Point of Law: Court is to balance between rights of an individual with rights of society as a whole.

JUDGMENT :

(Satyen Vaidya, J.)

1. Both these petitions are being decided together as these arise out of the same FIR and involve common questions of facts and law.

2. Petitioners are accused in Case FIR No.50 of 2023, dated 25.02.2023 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short “NDPS Act”), registered at Police Station Sadar Shimla, H.P.

3. Petitioners herein are husband and wife in relation. On 25.02.2023, on the basis of a secret information they were intercepted by the police party near ISBT, Shimla. Petitioner Aakash was riding motorcycle No. PB-39G-4081 and petitioner Shivani was on the pillion. The motorcycle of the petitioners was search and 7.84 grams of heroin/chitta was found wrapped in a polythene packet and placed between the visor glass and speedometer of the motorcycle. The case was registered and petitioners were arrested.

4. Petitioners have prayed for grant of bail on the ground that a little more than small quantity of heroin/chitta has allegedly been recovered from them, which does not attract the rigors of Section 37 of the NDPS Act. The investigation is already complete and no fruitful purpose shall be served by allowing the petitioners to be kept in custody till indeterminate period. It is further submitted that both the petitioners are of young age and their prolonged incarceration will affect their future.

5. On the other hand, the bail petition has been vehemently opposed. It is submitted that the petitioners have been found to be indulging in the trade of selling heroin/chitta. It is further submitted that the petitioners have also been arrayed as accused in another case registered in the same police station vide FIR No. 52 of 2023, dated 27.02.2023 under Section 21 and 29 of the NDPS Act. As per respondent, the petitioners originally are not residents of State of Himachal Pradesh, however, they have taken a residential accommodation on rent at Ramnagar, Shimla. Still, on the night of 24.02.2023, they had hired a room in a home stay named “Four Season B & B” near Auckland Tunnel, Shimla. They had visited the hotel in a car No. CH-03V-7374. On 25.02.203, they had left the hotel by leaving the keys with the Manager on the pretext that they were going out and would return back. They had instructed the Manager of the hotel that their luggage was lying inside the room and room could be got cleaned in their absence. They had also left their vehicle parked on the road near Four Season B & B. They did not return to home stay till 27.02.2023 and when a police official visited the home stay for routine checking, the Manager had disclosed the factum of petitioners having left the home stay on 25.02.2023 and having not returned since then. The room was checked by the police and from the bag of the petitioners 18 grams of heroin/chitta was recovered besides a large number of small polythene pouches.

6. I have heard learned counsel for the parties and have also gone through the entire record carefully.

7. No doubt the contraband recovered from the petitioners in FIR No.50/2023 registered at Police Station Sadar, Shimla, constitutes intermediate quantity and rigors of Section 37 of the NDPS Act will not be applicable, yet this by itself will not entitle the petitioners for grant of bail. The entirety of facts and circumstances has to be assessed.

8. The manner in which petitioners have been found to be operating is suspicious. In FIR No. 50 of 2023 contraband has been recovered from the conscious possession of the petitioners in the presence of independent witnesses. The police already had some secret information regarding the activities of the petitioners. In FIR No. 52 of 2023, the contraband recovered from the room of home stay/hotel Four Season B & B near Auckland Tunnel, Shimla, is also found connected to the petitioners. Petitioners have rented accommodation in one of the localities of Shimla. There is no explanation that when the petitioners had a rented accommodation in Shimla, w