Point of law: The word “custody” appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the chargesheet.

ORDER :

Petitioner has approached this Court for grant of pre-arrest bail under Section 438 Cr.P.C. in complaint case No. 4 of 2021, under Sections 18-A and 18-C of the Drugs and Cosmetics Act, pending before learned Additional Chief Judicial Magistrate, Paonta Sahib, District Sirmaur, H.P.

2. The case of the petitioner is that FIR No. 89 of 2018, was registered at Police Station, Paonta Sahib on 05.07.2018 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘ND&PS Act’). Petitioner was arrayed as accused in the said FIR and was arrested on 05.07.2018. Petitioner was enlarged on bail by learned Special Judge-II, Sirmaur District at Nahan vide order dated 06.09.2018 in bail application No. 143 of 2018.

3. As per petitioner, both the cases i.e. FIR No. 89/2018 and complaint case No.4/2021 have arisen out of the same incident. It is alleged against petitioner that he was found in possession of huge quantity of medicines for sale without any licence. The said illegal activity of petitioner culminated in initiation of proceedings under the ND&PS Act as well as Drugs and Cosmetics Act.

4. Petitioner is apprehending his arrest in complaint case No. 4/2021. The learned Additional Chief Judicial Magistrate, Paonta Sahib is stated to have issued process against the petitioner after taking cognizance in the complaint. Petitioner has contended that his implication is totally false and he was not involved in any offence. Petitioner has already co-operated with the Investigating Agency as well as the Drug Inspector. He is permanent resident of village Mehmoodpur, P.O. Raipur, Tehsil Behat, District Saharanpur, U.P. presently residing in Village Kolar, Tehsil Paonta Sahib, District Sirmaur, H.P. and there is no likelihood of his absconding or fleeing from the course of justice.

5. In response, the respondent has filed status report. It is stated that the petitioner had already appeared before the Drug Inspector and joined the investigation. No apprehension of his obstructing the course of justice has been expressed. On 8.3.2022, this Court ordered the production of entire record of investigation alongwith presence of the Drug Inspector. On 25.03.2022, the Drug Inspector remained present with the record. It transpired from the record that there was no allegation of the medicines being allegedly sold by the petitioner to be spurious or adulterated.

6. I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and also have gone through the records.

7. In Bharat Chaudhary and another vs. State of Bihar and another (2003) 8 SCC 77, the Hon’ble Supreme Court has held as under:

“7. From the perusal of this part of Section 438 of the Crl.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Crl. P.C. even when cognizance is taken or charge sheet is f