Yusuf vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Prayer in this petition is for enlargement of the petitioner on bail in FIR No. 73 of 2020, dated 02.06.2020, registered under Section 21 of the

Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’) and Section 181 of the Motor Vehicles Act, at Police

Station, Puruwala, Paonta Sahib, District Sirmour, H.P.

Heard learned counsel for the parties and gone through the status reports, filed by the respondent-State.

According to the Status Reports :-

3(i) On 02.06.2020 a police party was on patrol duty at Bhungarni, Paonta Sahib, when at around 5.00 p.m., it received a secret information about one

Yusuf (bail petitioner herein) coming from Bangran bye-pass towards Bhungarni Chowk, Paonta Sahib on a black coloured scooty having number

plate only at its rear end and carrying a good amount of intoxicating capsules.

3(ii) To save time and to nab the petitioner and considering the fact that information so received was from reliable sources, procedure contemplated

under Section 42(2) of the Act was complied with. The police personnel thereafter reached the spot and after disclosing his identity, associated

proprietor of a nearby located shop alongwith one other person present in the shop as independent witnesses. Barricades were placed for intercepting

the scooty. The scooty in question reached the site of barricades at around 05.20 p.m. It was driven by the bail petitioner.

3(iii) Search of scooty was carried out in accordance with law. During search, 36 strips of Simplex C Plus Capsules B No. SMC-20009, Neutec

Healthcare Pvt. Ltd., were recovered underneath the seat. Each strip contained 8 capsules. In all, 288 capsules were recovered, wherein quantity of

Tramadol was found as 50 mg. per capsule.

3(iv) Since the petitioner could not produce any valid licence/permit for carrying the recovered capsules, therefore, after completion of all codal

requirements, instant FIR was registered against him for possessing contraband in violation of law. Petitioner was arrested on 02.06.2020.

3(v) State Forensic Science Laboratory, Junga analyzed the contraband in question and reported that total weight of the recovered capsules was

191.520 gms. and total weight of powder was 161.280 gms.

According to the status reports, petitioner was also involved in an earlier FIR No. 170 of 2015, registered against him on 29.05.2015, under Sections 15

and 20 of the Act at Police Station, Paonta Sahib for possessing 650 gms. of Poppy straw and 28 gms. of Cannabis. The said matter is stated to be

under consideration before the Court of competent jurisdiction. A previous bail application preferred by the petitioner has been rejected by the learned

Special Judge-II, District Sirmour, H.P. vide order dated 08.07.2020 on account of nature, gravity of accusation and severity of punishment in respect

of offence alleged against the petitioner.

Learned Senior Counsel for the petitioner raised the plea of innocence and false implication of the petitioner. He further submitted that investigation

in the matter is complete. Learned Senior Counsel also pointed out that in the earlier FIR registered against the petitioner, the quantity of Poppy straw

as well as of Cannabis, allegedly possessed by the petitioner, was less than ‘small quantity’ notified under the Act. He further submitted that the

petitioner, who is behind the bars w.e.f. 02.06.2020, will abide by all the terms and conditions which may be imposed upon him in case grant of bail

and that petitioner will neither jump over the bail nor will influence the prosecution witnesses nor will temper with the prosecution evidence.

Learned Additional Advocate General opposed the grant of bail on the ground that petitioner has criminal history in respect of his involvement in the

offence under the Act in FIR No. 170 of 2015. He further submitted that in case this Court is inclined to release the petitioner on bail, then it should be

only on the basis of strict condition that in case in future the petitioner is found to be involved in such like offences having adverse impact upon the

society, then his instant bail will be liable to be cancelled and it shall also be considered as a negative factor for consideration of his future bail

application(s), if any.

5(i). Hon’ble Apex Court in Criminal Appeal No. 722 of 2017, titled as Hira Singh Vs. Union of India, decided on 22nd April, 2020, has held that in

mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be

excluded, rather it is to be taken into consideration alongwith actual content by weight of the offending drug while determining the ‘small quantity or

commercial quantity’ of a narcotic drug or psychotropic substance. The relevant para from the judgment is reproduced thus:-

“10. In view of the above and for the reasons stated above, Reference is answered as under:-

(I) The decision of this Court in the case of E.Micheal Raj (supra) taking the view that in the mixture of narcotic drugs and psychotropic substance

with one or more neutral substance(s), the quantity of the neutral substance(s) is not required to be taken into consideration while determining the

small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic

drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law;

(II) In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or more neutral substance(s), the quantity of neutral

substance(s) is not to be excluded and to be taken into consideration alongwith actual content by weight of the offending drug, while determiningthe

“small or commercial quantityâ€​ of the Narcotic Drugs or Psychotropic Substances;

(III) Section 21 of the NDPS Act is not stand-alone provision and must be construed alongwith other provisions in the statute including provisions in

the NDPS act including Notification No. S.O.2942(E) dated 18.11.2009 and Notification S.O. 1055(E) dated 19.10.2001.

(IV) Challenge to Notification dated 18.11.2009 adding “Note 4†to the Notification dated 19.10.2001, fails and it is observed and held that the

same is not ultra vires to the Scheme and the relevant provisions of the NDPS Act. Consequently, writ petitions and Civil Appeal No. 5218/2017

challenging the aforesaid notification stand dismissed.â€​

In the instant case though the weight of psychotropic substance Tramadol was found 50 mg. per capsule, however, the weight of neutral substance in

the capsule, in view of the above judgment, cannot be excluded. According to the SFSL report, the total weight of recovered capsules was 191.520

gms. and total weight of recovered powder was 161.280 gms. The total weight of capsules/powder is more than ‘small’ but less than

‘commercial quantity’ of Tramadol notified under the Act. The recovered quantity of contraband, therefore, falls in the commonly known

intermediate quantity. Therefore, rigors of Section 37 of the Act will not be attracted.

5(ii) Challan against the petitioner has already been presented before the learned Sessions Judge, District Sirmour, H.P. on 29.07.2020. Therefore, no

fruitful purpose would be served in continuing the petitioner in custody any further. The petitioner is permanent resident of Village Kanshipur, Tehsil

Paonta Sahib, District Sirmour, H.P., therefore, his presence can be secured in the trial. However, considering the fact that FIR No. 170 of 2015,

dated 29.05.2015 under Sections 15 and 20 of the Act was registered against the petitioner for possessing 28 gms. of Cannabis and 650 gms. of Poppy

Straw (both below respective notified ‘small quantity’), a strict condition is imposed upon the petitioner that in case he, in future, is found to be

involved in any offence under the Act, then not only instant bail granted to him is liable to the cancelled but this shall also be considered as a negative

factor for consideration of his future bail application(s), if any. Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail

in the aforesaid FIR on his furnishing personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand) with one local surety in the like amount to the

satisfaction of the learned trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioner is directed to join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with

law.

(ii). The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii). The petitioner will not leave India without prior permission of the Court.

(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with

the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case the petitioner is put to trial, then he shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in

the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail,

PAN Card, Bank Account Number, if any.

(vii). It is made clear that in case the petitioner is arraigned as an accused in future, in any FIR under NDPS Act, then this bail is liable to be

cancelled. It shall also be considered as a negative factor for consideration of his future bail application(s), if any. It is open for the Investigating

Agency to move appropriate application in that regard.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Learned trial Court shall decide the matter without being influenced by any of the observations made above.

The Registry is directed to send a copy of this order to the District and Sessions Judge concerned through e-mail. The parties and the competent

Court/Authority, attesting the personal/surety bonds, shall not insist upon for obtaining/requiring certified copy(s) of this order and shall download the

same from the website of the High Court. However, the Registry is directed to send copy(s) of this order to learned counsel for the parties through e-

mail subject to furnishing e-mail addresses by them, if so required.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

A copy of this judgment, duly authenticated by the Secretary, be supplied to learned counsel for the parties, if so requested.