Himachal Pradesh High Court
Reserved On : 19.12.2024 vs State Of Himachal Pradesh on 24 December, 2024
Author: Virender Singh
Bench: Virender Singh
2024:HHC:15774
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2833 of 2024
Reserved on : 19.12.2024
Decided on: 24.12.2024
Sunny ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?
For the applicant : Mr. K.S. Gill, Advocate.
For the respondent : Mr. Mohinder Zharaick, Additional
Advocate General, assisted by HC Om
Prakash No.511, Police Station
Nahan.
Virender Singh, Judge
By way of the present application, filed under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as ‘BNSS’), applicant-Sunny
has sought his release, on bail, during the pendency of the
trial, in case FIR No.138 of 2024, dated 23.08.2024,
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registered under Sections 21, 25 and 29 of the Narcotic
Drugs & Psychotropic Substances Act (hereinafter referred
to as the ‘NDPS Act‘), with Police Station Sadar Nahan,
District Sirmaur, H.P.
2. According to the applicant, he is innocent person
and has falsely been implicated, in the present case. The
contraband, allegedly shown to be recovered, in the present
case, is stated to be 11 grams of chitta/heroin, which,
according to the applicant, does not fall within the definition
of ‘commercial quantity’. As such, according to him, rigors of
Section 37 of NDPS Act are not applicable.
3. As per applicant, he is from a respectable family,
having deep roots in the society. Investigation, in the
present case, is stated to be complete and nothing is to be
recovered from the applicant or at his instance.
4. According to the applicant, he had earlier tried
his luck by moving similar application, before the Court of
learned Special Judge-II, Nahan, District Sirmaur, Himachal
Pradesh. However, the same was dismissed vide order dated
07.11.2024.
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5. Apart from this, Mr. K.S. Gill, Advocate,
appearing for the applicant, has given certain undertakings,
for which, the applicant is ready to abide by, in case,
ordered to be released on bail, during the pendency of the
trial.
6. On the basis of the above facts, a prayer has
been made to allow the bail application.
7. When, put to notice, the police has filed the
status report, disclosing therein, that on 23.08.2024,
Constable Vinod No.21 sent a ruqqa to the Police Station
Sadar Nahan, District Sirmaur, through HC Babu Ram
No.644 (IO), AHTU/WPS Detection Cell, mentioning therein
that the IO, along with other police officials, was on
patrolling duty, as well as, the duty to detect the crime,
relating to excise, narcotics, anti-human trafficking, force
labour and illegal mining, towards Kala Amb.
8. It is the case of the police that at about 08:08pm,
when, on their way back to Nahan, at about 10:00pm, they
were present at Kanshiwala Vegetable Market, then, a secret
information was received regarding the indulgence of a boy,
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namely Sunny S/o Krishan Chand R/o Balmiki Basti,
Nahan (applicant), in the business of selling charas and
according to the information, the said boy, in vehicle bearing
No.HR05-BC-0452, is coming from Ambala side to Nahan
side.
9. As per the said information, if the said vehicle is
intercepted and search is conducted, then, the large
quantity of contraband could be recovered, in this case.
According to the IO, in case, he would have made efforts to
obtain the search warrant or authorization letter, in that
eventuality, there were chances of removing the contraband.
As such, he has complied with the provisions of Section
42(2) of the NDPS Act and prepared the report on his laptop
and has taken out the print and submitted the same to
SDPO (Headquarter), Nahan.
10. It is the further case of the police that thereafter,
they had waited for the said vehicle and in the meanwhile, a
boy was seen coming on motorcycle from Nahan side, upon
which, he was signaled to stop. Subsequently, his name was
enquired and he disclosed his name as Ishan, S/o Fakir
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Mohammad, R/o H.No.1150/4, Amarpur Mohalla, Nahan
and he was associated as independent witness, in this case.
Efforts were also made to request the persons, who were
travelling on the road to join as an independent witness,
but, all of them have shown their inability.
11. Thereafter, at about 10:30pm, from Kala Amb
side, a vehicle bearing No.HR05-BC-0452, make Santro,
colour white, being driven by its driver, reached there, which
was made to stop, by parking the official vehicle in the
centre of the road. Thereafter, IO has shown his identity
card to him and on enquiry, he has disclosed his name as
Sunny, S/o Krishan Chand, R/o H.No.282/13, Balmiki
Basti, Nahan, District Sirmaur (applicant). Subsequently, IO
and other police officials had given their search to the
applicant and the search of the said vehicle was conducted.
During search, near the bottle holder, an empty bag was
found to be containing granule-shaped light brown
substance. On testing the said substance on the Drug
Detection Kit, the same was found to be heroin/chitta and
on weighment, it was found to be 11 gms. Thereafter, the
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said contraband was taken into possession and other codal
formalities were completed.
12. After registration of the FIR, the police has
arrested the applicant. Later on, co-accused Kashish
@Shanki Kandhara R/o Ambala was also associated and
arrested, in this case. The contraband, so recovered, was
sent to FSL, Junga, after complying with the provisions of
Section 52A of the NDPS Act and after receiving positive
report from there, the police prepared the challan, in this
case and submitted the same to the Court of learned Special
Judge-II, Nahan, District Sirmaur, H.P.
13. As per the status report, following cases are
stated to have been registered, against the applicant:-
“(i) CASE FIR No.120/04 dated 05.06.2004 u/s
341,323,506 IPC PS Nahan, Compromised Ld. CJM
Nahan on 24-09-2004.
(ii) CASE FIR No.103/05 dated 23/05/05 u/s
504,451,506,34 IPC PS NAHAN Accused Acquitted
by Ld.JMIC, Nahan on 22.09.2006
(iii) CASE FIR No.24/05 dated 3/02/05 u/s
452,323 506,325,34 IPC PS NAHAN Accused
Convicted By LD CJM Nahan on 31-05-2007
(iv) CASE FIR No.144/13 dated 30/09/13 U/S
22,61-85 ND&PS ACT PS NAHAN Accused
Convicted By LD CJM Nahan for six month and fine
RS 10,000/- on 07-09-2016
(v) CASE FIR No.55/2014 U/S 39(1)A HP EX ACT
PS NAHAN Accused Acquitted by LD ADJ Nahan on
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(vi) CASE FIR No.146/15 dated 26/08/15 U/S
363, 366, 342,323, 120B,506 IPC SEC 4,5,(GI) 6
POCSO ACT and SEC 376(2) IPC PS Nahan
Accused Acquitted by LD Session Judge Nahan on
15-03-2019
(vii) CASE FIR No.38/2020 dated 25/04/20 U/S
188,269,270 IPC PS Nahan Accused Convicted By
LD JMFC Nahan and fine RS 300/- on 12-05-2022
(viii) CASE FIR No.04/21 dated 09/01/21 U/S 21
ND&PS ACT PS Nahan on 22-02-2021 LD Session
Judge Nahan which is pending for 30.12.2024
fixation of evidence.
(ix) CASE FIR No.89/2022 dated 10/08/2022 U/S
21-61-85 ND & PS ACT. PS Nahan on 10-10-2022
LD Session Judge Nahan which is pending for
27.12.2024 fixation of evidence.”
14. On the basis of the above facts, a prayer has
been made to dismiss the bail application.
15. As per the details, reproduced above, in cases, at
Sr. No.(i), (ii), (v) and (vi), the applicant was acquitted,
whereas, in case, at Sr. No.(iii), which was registered, under
Sections 452, 323, 506, 325, 34 of IPC, the applicant has
been convicted by the Court of learned CJM, Nahan and in
case, at Sr. No.(iv) also, the applicant was convicted for the
offence, punishable under Section 22-61-85 of NDPS Act
and was sentenced to undergo rigorous imprisonment for a
period of six months and to pay a fine of Rs.10,000/-.
16. Similarly, the applicant has been convicted for
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the offence, punishable under Section 188, 269, 270 of IPC,
by the Court of learned JMFC, Nahan, whereas, other two
cases, which have been registered, under the NDPS Act, are
pending adjudication.
17. In such situation, the first question, which arises
for determination, before this Court, is as to whether in view
of the above cases, the relief, for which, the applicant is
otherwise entitled for, can be given to him or not.
18. No doubt, the applicant has been convicted in a
case, registered under Sections 22-61-85 of the NDPS Act,
vide FIR No.144 of 2013 dated 30.09.2013 and the judgment
of conviction and order of sentence of the said case was
passed, way back on 07.09.2016, whereas, two other cases
have been registered, in the years 2021 and 2022 (cases at
Sr. No.viii and ix).
19. Merely, the applicant has been convicted in a
case, which was registered, in the year 2013, is too short to
bring the applicant, within the ambit of ‘habitual offender’.
20. The Hon’ble Supreme Court in ‘Dhanji Ram
Sharma v. Superintendent of Police, North District
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Delhi Police’, reported in 1966 AIR SC 1766, has
considered the powers of the police officials to make entries
in the surveillance register and also held, as under:-
“7. A habitual offender or a person habitually
addicted to crime is one who is a criminal by
habit or by disposition formed by repetition of
crimes. Reasonable belief of the police officer
that the suspect is a habitual offender or is a
person habitually addicted to crime is sufficient
to justify action under Rules 23.4(3)(b) and
23.9(2). Mere belief is not sufficient. The belief
must be reasonable, it must be based on
reasonable grounds. The suspect may or may
not have been convicted of any crime. Even apart
from any conviction, there may be reasonable
grounds for believing that he is a habitual
offender.”
21. In this regard, it is further apt for this Court to
rely upon the decision of the Hon’ble Supreme Court in
‘Vijay Narain Singh v. State of Bihar‘, reported in
1984(3) SCC 14. Relevant paragraphs 11 and 12 of the said
judgment are reproduced, as under:-
“11. According to its ordinary meaning, the word
‘habitual’ as given in Shorter Oxford English
Dictionary, Vol. 1, P.910 is :
“A. adj (1) Belonging to the habit or inward
disposition, inherent or latent in the mental
constitution;
(2) of the nature of a habit; fixed by habit;
constantly repeated, customary.
B. A habitual criminal, drunkard, etc.”
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12. A person is a habitual criminal who by force
of habit or inward disposition, inherent or latent
in him, has grown accustomed to lead a life of
crime. It is the force of habit inherent or latent in
an individual with a criminal instinct, with a
criminal disposition of mind, that makes him
dangerous to the society in general. In
strengthen language the word ‘habitually’ means
‘by force of habit’.”
22. Judging the facts and circumstances of the
present case, in the light of the above two decisions of the
Hon’ble Supreme Court, this Court is of the view that merely
the fact that the applicant has been convicted for the
offence, punishable under the provisions of the IPC and in
one case, which has been registered under Sections 22-61-
85 of NDPS Act, that too, in the year 2013, is not sufficient
to hold that the applicant is a habitual offender.
23. Mere registration of two other cases, under the
provisions of Section 21 of the NDPS Act, is also not
sufficient to take away the presumption of innocence, which
is still available to the applicant.
24. Moreover, the applicant cannot be penalized,
before conclusion of the trial, merely, on the basis of the
conviction, which was recorded, in the case of NDPS Act,
way back on 07.09.2016.
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25. Learned Additional Advocate General, appearing
for the State, could not satisfy the judicial conscience of this
Court, whether, any efforts have been made by the police to
approach the appropriate Court for cancelling the bail,
granted to the applicant in earlier cases.
26. Furthermore, the present case can be seen from
another angle that a person, who has been convicted for the
offence punishable, under the provisions of NDPS Act, is
also easy prey, to be named as an accused in other cases
also. Moreover, the previous conviction is a factor, which
can only be considered, by the Court, in case of trial, before
the Court of Sessions, under the provisions of Section 236 of
the Code of Criminal Procedure (hereinafter referred to as
the ‘CrPC‘) and in case of trial of warrant cases, before the
Magistrate, under Section 248(3) of the CrPC. Relevant
provisions of Sections 236 and 248(3) are reproduced, as
under:-
“236. Previous conviction.–In a case where a
previous conviction is charged under the provisions of
sub-section (7) of section 211, and the accused does
not admit that he has been previously convicted as
alleged in the charge, the Judge may, after he has
convicted the said accused under section 229 or
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previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the
Judge nor shall the accused be asked to plead thereto
nor shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless
and until the accused has been convicted under
section 229 or section 235.
248(3). Acquittal or conviction.–
Where, in any case under this Chapter, a previous
conviction is charged under the provisions of sub-
section (7) of section 211 and the accused does not
admit that he has been previously convicted as
alleged in the charge, the Magistrate may, after he has
convicted the said accused, take evidence in respect of
the alleged previous conviction, and shall record a
finding thereon:
Provided that no such charge shall be read out by the
Magistrate nor shall the accused be asked to plead
thereto nor shall the previous conviction be referred to
by the prosecution or in any evidence adduced by it,
unless and until the accused has been convicted
under sub-section (2).”
Moreover, the relief of bail cannot be declined to a person,
who is otherwise entitled for it, merely on the ground of his
previous conviction, until or unless, he does not fall, within
the definition of ‘habitual offender’.
27. At the time of deciding the bail application, a
delegate balance has to be maintained, as, detailed
discussions about the case of the prosecution would cause
prejudice to the prosecution’s case, as well as, to the case of
the accused.
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28. In the present case, investigation is complete and
this fact is sufficient to demonstrate that the custodial
interrogation of the applicant is no longer required by the
police. Even otherwise, the applicant cannot be kept in the
judicial custody, as a matter of punishment or
prevention/detention, as, for the prevention/detention,
specific provisions have been provided, under the relevant
Act/Rules.
29. Moreover, the applicant is the permanent
resident of Nahan, District Sirmaur and as such, it cannot
be apprehended that in case, he is ordered to be released on
bail, he may not be available for the trial.
30. Considering all these facts, this Court is of the
view that the bail application is liable to be allowed and is
accordingly allowed.
31. Consequently, the applicant is ordered to be
released, on bail, in case FIR No.138 of 2024, dated
23.08.2024, registered under Sections 21, 25 and 29 of the
NDPS Act, with Police Station Sadar Nahan, District
Sirmaur, H.P., on his furnishing personal bonds in the sum
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of Rs.50,000/- with two sureties of the like amount, to the
satisfaction of the learned trial Court.
32. This order, however, shall be subject to the
following conditions:-
a) The applicant shall make himself available for
the purpose of interrogation, if so required and
regularly attend the trial Court on each and every
date of hearing and if prevented by any reason to
do so, seek exemption from appearance by filing
the appropriate application;
b) The applicant shall not tamper with the
prosecution evidence nor hamper the investigation
of the case in any manner whatsoever;
c) The applicant shall not make any inducement,
threat or promises to any person acquainted with
the facts of the case so as to dissuade them from
disclosing such facts to the Court or the Police
Officer, and
d) The applicant shall not leave the territory of
India without the prior permission of the Court.
33. Any of the observations, made hereinabove, shall
not be taken, as an expression of opinion, on the merits of
the case, as these observations are confined, only to the
disposal of the present bail application.
34. It is made clear that respondent-State is at
liberty to move an appropriate application, in case, any of
the bail conditions is found violated by the applicant.
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35. The Registry is directed to forward a soft copy of
the bail order to the Superintendent of Jail, Model Central
Jail, Nahan, through e-mail, with a direction to enter the
date of grant of bail in the e-prison software.
36. In case, applicant is not released within a period
of seven days, from the date of grant of bail, the
Superintendent of Jail, Model Central Jail, Nahan, is
directed to inform this fact to the Secretary, DLSA, Sirmaur
at Nahan. The Superintendent of Jail, Model Central Jail,
Nahan, is further directed that if the applicant fails to
furnish the bail bonds, as per the order passed by this
Court, within a period of one month from today, then, the
said fact be submitted to this Court.
(Virender Singh)
Judge
November 24, 2024
(Gaurav Thakur)
Digitally signed by RAJNI
Date: 2024.12.24 13:58:51 IST