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2019 Supreme(HP) 828
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
Sunil Kumar — Appellant
Versus
State Of Himachal Pradesh — Respondent
Criminal Miscellaneous Petition (Main) No. 1477 of 2019
Decided on : 21-08-2019
Advocate Appeared:
Rajiv Rai, Adv., Shiv Pal Manhans, Adv., P.K. Bhatti, Adv., Raju Ram Rahi, Adv.
The main legal point established in the judgment is the consideration of the petitioner's medical treatment for drug addiction, cooperation in the investigation, and overall material circumstances in granting bail under Section 438 of the Code of Criminal Procedure for a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act.
Headnote:
Bail Application - Narcotic Drugs and Psychotropic Substances Act - Section 21 - Summary: The court granted bail to the petitioner under Section 438 of the Code of Criminal Procedure for a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. The court considered the quantity of contraband, the petitioner's medical treatment for drug addiction, his cooperation in the investigation, and his overall material circumstances in granting bail.
Fact of the Case:
The petitioner sought bail under Section 438 of the Code of Criminal Procedure for a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. The prosecution alleged that the petitioner was found with heroin and had a history of drug-related offenses.
Finding of the Court:
The court found that considering the recovered quantity of contraband, the petitioner's medical treatment for drug addiction, his cooperation in the investigation, and his overall material circumstances, it was a fit case to grant bail.
Issues: The main issue was whether the petitioner should be granted bail in a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act.
Ratio Decidendi: The court's decision to grant bail was based on the petitioner's medical treatment for drug addiction, his cooperation in the investigation, and the overall material circumstances, including the recovered quantity of contraband.
Final Decision: The court granted bail to the petitioner on the condition of furnishing a personal bond and surety, and imposed specific conditions related to joining the investigation, not leaving India without permission, and refraining from influencing witnesses.
Certainly. Based on the provided legal document, here are the key points summarized with the appropriate references:
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The court granted bail to the petitioner under Section 438 of the Criminal Procedure Code in a case registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, considering factors such as the quantity of contraband, the petitioner’s medical treatment for drug addiction, his cooperation in the investigation, and his overall material circumstances (!) (!) .
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The police recovered a small quantity (5 grams) of heroin from the petitioner, who was found attempting to flee upon noticing the police. The contraband was sent for forensic analysis, and the petitioner disclosed prior drug transactions and intentions to supply heroin (!) (!) .
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The petitioner is alleged to have a history of involvement in drug-related offenses and other cases, raising concerns that he might tamper with evidence or flee if released on bail. However, the court considered his residence, ongoing medical treatment, lack of immediate risk of tampering, and cooperation in the investigation as mitigating factors (!) (!) .
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The court emphasized that the bail was granted with specific conditions, including personal bond and surety, joining the investigation when called, not leaving the country without permission, and refraining from influencing witnesses (!) (!) .
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The decision reflects a discretionary exercise of judicial authority, balancing the petitioner’s individual circumstances against the nature of the offense and potential risks, leading to the conclusion that bail was appropriate under the circumstances presented (!) (!) .
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JUDGMENT :
Chander Bhusan Barowalia, J.
The present bail application has been moved by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of his arrest, in case FIR No. 122 of 2019, dated 14.07.2019, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, registered in Police Station Joginder Nagar, District Mandi, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.
3. Police report stands filed. As per the prosecution story, on 13.07.2019 Constable Diwan Chand brought a rukka to Police Station, Joginder Nagar. As per the said rukka, on 13.07.2019 a police team laid a nakka at place known as Kash Haar Link, Bhararu Rain Shelter. At about 11:36 p.m., police spotted a person coming from the side of Kash. Police focused search light on the said person and police personnel identified him. The petitioner, on seeing the police party got perplexed and tried to flee. While fleeing, the petitioner threw a packet from his pocket. Ultimately, taking advantage of bushes, the petitioner succeeded in absconding. The police team extensively searched him, but he could not be traced. As the petitioner was earlier also found involved in drug sale and purchase, so the police had suspicion on the petitioner. Despite best efforts, police could not associate any independent witnesses. The packet thrown by the petitioner was checked and it was found containing some powder like substance, which was white and black in color and the said packet also contained brownish solid substance. The said substance was heroin (chitta) and on weighment it was found to be 5 grams. Thereafter, the police completed all the codal formalities and on the basis of the rukka FIR was registered. Police prepared the spot map and also recorded the statements of the witnesses under Section 161 Cr.P.C. The recovered contraband was sent to SFSL, Junga, for forensic analysis and the report is awaited. The petitioner moved the present application seeking his pre arrest bail and on the Directions of Hon'ble High Court, he joined the investigation. The petitioner, during the course of interrogation, divulged that 5-6 months back he purchased 15 grams heroin from auto driver, of which he had already sold 10 grams. He has further disclosed that he used to sell 1 (one) gram heroin for Rs.2500/3000. On 13.07.2019 he received a telephonic call from one Topnu from Baijnath, who wanted to purchase 5 grams heroin, so he was coming to deliver the contraband to him. As per the police, the petitioner is habitual offender and many cases have been registered against him. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner is very clever person and he has committed a serious offence. The police found the involvement of the petitioner in many other cases also, so in case the petitioner, if enlarged on bail at this stage, he may tamper with the prosecution evidence and may also flee from justice. It is prayed that the bail application of the petitioner may be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the petitioner is innocent. He is resident of the place and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that petitioner is joining and co-operating in the investigation, so he may be released on bail. Conversely, learned Additional Advocate General, has argued that the petitioner was found involved in a serious offence and in case at this stage he is enlarged on bail, he
