Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 835

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Ajay Kumar - Petitioner
Versus
State of H.P. - Respondent
Cr.MP.(M) No. 2298 of 2022
Decided On : 26-12-2022

Advocates:
Advocate Appeared:
For the Petitioner:Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate.
For the Respondent:Mr. Narender Thakur, Deputy Advocate General.

Point of Law: Pre-trial incarceration is not rule and prayer for grant of bail is to be decided keeping in view facts and circumstances of each specific case.

Headnote:
Narcotic Drugs and Psychotropic Substances, Act, 1985 - Section 21, 61, 85 - Grant of Bail - Victim of Drug Abuse - Prayer has been made to release petitioner on bail – Petitioner himself is a victim of drug abuse, as quantity recovered cannot be reasonably said to be possessed for commerce or trade - Para 6.
Finding of the Court:
Quantity with which petitioner has been apprehended by police every time, suggests that petitioner himself is a victim of drug abuse, as quantity recovered cannot be reasonably said to be possessed for commerce or trade - Petitioner requires rehabilitation, medical care as also care by family members does not appear to be without substance - Fact that brother of petitioner has come-forth to offer all help to petitioner also strengthens contention so raised on behalf of petitioner - Petitioner has already been in custody in present case almost for about five months - His further incarceration may not be in interest of justice, as no fruitful purpose is likely to be served, rather it may prove to be an impediment in rehabilitation of petitioner and his cure from disease in which he had been enroped - Keeping in view balance between rights of petitioner and gravity of crime petitioner is ordered to be released on bail.
Result: Petition allowed.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, a prayer has been made to release the petitioner on bail in case registered vide FIR No. 125 of 2022, dated 3.8.2022, at Police Station, Damtal, District Kangra, H.P. under Section 21 of the Narcotic Drugs and Psychotropic Substances, Act (for short, “ND&PS” Act).

2. Petitioner is in custody since 02.08.2022. It is alleged that 6.05 grams of heroin (Chitta) was recovered from his conscious possession.

3. From the status report filed on behalf of the respondent, it is revealed that after completion of investigation, challan has been presented against the petitioner on 26.9.2022. Petitioner is stated to be involved in four other cases under the ND&PS Act. The details of all such cases have been provided as under:

“(i) Case FIR No.148/2018, dated 10.6.2018, under Section 21-61-85 of ND&PS Act, P.S. Indora. Recovery 3.66 gm. Heroin/chitta.

(ii) Case FIR No. 167/2019, dated 10.12.2019, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 6.32 gm. Heroin/chitta.

(iii) Case FIR No. 67/2020, dated 27.7.2020, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 6.70 gm. Heroin/chitta.

(iv) Case FIR No. 51/2022, dated 22.3.2022, under Section 21-61-85 of ND&PS Act, P.S. Damtal. Recovery 4.08 gm. Heroin/chitta.”

The plea of the petitioner has been contested on the ground that he is a habitual offender and in case released on bail, will again indulge in similar activities.

4. On the other hand, it has been contended on behalf of the petitioner that he is of young age and has been a victim of drug abuse. It has been submitted that the petitioner was undergoing rehabilitation process, but his relapse landed him in the present case. Today, Sh.Yashwinder Pal S/o Sh. Rajinder Pal, is also present in the court, who was identified by the counsel for the petitioner. Sh. Yashwinder Pal, disclosed that the petitioner was his real brother and was addicted to I.V. Drug Abuse. He further submitted that he is ready and willing to take care of his brother by providing all means for rehabilitation and medical treatment. It is further disclosed that petitioner is married and has two children, who are totally dependent upon him.

5. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

6. Noticeably, in all the previous cases, as detailed above, the quantity of heroin recovered from the petitioner is either small quantity or marginally more than small quantity. Same is the nature of instant case. As per the notification issued by the Central Government specifying the small and commercial quantity, the heroin is mentioned at serial No. 56 of the Table. Upto 5 grams of heroin, is small quantity and from 5 grams to 250 grams, is intermediate quantity. The quantity with which the petitioner has been apprehended by the police every time, suggests that the petitioner himself is a victim of drug abuse, as the quantity recovered cannot be reasonably said to be possessed for commerce or trade.

7. Undoubtedly, the possession of intermediate quantity of heroin, attracts severe punishment as it is considered to be a heinous offence, nonetheless, its social implication cannot be undermined especially keeping in view the age group in which the petitioner is. The contention raised by learned counsel for the petitioner that petitioner requires rehabilitation, medical care as also the care by the family members does not appear to be without substance. The fact that the brother of petitioner has come-forth to offer all help to petitioner also strengthens the contention so raised on behalf of the petitioner.

8. Petitioner has already been in custody in the present case almost for about five months. His further incarceration may not be in the interest of justice, as no fruitful purpose is likely to be served, rather it may prove to be an impediment in rehabilitation of the petitioner and his cure from the disease in which he had been enroped. Pre-trial incarceration is n

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