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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Karnail Singh - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr.M.P(M) No. 1592 of 2017
Decided On : 12-01-2018
Narcotic Drugs - Bail Petition - Narcotic Drugs & Psychotropic Substances Act, Drugs and Cosmetics Act - Section 22 of NDPS Act, Section 18C of Drugs and Cosmetics Act - Rule 52A of Narcotic Drugs & Psychotropic Substances Rules, Rule 65A of the Narcotic Drugs & Psychotropic Substances Rules - The court discussed the bail petition filed under Section 439 Cr.P.C by the bail petitioner, who was in custody under FIR No. 262/17 dated 24.8.2017, under Section 22 of the Narcotic Drugs & Psychotropic Substances Act and Section 18C of Drugs and Cosmetics Act. The court analyzed the FSL report, the contentions of the Additional Advocate General, and the arguments of the bail petitioner's counsel. The court emphasized the validity of the bail petitioner's license to possess the drugs allegedly recovered from his shop and car, as confirmed by the Drug Inspector's communication dated 13.11.2017. The court also referred to Rule 52A and Rule 65A of the Narcotic Drugs & Psychotropic Substances Rules to support the bail petitioner's possession of essential narcotic drugs and the restrictions on the sale, purchase, consumption, or use of psychotropic substances. The court concluded that the bail petitioner was entitled to bail, considering the absence of evidence suggesting a risk of fleeing from justice and the paramount consideration of freedom. The court highlighted that the object of bail is to secure the accused's presence at trial and emphasized the need to balance competing factors while exercising discretion in granting bail.
Fact of the Case:
The bail petitioner filed a bail petition under Section 439 Cr.P.C, seeking bail in FIR No. 262/17 dated 24.8.2017, under Section 22 of the Narcotic Drugs & Psychotropic Substances Act and Section 18C of Drugs and Cosmetics Act. The case involved the recovery of narcotic drugs from the bail petitioner's shop and car, leading to his arrest. The Additional Advocate General argued against granting bail, citing the gravity of the offense and the petitioner's inability to produce a license for storing the drugs. The bail petitioner's counsel refuted these contentions, emphasizing the bail petitioner's possession of a valid license, as confirmed by the Drug Inspector's communication dated 13.11.2017.
Finding of the Court:
The court found that the bail petitioner was in possession of a valid license to store the drugs recovered from his shop and car, as confirmed by the communication from the Drug Inspector. The court concluded that there was no reason to curtail the bail petitioner's freedom, considering the absence of evidence suggesting a risk of fleeing from justice and the paramount consideration of freedom. The court emphasized that the object of bail is to secure the accused's presence at trial and highlighted the need to balance competing factors while exercising discretion in granting bail.
Issues: The issues involved in the case included the validity of the bail petitioner's license to possess the drugs recovered from his shop and car, the gravity of the offense, the risk of fleeing from justice, and the paramount consideration of freedom.
Ratio Decidendi: The court's decision was based on the bail petitioner's possession of a valid license to store the drugs recovered from his shop and car, as confirmed by the communication from the Drug Inspector. The court emphasized the need to balance competing factors while exercising discretion in granting bail, considering the absence of evidence suggesting a risk of fleeing from justice and the paramount consideration of freedom.
Final Decision: The court allowed the bail petition and ordered the bail petitioner to be enlarged on bail in the aforementioned FIR, subject to the conditions of furnishing personal bonds, making himself available for interrogation and trial, not tampering with evidence, not influencing witnesses, and not leaving the territory of India without prior permission. The court clarified that any misuse of liberty or violation of the imposed conditions would result in the investigating agency being free to move for the cancellation of bail.
Sandeep Sharma, J.
1. Instant bail petition filed under Section 439 Cr.P.C has been preferred by the bail petitioner namely Karnail Singh, who is in custody since 25.8.2017, praying therein for grant of bail in FIR No. 262/17 dated 24.8.2017, under Section 22 of the Narcotic Drugs & Psychotropic Substances Act and Section 18C of Drugs and Cosmetics Act registered at Police Station Una, District Una, Himachal Pradesh.
2. Sequel to order dated 1.1.2018, HC Brij Bhushan has come present with the record. Mr. M.L. Chauhan, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned.
3. Perusal of record suggests that FIR as detailed herein above came to be lodged at the behest of complainant namely HC Brij Bhushan No. 94, who alleged that on 24.8.2017, he received a secret information that bail petitioner is involved in illegal trade of narcotic drugs, as defined under Narcotic Drugs & Psychotropic Substances Act. On receipt of secret information, the raiding party also associated Drug Inspector namely Anup Sharma. The raiding party along with Drug Inspector reached the shop of accused and effected search, as a result of which, 597 bottles of 100 ml cough syrup namely Altorex and Onerex came to be recovered from medical shop owned and possessed by the bail petitioner. Apart from above, police also recovered tablets namely Lomotil (1470), Trimtol (4400), Jagdol X, Tranzex Plus, Parvon Spas Plus (15900), Alprawin 0.5 (43120) and Alprawin 0.25 (38400). During the course of search, vehicle No. HP-80-5100 (Maruti Swift Dzire) owned by the bail petitioner was also searched wherein 49 bottles of Onerex cough syrup were recovered. Since bail petitioner was unable to produce licence, if any, possessed by him for storing aforesaid drugs allegedly recovered from his car and medical store, police seized the contraband and registered a case against the bail petitioner. FSL report available on record suggests that drug namely Altorex, Onerex, Lomotil, Alprawin 0.5 and Alprawin 0.25 contained prohibited drugs namely Codeine Phosphate, Diphenoxylate Hydrochloride and Alprazolam, respectively, whereas, other drugs were not found to be Narcotic Drugs & Psychotropic Substances as mentioned in Schedule of notification of Narcotic Drugs & Psychotropic Substances Act, 1985. As per FSL report, 1.96 and 1.98 mg Codeine Phosphate was found present in one bottle of 100 ml cough syrups namely Altorex and Onerex, respectively. 2.47 mg Diphenoxylate Hydrochloride and 0.0254 mg Atropine Sulphate in 3 strips of tablets namely Lomotil was found. Similarly, FSL reported that in 8 strips of tablets namely Alprawin 0.5, prohibited drug namely Alprazolam 0.458 mg was found, whereas in drug namely Alprawin 0.25, FSL found 0.237 mg Alprazolam in 8 strips i.e. 80 tablets, which were sent to the FSL.
4. Mr. M.L. Chauhan, learned Additional Advocate General, while referring to the FSL report vehemently argued that quantity of prohibited drug as prescribed under Narcotic Drugs & Psychotropic Substances Act, if is taken into consideration strictly as per report submitted by FSL, same is definitely a commercial quantity, as such, petitioner is not entitled for bail. Learned Additional Advocate General, while referring to the record/status report strenuously argued that keeping in view the gravity of offence allegedly committed by bail petitioner, he does not deserve any leniency rather he needs to be dealt with severely. Mr. Chauhan, further contended that it is not in dispute that petitioner was unable to produce licence, if any, possessed by him at the time of search for keeping huge bulk of prohibited drugs allegedly recovered from his shop and car, as such he was rightly arrested. Lastly, Mr. Chauhan, further contended that in case bail p
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