Himachal Pradesh High CourtDipesh Chauhan vs State Of Himachal Pradesh on 6 March, 2020Bench: Anoop Chitkara1IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA\n                             Cr.MP(M) No. 306 of 2020\n\n\n\n\n                                                                        .Reserved on : March 05, 2020\n\n\n\n\n\n                             Date of Decision : March         6 , 2020\n\n\n\n\n\nDipesh Chauhan                                       ...Petitioner.\n\n                             Versus\n\nState of Himachal Pradesh                            ...Respondent.\n\n\n\n\n\nCoram:The Hon'ble Mr. Justice Anoop Chitkara, Judge.Whether approved for reporting?1 No.\n\nFor the petitioner   :    Mr. Rajesh Kumar and Mr. Rakesh Chauhan,\n\n                          Advocates, for the petitioner.For the respondent :      Mr. Nand Lal Thakur, Addl. A.G. with Mr. Rajat\n                          Chauhan, Law Officer, for the respondent/State.Anoop Chitkara, Judge.For possessing 37.77 grams of heroin, the petitioner, who is under arrest,\non being arraigned as accused in FIR Number 22 of 2020, dated Feb 15, 2020,\n\n\n\n\n\nregistered underSections 21&29of the Narcotic Drugs andPsychotropic\nSubstances Act, 1985 (after now called "NDPS Act"), in the file of Police Station\n\n\n\n\n\nSadar Solan, District Solan, HP, disclosing non-bailable offences, has come up\nbefore this Court underSection 439CrPC, seeking regular bail.2.      Status report stands filed and taken on record. I have seen the status\nreport(s) as well as the Police file, to the extent it was necessary for deciding the\npresent petition, and heard learned Counsel for the parties.\nFACTS3.      The gist of the First Information Report and the investigation is that on\nFeb 15, 2020, Police party was conducting patrolling duty in plain clothes to1Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 06/03/2020 20:27:07 :::HCHP2detect crime within the jurisdiction of Police Station Sadar Solan, Distt. Solan. At\n3.00 p.m. when the police party reached at a place near Mohan Park in\nChambaghat then they received a secret information that Dipesh Chauhan who\n\n\n\n\n                                                                     .has taken premises on rent on the ground floor of a building known as Kapoor\nVilla, near the Bharat Petrol Pump, is present in his house and five - six boys\n\n\n\n\n\nand girls are consuming drugs. The informant further told the police that even\nnow they have huge quantity of Heroin with them. On this the police officials\ncomplied with the provisions ofSection 42(2)of the NDPS Act and proceeded\n\n\n\n\n\ntowards the rented premises of aforesaid Dipesh Chauhan. After associating\nindependent witnesses the police party knocked at the door of the said rented\npremises on which one person opened the door who on inquiry revealed his\n\nname as Dipesh Chauhan, the petitioner herein. Within the room three more\n\nboys and two girls were also present and all these boys and girls were almost of\nthe same age group. Police also noticed foil paper which had carbon on it and a\nfolded ten rupees currency note. All these were tell tale signs of consumption of\n\n\n\ndrugs. The police also recovered a pouch which was kept below the clipboard\nand recovered dark brown coloured substance from the same. When the police\n\n\n\n\nofficials weighed the recovered substance on a digital weighing machine it\n\n\n\n\n\nmeasured 37.77 grams. Prima facie, the recovered contraband was identified as\nHeroin. Subsequently, the Police party also complied with the procedural\n\n\n\n\n\nrequirements under theNDPS Actand theCrPCand arrested all these six\npersons including the bail petitioner.ANALYSIS AND REASONING:4.     Pre-trial incarceration needs to be justified depending upon the heinous\nnature of the offence, terms of the sentence prescribed in the Statute for such a\ncrime, accused fleeing from justice, hampering the investigation, and doing\naway with witnesses. The Court is under the Constitutional obligation to\nsafeguard the interests of the victim, the accused, the society, and the State.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP35.Section 2(vii-a) of theNDPS Actdefines commercial quantity as the\nquantity greater than the quantity specified in the schedule, andS. 2(xxiii-a),\ndefines a small quantity as the quantity lesser than the quantity specified in the\n\n\n\n\n                                                                    .schedule ofNDPS Act. The remaining quantity falls in an undefined category,\nwhich is now generally called as intermediate quantity. All Sections in theNDPS\n\n\n\n\n\nAct, which specify an offense, also mention that minimum and maximum\nsentence, depending upon the quantity of the substance. Commercial quantity\nmandates minimum sentence of ten years of imprisonment and a minimum fine\n\n\n\n\n\nof Rupees One hundred thousand, and bail is subject to the riders mandated in\nS. 37 ofNDPS Act.6.     The substance recovered from the petitioner and the other co-accused is\n\njust 37.77 grams and close to small quantity. In the status report, there is no\n\nmention of any previous criminal history of the bail petitioner who is just 23\nyears of age. This Court is inclined to afford last opportunity to the petitioner,\nmaking it very clear that in case, the petitioner repeats the offence, then this\n\n\n\nbail is liable to be cancelled.7.     Given the above reasoning, in my considered opinion, the judicial\n\n\n\n\ncustody of the petitioner/accused is not going to serve any purpose whatsoever,\n\n\n\n\n\nand I am inclined to grant bail on the following grounds, but subject to stringent\nconditions:a) As per the FIR, the substance involved is Heroin, mentioned at Sr.\n           No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) ofNDPS Act, specifying small and commercial quantities of drugs and\n           psychotropic substances.b) The quantity of drug involved is less than Commercial Quantity but\n           greater than Small Quantity. As such the rigors ofSection 37of NDPS\n           Act shall not apply in the present case. Resultantly, the present case\n           has to be treated like any other case of grant of bail in a penal\n           offence.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP4c) The petitioner is in judicial custody since Feb 15, 2020.d) The investigation in the case is almost complete.e) The petitioner is a permanent resident of address mentioned in\n\n\n\n\n                                                                     .the memo of parties; therefore, his presence can always be secured.f) In the status report, there is no mention of previous criminal\n\n\n\n\n\n           history of the bail petitioner.8.     In the result, the present petition is allowed. The petitioner shall be\nreleased on bail in the present case, in connection with the FIR mentioned\n\n\n\n\n\nabove, on his furnishing personal bond in the sum of Rs.10,000/- with two\nsureties in the like amount to the satisfaction of the Trial Court or the Court\nexercising jurisdiction over the concerned Police Station where FIR is registered.9.     The Court executing the personal and surety bonds shall ascertain the\n\nidentity of the bail-petitioner, his family members, and of sureties, through\nAADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone\nnumbers and other details, on the reverse page of the bonds.10.    The Counsel for the accused and the attesting official shall explain all\nconditions of this bail to the petitioner.11.    The petitioner undertakes to comply with all directions given in this order\n\n\n\n\n\nand the furnishing of bail bonds by the petitioner is acceptance of all such\nconditions:a) The petitioner shall join the investigation as and when called by\n           the Investigating Officer. However, whenever the investigation takes\n           place within the boundaries of the Police Station or the Police Post,\n           then the accused shall not be called before 9 AM and shall be let off\n           before 5 PM.b) The petitioner shall appear before the Court which issues the\n           summons or warrants, and shall furnish fresh bail bonds to the\n           satisfaction of such Court, if such Court directs to do so.c) The petitioner shall not hamper the investigation.::: Downloaded on - 06/03/2020 20:27:07 :::HCHP5d) The petitioner undertakes not to contact the complainant and\n     witnesses, to threaten or browbeat them or to use any pressure\n     tactics..e) The petitioner undertakes not to make any inducement threat or\n     promise, directly or indirectly, to the investigating officer or any\n\n\n\n\n\n     person acquainted with the facts of the case to dissuade him from\n     disclosing such facts to the Court or any police officer or tamper with\n     the evidence.f) The petitioner shall neither influence nor try to control the\n     investigating officer in any manner whatsoever.g) In case, the petitioner is arraigned as an accused of the\n\n     commission      of   any   offence,   prescribing     the    sentence       of\n\n     imprisonment of more than seven years and in case the bail\n     petitioner is arraigned as an accused in any case, under the\n     provisions of theNDPS Act, irrespective of the quantity, be it a small\n\n\n\n     quantity, then within thirty days of knowledge of such FIR, the\n     petitioner shall intimate the SHO of the present police station, with\n\n\n\n\n     all the details of the present FIR as well as the new FIR. It shall be\n\n\n\n\n\n     open for the State to apply to this Court or to the Trial Court for\n     cancellation of this bail, if it deems fit and proper. It is made clear\n\n\n\n\n\n     that in such case the Court who would be considering such bail\n     application(s) shall take into account that despite warning the\n     accused has repeated the offence.h) Within 30 days from today, the petitioner shall sell, or surrender,\n     all firearms along with ammunition, and arms licenses, if any, to the\n     authority which had given such permission.i) Apart from above, in case the Petitioner does not turn up before\n     the Trial Court, then the trial Court may issue Non-Bailable warrants\n     and send the petitioner to the Judicial Custody for the period for::: Downloaded on - 06/03/2020 20:27:07 :::HCHP6which the presence of the petitioner cannot be dispensed with. If the\n           petitioner violates any other condition(s) as stipulated in this bail\n           order, then the Trial Court may direct the Public Prosecutor to file a\n\n\n\n\n                                                                       .cancellation application before it and it shall be lawful and\n           permissible for the Trial Court to cancel the bail.12.    This order of bail does not in any manner limit or restrict the rights or\nduties of the police or investigating agency, to investigate into the charges\nagainst the petitioner.13.    In case the petitioner finds the bail condition(s) as violating fundamental\nor other right, or any human right, or faces any other difficulty due to any\n\ncondition, then, the petitioner may file a reasoned application for modification\n\nof such term(s).14.    It is clarified that the present bail order is only with respect to the above-\nmentioned FIR. It shall not be construed to be a blanket order of bail in all other\n\n\n\ncases, if any, registered against the Petitioner.15.    Any observation made herein above shall not be taken as an expression\n\n\n\n\nof opinion on the merits of the case, and the trial Court shall decide the matter\n\n\n\n\n\nuninfluenced by any observation made herein above.16.    The petition stands allowed in the aforesaid terms.Copy dasti.(Anoop Chitkara),\n                                                              Judge.March 6 , 2020 (PK)::: Downloaded on - 06/03/2020 20:27:07 :::HCHP