The main legal point established in the judgment is that the court may consider the age and conduct of the accused when deciding on bail applications, even in cases where statutory bars exist.

JUDGMENT :

Vivek Singh Thakur, J

Present petition has been filed on behalf of the petitioner, seeking his enlargement on bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in Complaint Case No.2 of 2021, titled as Drug Inspector, through State of H.P. vs. Mohd. Asad, under Sections 18(c) and 18A of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as ‘the Act’) punishable under Sections 27(b)(ii) and 28 of the Act.

2. Reply has been filed on behalf of the respondent- State through Drug Inspector complainant. Record has also been produced.

3. It has emerged from the record that on 24.09.2018, business premises/shop of petitioner was raided by Drug Inspector alongwith police and independent witnesses wherein petitioner was found doing business of stocking and exhibiting for sale huge quantity of allopathic drugs without licence and he also failed to produce complete sale/purchase records and other particulars related to the said allopathic drugs and also to disclose name and address and other particulars of those from whom he had acquired the said allopathic drugs and, thus, petitioner was found to have committed an offence under Sections 18(c) and 18A of the Act and Rules made thereunder.

4. Drugs Inspector had completed investigation after performing all codal formalities and following prescribed procedure and filed complaint before the Magistrate on 31.10.2020, concluding that petitioner had been found to have committed offence under Section 18(c) punishable under Section 28(b)(ii) of the Act and also under Section 18A punishable under Section 28 of the Act.

5. Upon receiving complaint, learned Judicial Magistrate 1st Class issued notice to the petitioner for 08.03.2021 and on that day, on appearance of the petitioner before the Magistrate, petitioner was ordered to be arrested and sent to judicial custody on the same day.

6. Petitioner had approached the Court of learned Special Judge-II, Sirmaur at Nahan, under Section 439 Cr.P.C., for enlarging him on bail, but his bail application was rejected by learned Special Judge-II vide order dated 17.03.2021, on the ground that in view of provisions of Section 36AC of the Act, offence committed by the petitioner is cognizable and nonbailable and there is statutory bar created under the law under Section 36AC(1)(b)(i) and (ii) which provides that before considering application for bail filed by the accused in a case for commission of offence enumerated in Section 36AC(1)(b) of the Act, an opportunity to oppose such application has to be given to the Public Prosecutor and where Public Prosecutor opposes the application, Court shall not release the applicant on bail or on his own bond unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

7. Learned counsel for the petitioner has submitted that petitioner is 62 years old and he has been made an accused in a case pertaining to year 2018 alleging that on 24.09.2018 he was found involved in the business of stocking and exhibiting sale of allopathic drugs without any licence to do so and thereafter, he was summoned by the Court in March 2021 and during intervening period, there is no instance of commission of the same or similar offence by the petitioner and petitioner, being a law abiding citizen, had followed the direction of the Court and had appeared before the Magistrate in compliance of notice issued to him in present case. Further that petitioner has roots in the society and is ready to furnish local surety bond ensuring his availability during trial and further that rigours of Section 36AC of the Act are not applicable in present case. He has further stated that for the offences alleged to have been committed by the petitioner are not cognizable rather bailable and police is not empowered to take cognizance thereof and Court can take cognizance for commission of these offences on a compl