No.

9816042336 and 8278733069. The IMEI number of

these two slots were found to be 864372062985240

and 864372062985250, whereas, Varinder Kumar

on 15.9.2023, produced the phone mark Oppo,

bearing IMEI No. 866114046756195 and

866114046756187.

8.22 According to the police, variation in these

numbers was due to the fact that Varinder Kumar 162024:HHC:10240

used to conceal mobile handset, used for

transporting of drugs through Mahasu Ram and

produce some other mobile phones to the Police. It

was also found during investigation that mobile

handset, with the help of which, Varinder Kumar

has forwarded the whatsapp messages to Mahasu

Ram, in that mobile handset, w.e.f. 15.9.2023 to

6.10.2023, mobile phone numbers 8627872324

and 7807786506 were found to be operating,

whereas, according to customer application form,

aforesaid mobile numbers were issued in the name

of one Abhishek, s/o Ambika Prasad. Mobile

Number 7807786506 was found in the name of

Nisha Devi wife of Tilak Raj.

8.23 On 15.10.2023, search warrant of house

and shop of Varinder Kumar was obtained. During

search, some objectionable documents were found

and Indian currency of Rs. 4,42,700/- and foreign

currency of Rs. 1,40,000/- was found. On inquiry, 172024:HHC:10240

Meenakshi Sharma could not give satisfactory

reply. However, she has produced empty box of

Oppo, on which EMEI 864372062985252 and

864372062985245 were found to be printed. It has

also been found that Varinder Kumar, in the name

of Dutta Medical Agency had transported the

consignment worth rores of Rupees from Jan

Priya Pharma, between 2020 to 2023. These facts

have been highlighted just to show that these are

forged documents.

8.24 As per the status report, the role attributed

to the present case is that the accused in this case

were working as interstate drug smuggler. They

have adopted the mode to smuggle the contraband

substance through Kamal Goods Carrier. Accused

Bhupinder Dutta, in this case, was arrested on

15.9.2024 and according to the Police, on

16.9.2023, Gagret Police has taken into possession

the consignment, containing 25,000 tablets of 182024:HHC:10240

Tramadol Hydrochloride tablets 100 mg Clovedol

100 SR. Alongwith said parcel, copy of GR No.

A59198, dated 14.9.2023 and invoice of Jan Priya

Pharma is dated 13.9.2024. The said builty and

invoice was in the name of 'Dutta Medical Agency

Gagret.'

8.25 On 20.9.2023, in the presence of applicant

Bhupinder Dutta and witness, the shop which was

under the name and style of 'Dutta Medical Agency,

Gagret' was searched by Drug Inspector Rajat

Sharma. During search of the premises of 'Dutta

Medical Agency', one builty GR No. 58021, dated

23.8.2023, issued by Kamal Goods Carrier and one

invoice of Jan Priya Pharma, bearing No. 00325,

dated 23.3.2023, were recovered.

8.26. As per further case of the Police, medicines,

as shown in the invoice, issued by Jan Priya

Pharma, were not found in the medical store. The

said GR and invoice is the same copy of 192024:HHC:10240

GR/invoice, through which, drugs were transported

on 14.9.2023 and 16.9.2023 and were recovered

from the spot.

8.27. It is also the case of the police that Kamal

Goods Carrier, Gagret, from the year 2019 to 2023,

transported 82 consignments in the name of Dutta

Medical Agency, forwarded by different firms and

out of said 82 consignments, 42 consignments were

sent by Jan Priya Pharma 27/16, Chhoti Sabzi

Mandi, Janakpuri, New Delhi.

8.28 Lastly, it has been apprehended that in

case, the applicant is released on bail, he may

affect the investigation of the case and also allure

the witnesses and may also leave the country. In

case, he is ordered to be released on bail, it will give

a wrong signal to the society and he may again

indulge in the similar activities.

9. On the basis of above facts, a prayer has

been made to dismiss the application.

202024:HHC:10240

10. Investigation, in the present case, is

complete and Police has filed the Challan in the

competent Court of law. The prayer of bail has

been opposed, mainly on the ground that in case

the applicant is released on bail, he may co-erced

and allure the witnesses. Apart from this, it has

also been apprehended that the applicant may

leave the country, in case released on bail.

11. As per report of the Police, the contraband,

so recovered, was sent for chemical analysis to

SFSL, Junga by putting the same into parcels.

Parcel Mark-A was found containing Proxywell

Spas, and total weight of the same was found to be

15.651 kg, and as per the report of the Laboratory,

the same was found to be the sample of Tramadol,

whereas parcel Mark-B was containing tablets

known as Clovedol 100 SR, and the total weight of

the same was found to be 8.450 kg. As per the

report of the laboratory, the same was also found to 212024:HHC:10240

be the sample of tramadol.

12. In view of the notification issued by the

Ministry of Finance (Department of Revenue), dated

26.4.2018, the Tramadol has been entered at serial

No. 110 Y, in the list of psychotropic substances,

which are specified in the schedule to the NDPS

Act. The small quantity is stated to be 5 grams and

commercial quantity is stated to be 250 grams.

Meaning thereby, the contraband, which was

allegedly recovered, in the present case, falls within

the definition of 'commercial quantity'.

13. Once, it has been held that the contraband,

so recovered, falls within the definition of

'commercial quantity', then, rigors of Section 37 of

the NDPS Act are applicable, in the present case.

14. The Police has registered the case under

Sections 20 and 29 of the NDPS Act, as such, there

is no substance in the argument of learned senior

Counsel, representing the applicant that nothing 222024:HHC:10240

has been recovered from his possession. The

provisions of Section 29 of the NDPS Act, are

reproduced as under:

Section 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.

(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.

15. The Hon'ble Apex Court in a recent deci-

sion, in case titled as Narcotics Control Bureau

versus Mohit Aggarwal, reported in AIR 2022 SC 232024:HHC:10240

3444, has reiterated the earlier view regarding com-

pliance of the conditions, as enumerated in Section

37 of the NDPS Act. The relevant paras 10 to 15 of

the judgment are reproduced, as under:

"10. The provisions of Section 37 of the NDPS Act read

as follows:

"[37. Offences to be cognizable and nonbailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cog-

nizable;

(b) no person accused of an offence punishable for [of- fences 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 applica- tion, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such of- fence 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 limi- tations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

242024:HHC:10240

11. It is evident from a plain reading of the nonobstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having com- mitted an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the re- strictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions im- posed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to com- mit any offence while on bail.

12. The expression "reasonable grounds" has come up

for discussion in several rulings of this Court. In "Col-

lector of Customs, New Delhi v. Ahmadalieva Nodira",

(2004) 3 SCC 549, a decision rendered by a Three

Judges Bench of this Court, it has been held thus:

"7. The limitations on granting of bail come in only when the question of granting bail arises on mer- its. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused 252024:HHC:10240

respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for be- lieving that the accused is not guilty of the alleged offence and that he is not likely to commit any of- fence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates sub- stantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the pro- vision requires existence of such facts and cir- cumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."

[emphasis added]

13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" (2020) 12 SCC 122 and this Court has observed as below:

"20. The expression "reasonable grounds" means something more than prima facie grounds. It con- templates substantial probable causes for believ- ing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in them- selves to justify satisfaction that the accused 262024:HHC:10240

is not guilty of the alleged offence. In the case on hand, the High Court seems to have com- pletely overlooked the underlying object of Section 37 that in addition to the limitations provided un- der the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal ap- proach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]

14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For ar- riving at any such conclusion, such facts and cir- cumstances must exist in a case that can per- suade the Court to believe that the accused per- son would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an application for bail in the context of the Sec- tion 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for 272024:HHC:10240

the limited purpose of releasing him on bail. Thus, the focus is on the availability of reason- able grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence un- der the Act while on bail."

16. At this stage, on the basis of record,

submitted by the prosecution, it cannot be stated

that the applicant has not committed the offence,

nor it can be held that he is not likely to commit

the offence, while on bail. The contraband was

transported in the name of Dutta Medicose and in

view of specific allegations against the applicant,

no relief can be granted to him at this stage.

17. So far as the arguments of learned senior

counsel appearing for the applicant, qua the fact

that agency, i.e. Dutta Medicose is closed and

applicant is not doing such business, is