Back
2020 Supreme(HP) 240
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ANOOP CHITKARA, J.
Dinesh Kumar @ Billa – Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. M.P. (M) No. 924 of 2020
Decided On : 06-07-2020
Advocate Appeared:
For the Petitioner: Mr. Sanjay Dutt Vasudeva.
For the Respondents: Mr. Nand Lal Thakur, Mr. Ram Lal Thakur.
Headnote:
BAIL - NDPS Act - 22, 37 - The court discussed the rigors of Section 37 of the NDPS Act and granted bail to the petitioner, subject to stringent conditions. The court analyzed various judicial precedents and legal principles related to the grant of bail under the NDPS Act, emphasizing the need for reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
Fact of the Case:
The petitioner sought bail after being arrested for selling capsules to the main accused under the NDPS Act. The main accused had been arrested for possessing the capsules, and the petitioner was implicated based on a phone call and the main accused's confession.
Finding of the Court:
The court found that the petitioner had made out a case for bail based on the lack of direct evidence against him and the delay in his arrest. The court also imposed stringent conditions to ensure the petitioner's compliance with the bail terms.
Issues: The main issue was whether the petitioner should be granted bail under the NDPS Act, considering the rigors of Section 37 and the evidence against him.
Ratio Decidendi: The court's decision was based on the interpretation of Section 37 of the NDPS Act and the application of various judicial precedents, emphasizing the need for reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
Final Decision: The court granted bail to the petitioner, subject to stringent conditions, based on the lack of direct evidence against him and the delay in his arrest, while emphasizing the need for compliance with the bail terms.
JUDGMENT :
ANOOP CHITKARA, J.
1. The petitioner, who is under arrest from 22nd May 2020, for selling 209 capsules to the main accused Rakesh Kumar, from whose possession the Police had recovered the same on 17th Mar 2020, has come up before this Court seeking bail.
2. Based on a First Information Report (FIR), the police arrested the petitioner, in FIR No. 52 of 2020, dated 17.3.2020, registered under Sections 22 and 29-61-85 of the NDPS Act, in Police Station Dharamshala, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offenses.
3. Earlier, the petitioner filed a petition under Section 439 Cr.P.C. before Special Judge-II, Kangra at Dharamshala, HP. However, vide order dated 16.6.2020, the Court dismissed the petition, because in the opinion of the Court, the Petitioner could not cross the rigors of S. 37 of NDPS Act.
4. Mr. Nand Lal Thakur learned Additional Advocate General had filed the status report through e-mail, printout of which is available on file. He further submits that he had sent a copy of the status report to learned counsel for the petitioner on WhatsApp number.
5. I have read the status reports and heard Mr. Sanjay Dutt Vasudeva, Advocate for the petitioner, Mr. Nand Lal Thakur, Ld. Additional Advocate General for the State of H.P.
FACTS:
6. The gist of the facts apposite to decide this petition would suffice that the Police had arrested the main accused Rakesh Rana for possessing 94 capsules of WE WECARE and 115 capsules of SPM PRX WOCKHARDY and in all 209 capsules, which weighed 125.72 grams. After arrest of the main accused on 17.3.2020, in his interrogation, he revealed to the police that he is a drug dependent and he has purchased the capsules from one Dinesh Kumar, the petitioner herein. Due to the spread of Covid-19 disease, the police did not arrest the accused Dinesh Kumar and arrested him only on 22nd May, 2020.
PREVIOUS CRIMINAL HISTORY:
7. As per the police report the accused Dinesh Kumar involved himself in the following cases:
1. FIR No. 150/16, dated 20.11.2016 under section 20-61-85 of NDPS Act, in Police Station, Shahpur.
2. FIR No. 60/17, dated 2.4.2017, under section 21-61-85 of NDPS Act and 18 C of the Drugs and Cosmetic Act, Police Station, Shahpur.
3. Fir No. 158/16, dated 5.6.2016 under Section 341, 323, 506, read with Section 34 IPC, Police Station Shahpur.
8. According to learned Counsel for the petitioner, these offences mentioned in these FIRs are not that serious, to deny him all future bails, in similar offences. He further submits that conditions may be put that in case the petitioner repeats the offence, this bail may be canceled.
SUBMISSIONS:
9. The learned counsel for the bail petitioner submits that the allegations are false and concocted.
10. On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contends that the investigating officer has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
11. Mr. Sanjay Vasudeva very vehemently argued and also drew attention to the orders of this Court in Budhi Singh vs. State of H.P. Cr. MPM No. 595 of 2020, Manohar Lal vs. State of H.P. Cr. MPM No. 126 of 2018, Thakur Dass vs. State of H.P. Cr. MPM No. 167 of 2010, Stynder Singh vs. State of Himachal Pradesh, 2010 (1) Sim LC 490 and Nisar Ahmed Thakkar vs. State of H.P. Cr. MPM No. 672 of 2008.
ANALYSIS AND REASONING:
12. Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victims and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society and State.
13. In Gurbaksh Singh Sibbia and Others vs. State of Punjab, 1980 (2) SCC 565, a Constitutional bench of Su
