Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 499

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAKESH KAINTHLA, J.
Dildar Khan @ Sonu Khan – Petitioner
Versus
State of H.P. – Respondent
Cr. MP (M) No. 2776 of 2023
Decided On : 04-12-2023

Advocates:
Advocate Appeared:
For the Petitioner: Ashok Kumar Thakur.
For the Respondent: Prashant Sen.

The judgment established that the power of pre-arrest bail should be exercised sparingly, especially in cases involving serious offences such as possession of narcotic drugs. It also emphasized the significance of being declared a proclaimed offender in determining eligibility for pre-arrest bail.

Headnote:
Pre-arrest Bail - Narcotic Drugs and Psychotropic Substances Act - Section 37 of the NDPS Act - Section 82 of Cr.P.C. - Section 438 Cr.P.C. - Section 8 of the NDPS Act, Sections 21, 27-A, 29, 60(3) - Possession of Narcotic Drugs - Conscious Possession
Fact of the Case:

The petitioner sought pre-arrest bail after being implicated in a case involving the possession of heroin found in a backpack on a bus. The police claimed to have evidence, including CCTV footage, connecting the petitioner to the crime.
Finding of the Court:

The court found that the petitioner's status as a proclaimed offender and the evidence presented, including the CCTV footage, established a prima facie case against the petitioner. The court concluded that the petitioner was not entitled to pre-arrest bail and dismissed the petition.
Issues: The main issue was whether the petitioner should be granted pre-arrest bail despite being declared a proclaimed offender and the evidence connecting him to the possession of heroin.
Ratio Decidendi: The court relied on the provisions of Section 37 of the NDPS Act, Section 82 of Cr.P.C., and Section 438 Cr.P.C. It also considered the concept of possession of narcotic drugs and the principle of conscious possession.
Final Decision: The court held that the petitioner was not entitled to pre-arrest bail and dismissed the petition.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The petitioner has filed the present petition for seeking pre- arrest bail. It has been asserted that FIR No. 176 dated 16.07.2022 was registered at Police Station Shimla (West) on 15.07.2022. The police party checked an HRTC Bus on the intervening night of 15/16.07.2022. They found a backpack on the iron rack near seat no. 12 13 14W containing 336.63 grams of intoxicating powder. The police could not find the name of the owner of the backpack. Subsequently, the police claimed that the petitioner was involved in the commission of the crime. The police had also found the clothes in the backpack and asked the petitioner to wear the clothes but they were not found fit for him; hence, he was permitted to leave. The petitioner has an apprehension of his arrest; therefore, the petition.

2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 16.07.2022. The police checked an HRTC Bus on 16.07.2023 at 12:15 am and found a backpack on the iron rack kept above seat no. 12 13 14W. The Police interrogated the passengers but nobody claimed the ownership of the backpack. The police checked the backpack and found 333.63 grams of heroin in it. The police seized the same. The police conducted the investigation and checked the CCTV footage in ISBT, Sector 43, Chandigarh. The police found one person boarding the bus with a backpack. The police matched the photograph with the CCTV footage and found it to be that of the petitioner. The police checked the CCTV footage of the motorcycle parking and found that a person carrying the backpack had got down the motorcycle bearing registration no. CH01-BW-7097. One person came to pick up the motorcycle on 16.7.2022 at 5:00 pm, who revealed his name as Raja Khan and disclosed on enquiry that the motorcycle belonged to Dildar Khan alias Sonu Khan who is his maternal uncle. The police searched for Dildar Khan alias Sonu Khan but could not find him. He had also switched off his mobile phone. The police also obtained the non-bailable warrants of arrest from the Court. The Court has issued the proclamation under Section 82 of Cr.P.C. and declared the petitioner as a proclaimed offender on 21.08.2023. The petitioner is involved in the commission of a heinous offence and has been absconding for about one year; therefore, it was prayed that the present petition be dismissed.

3. I have heard Ashok Kumar Thakur, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.

4. Mr. Ashok Kumar Thakur, learned counsel for the petitioner submitted that the petitioner was falsely implicated. He was allowed to leave from the spot. There is no material to connect the petitioner with the commission of crime; therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

5. Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the petitioner was declared a proclaimed offender by a Competent Court of law and cannot be granted pre-arrest bail. The police have collected the CCTV footage, which clearly shows the petitioner boarding the bus with the backpack containing heroin in it. Thus, there is sufficient material to connect the petitioner with the commission of a crime. The quantity of heroin was commercial and the rigours of Section 37 of the NDPS Act apply to the present case. The petitioner had absconded after the incident and he will abscond again, in case, he is released on bail; therefore, he prayed that the present petition be dismissed.

6. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement, 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

“67. Ordinarily, arrest is a part of the pro