***

RAKESH KAINTHLA, J. –

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police registered an F.I.R. No. 186 of 2023, dated 19.10.2023 at Police Station Kangra, District Kangra, H.P. against the petitioner for the commission of offences punishable under Sections 20 and 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘NDPS Act’).As per the prosecution, the police party searched the house of the petitioner in the presence of the independent witnesses and during the search 26.2 grams of Charas/Cannabis and two transparent plastic packets containing 6.4 grams and 7 grams of heroin kept beneath the mattress of the petitioner were recovered. An amount of ? 25,680/-was also recovered from the Almirah kept in the room. The petitioner is innocent and he was falsely implicated. As per the prosecution, the contraband stated to have been recovered from the possession of the petitioner is less than the commercial quantity. He is the sole breadwinner of the family. No useful purpose would be served by keeping the petitioner in custody. He is ready and willing to join the investigation and abide by all the terms and conditions, which may be imposed by the Court upon him. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

2. The State has filed a status report asserting that the police party was on patrolling duty on 19.10.2023, when a secret information was received that the petitioner was selling narcotics from his home. A huge quantity of narcotics could be recovered in case of search. The information was reduced into writing and sent to the SDPO, Kangra. The police went to the house of the petitioner. The police searched the house and found 26.2 grams of Charas/Cannabis and two transparent plastic packets containing 6.4 grams and 7 grams of heroin kept beneath the mattress of the petitioner. An amount of ?25,680/-was also recovered from the Almirah, kept in the room. The police seized the recovered articles and arrested the petitioner. The report of the analysis is awaited. Five cases were registered against the petitioner but he was acquitted in four cases and in one case a fine of ?5100/- was imposed by the AETC, Dharamshala. The petitioner would indulge in the commission of a similar crime in case he is released on bail. Hence, it was prayed that the present petition be dismissed.

3. I have heard Mr. Vijender Katoch, learned Counsel for the petitioner and Mr. Parshant Sen, learned Deputy Advocate General for the respondent State.

4. Mr Vijender Katoch, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the prosecution case, the petitioner was found in possession of an intermediate quantity of contraband and the rigours of Section 37 do not apply in the present case. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

5. Mr. Parshant Sen, learned Deputy Advocate General submitted that the petitioner is involved in a heinous crime, which is adversely affecting the younger generation. He was also involved in similar cases earlier. Therefore, he prayed that the bail petition be dismissed.

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

7. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

8. A similar view was taken in State of Haryana vs Dharamraj, 2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.’

9. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

10. As per the status report the petitioner was acquitted in four cases and in one case a fine of ?5100/- was imposed by the AETC, Dharamshala. Since the petitioner has been acquitted, therefore, mere registration of F.I.R. is not sufficient to deny bail to him. The fact that the fine was imposed on the petitioner shows that the offence was not serious enough to impose imprisonment.

11. The petitioner was found in possession of an intermediate quantity of heroin and a small quantity of Charas, hence, rigours of Section 37 of the NDPS Act do not apply to the present case.

12. The police asserted that the petitioner was selling narcotics to various persons. However, the status report is silent regarding the names of the persons to whom the narcotics were sold. The statement of any purchaser was not recorded to show that he had purchased the narcotic from the petitioner. Thus, the version in the status report that the petitioner is a Drug Peddler is not acceptable.

13. The petitioner has been in custody since 19.10.2023. As per the status report investigation is continuing and the result of analysis is awaited. It means that the challan is not likely to be filed soon and the trial of the case will take some time after the presentation of the challan. The petitioner cannot be kept behind bars indefinitely awaiting trial.

14. The petitioner was found involved in the commission of an offence punishable under the NDPS Act for the first time and he deserves a chance to reform himself. The continued detention of the petitioner in custody will make the chance of reformation bleak as he will come in contact with the hardened criminals.

15. The petitioner asserted that he is a resident of District Kangra. This was not stated to be incorrect in the reply/status report filed by the State. Therefore, the petitioner has roots in the society and there is no chance of his absconding.

16. Hence, the present petition is allowed. The bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of ? 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

(i) The petitioner will attend the trial on each and every date of hearing and if he is unable to do so, he will seek an exemption from the court by filing an appropriate application,

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever,

(iii) The petitioner shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the I.O/SHO, of the concerned Police Station and the Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

17. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

18. A downloaded copy of this order shall be accepted by the learned trial Court while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

Order accordingly.

********