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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 423 of 2020

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Reserved on : June 1, 2020

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Date of Decision : June 2 , 2020

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Khekh Ram ...Petitioner.
Versus

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State of Himachal Pradesh ...Respondent.

Coram:
The Hon’ble Mr. Justice Anoop Chitkara, Judge.
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Whether approved for reporting?1 No.
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For the petitioner : Mr. Gobind Korla, Advocate, for the petitioner,
appeared through video conference.
For the respondent : Mr. Nand Lal Thakur, Addl. Advocate General, Mr.
Ram Lal Thakur, Asstt. A.G. and Mr. Rajat Chauhan,
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Law Officer, for the respondent/State, appeared

through video conference.
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COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

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Anoop Chitkara, Judge.

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For possessing 1 k.g. of Charas, the petitioner, who is under arrest,

on being arraigned as accused in FIR Number 110 of 2018, dated 27.7.2018,
registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (after now called “NDPS Act”), in Police Station Nagrota
Bagwan, District Kangra, HP, disclosing non-bailable offences, has come up
before this Court under Section 439 CrPC, seeking regular bail.
2. While issuing notices to the State, the Court had requested Mr. Nand Lal
Thakur, Additional Advocate General to have telephonic instructions in the

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Whether reporters of Local Papers may be allowed to see the judgment?

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matter from the concerned Police Station, and to procure status report
immediately, either through WhatsApp/e-mail and forward the same to this
Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF

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copy of the status report to the learned Counsel for the petitioner on his
WhatsApp number.

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3. Mr. Nand Lal Thakur, learned Additional Advocate General has filed the
status report through e-mail, printout whereof has been placed on record. He

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further submits that he has sent a copy of the status report to Mr. Gobind Korla,
Advocate, learned Counsel for the petitioner on his WhatsApp number.
4. I have read the status report(s) and heard counsel for the parties through
video conference.
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5. Prior to the present bail petition, the petitioner had filed bail petition
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under Section 439 CrPC, before learned Special Judge-I, Kangra at Dharamshala,
Distt. Kangra, HP. However, vide order dated 29.10.2018, the Court had
dismissed the same for the reason that petitioner Khekh Ram has three cases
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registered against him under the ND&PS Act bearing FIR Nos. 395 of 2009, 120
of 2011 and 06 of 2013, in Police Station Kullu, establishing that he is habitual
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offender and his release on bail would not be in the large interest of justice, as
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he could repeat the similar offence and certainly his release on bail would give
wrong signal to the society.
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FACTS
6. The gist of the First Information Report and the investigation is that on
27.7.2018, Police Party headed by the Inspector of Police Station Nagrota
Bagwan, was present alongwith other police officials on National Highway No.
154, opposite Police Chowki, Nagrota Bagwan. The police officials were
conducting traffic checking and at that time at around 5.15 a.m., one jeep
bearing No. HP66-4341 came. The police signaled the said jeep to stop on
which it halted and police noticed that it was carrying vegetables. In the cabin of
the jeep apart from its driver one another person was sitting. The police

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officials asked the driver to get the papers of the vehicle checked. The moment
the driver started coming out with the file of the documents, then in the
meantime, the other person took a bag in his hand, opened the door of the jeep

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and started running towards the opposite direction. Since it was dark, the said
person fell down in a drain, as a result of which he received injuries on his

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person. Because of the conduct of the said person, the police became
apprehensive that he is carrying some contraband. On inquiry, the said person

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revealed his name as Khekh Ram, the petitioner herein.
7. The police officials asked the petitioner the reason for his running away
to which he could not give any satisfactory reply. After this the Inspector
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checked the bag which the petitioner was carrying and on opening it found
charas in it. After that the Inspector sent one Constable to bring the weighing
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scale and when police weighed the same on the scale it measured one kilogram.
Subsequently, the police party also complied with the procedural requirements
under the NDPS Act and the CrPC and arrested the petitioner.
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8. During investigation, the police also sent the contraband for chemical
analysis to State Forensic Science Laboratory, Junga, which opined the exhibit
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as extract of cannabis and sample of charas.

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PREVIOUS CRIMINAL HISTORY

9. As per the status report the following cases are registered against the pe-
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titioner:-

(i) Case FIR No. 395 of 2009, under the ND&PS Act, Police Station
Kullu, HP, wherein he stands acquitted by the Apex Court.
(ii) Case FIR No. 120 of 2011, under the ND&PS Act, Police Station
Kullu, HP; and
(iii) Case FIR No. 06 of 2013, under the ND&PS Act, Police Station
Kullu, HP.

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SUBMISSIONS:

10. The learned counsel for the bail petitioner submits that the allegations

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against the petitioner are false and he has nothing to do with the said

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allegations. He further states that petitioner has to shoulder responsibility of his
family and also submitted that his bail petition be considered on humanitarian

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grounds in view of the spread of the Covid-19 pandemic.
ANALYSIS AND REASONING:

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11. Pre-trial incarceration needs justification depending upon the heinous
nature of the offence, terms of the sentence prescribed in the Statute for such a
crime, probability of the accused fleeing from justice, hampering the
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investigation, and doing away with victim(s) and/or witnesses. The Court is
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under an obligation to maintain a balance between all stakeholders and
safeguard the interests of the victim, accused, society, and State.
12. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the
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quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a),
defines a small quantity as the quantity lesser than the quantity specified in the
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schedule of NDPS Act. The remaining quantity falls in an undefined category,

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which is now generally called as intermediate quantity. All Sections in the NDPS
Act, which specify an offense, also mention that minimum and maximum
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sentence, depending upon the quantity of the substance. Commercial quantity

mandates minimum sentence of ten years of imprisonment and a minimum fine
of Rupees One hundred thousand, and bail is subject to the riders mandated in
S. 37 of NDPS Act.
13. The following aspects are relevant to decide the present bail petition:
(a) As per the FIR, the substance involved is Charas, mentioned at
Sr. No. 23 of the Notification, issued under Section 2(viia) and (xxiiia)
of NDPS Act, specifying small and commercial quantities of drugs and

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psychotropic substances, wherein the small quantity is lesser than

100 grams, whereas commercial quantity if greater than 1 k.g.
(b) The quantity of drug involved is less than Commercial Quantity.

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As such the rigors of Section 37 of NDPS Act shall not apply in the
present case. Resultantly, the present case has to be treated like any

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other case of grant of bail in a penal offence.
(c) The point that 1 k.g. charas is not a commercial quantity is no

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more res integra in view of the pronouncement of a larger Bench of
this Court in Ratto vs. State of Himachal Pradesh, 2004(1) R.C.R.
(Criminal) 501, wherein the Court holds as under:
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“1. This matter has been referred on the following questions: -
"Whether 1 kg. Cannabis (Charas) will be commercial
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quantity in the face of Section 2(vii-a) of the Act, 1985, as
has been held in the aforesaid two decisions of this court?"
33. In view of the aforesaid discussion, in our view, decisions of this
Court in Mathew Andrews British National v. State of H.P., Cr. M.P.
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(M) No. 1492 of 2001; State v. Munshi Ram, Criminal Revision No.
140 of 2000 and Sarvjeet Singh v. State, Cr. M.P.(M) No. 1088 of
2002 (so far dealing with "commercial quantity" while cancelling the
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bail) do not lay the correct law, therefore, these are overruled. At
the same time, while answering this reference, it is held that in order
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to be the "commercial quantity" as defined in Section 2(viia) of the

Narcotic Drugs and Psychotropic Substances Act, 1985 as amended
by Central Act of 2001, it has always to be more than/greater
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than/bigger than on kg.”

(d) In Sami Ullaha vs. Superintendent narcotic control Bureau,
(2008) 16 SCC 471, Supreme Court holds,
“The quantity, thus, alleged to have been recovered from the
co-accused persons could be said to be intermediate quantity
and, thus, the rigours of the provisions of Section 37 of the Act
relating to grant of bail may not be justified.”

(e) Although there is criminal history of the bail petitioner and on this
ground previously the Court below had rejected the bail application
of the petitioner. But keeping in view the current Covid-19

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pandemic, the petitioner has come up again before this Court on the
grounds that his family is facing extreme financial difficulty and the
family is extremely concerned about each other. Without this case

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being cited as a precedent, keeping in view the peculiar
circumstances coupled with the fact that the charas recovered from

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the petitioner was 1 k.g., and consequently the quantity involved in
this case is not a commercial quantity, this Court is inclined to

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afford last opportunity to the Petitioner to mend his ways, making
it very clear that in case, the petitioner repeats the offence under
NDPS Act, irrespective of the quantity, be it small, then this bail
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shall automatically stand cancelled and it shall be open for the
Investigating Officer to seek arrest warrants from the concerned
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Court. It shall also be a factor for future bail applications of the
petitioner.
(f) The material aspect of the investigation is complete.
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(g) The petitioner is in judicial custody since 27.7.2018.

(h) The petitioner is a permanent resident of address mentioned in
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the memo of parties i.e. Khekh Ram son of Sh. Chuhru Ram, resident
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of Village Karmang, Post Office Salang, Tehsil and Police Station Sadar
Kullu, Distt. Kullu, HP, therefore, his presence can always be secured.
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(i) Before releasing the petitioner from custody, her/his AADHAR

and other proofs of identity to secure presence during trial.

14. Given the above reasoning, in my considered opinion, the judicial custody
of the petitioner is not going to achieve any significant purpose. Thus, the Court
is granting bail, subject to the following conditions, irrespective of the contents
of the bail bonds, and the furnishing of personal bond shall be deemed
acceptance of all stipulations, terms and conditions of this bail order:

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(a) The petitioner shall furnish personal bond in the sum of Rs.
1,00,000/- (rupees one lac only) with one surety in the like amount,
to the satisfaction of the Sessions Court/Special Court/ Chief Judicial

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Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising
jurisdiction over the concerned Police Station where FIR is registered.

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(b) The bail bonds shall continue to remain in force throughout the
trial and even after that in terms of Section 437-A of the CrPC.

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(c) The petitioner shall join investigation as and when called by the
Investigating officer or any superior officer. Whenever the
investigation takes place within the boundaries of the Police Station
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or the Police Post, then the petitioner shall not be called before 8 AM
and shall be let off before 5 PM. The petitioner shall not be subjected
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to third-degree treatment, indecent language etc.
(d) The petitioner shall fully co-operate in the investigation and shall
not hamper it, in any manner what so ever.
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(e) The petitioner shall not influence, threaten, browbeat or

pressurize the complainant, witnesses, and the Police official(s).
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(f) The petitioner shall not make any inducement, threat, or promise,
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directly or indirectly, to the Investigating officer, or any other person

acquainted with the facts of the case, to dissuade her from disclosing
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such facts to the Police, or the Court, or tamper with the evidence.
(g) The petitioner shall appear before the trial Court, on issuance of
summons/warrants by such Court.
(h) There shall be a presumption of proper service to the petitioner
about the date of hearing in the trial Court, even if such service takes
place through phone/mobile/SMS/WhatsApp/E-Mail or any other
similar medium, by the trial Court, or by the Prosecution. In case the
petitioner does not appear before the trial Court on such date of
hearing, then the trial Court may issue bailable warrants, and if the

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petitioner still fails to put in appearance, then the trial Court may
issue Non-Bailable warrants to procure the presence of the
petitioner, and send the petitioner to the Judicial custody for the

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period for which the trial Court may deem fit and proper, without
being unduly harsh towards him.

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(i) The petitioner shall attend the trial on each date, unless
exempted.

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(j) In case of non-appearance on the intimated date, then
irrespective of the contents of the bail bonds, the petitioner
undertakes to pay all the expenditure (only the principal amount
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without interest), that the State might incur to produce him before
such Court, provided such amount exceeds the amount recoverable
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after forfeiture of the bail bonds, subject to the provisions of Sections
446 & 446-A of CrPC. The failure of the petitioner to reimburse the
State shall entitle the trial Court to order transfer of money from the
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bank account(s) of the petitioner. However, this recovery is subject to

the condition that the expenditure incurred must be only to trace the
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petitioner and relates to the exercise undertaken solely to nab the

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petitioner in that FIR, and during that voyage, the Police had not
gone for any other purpose/function what so ever.
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(k) The petitioner shall abstain from all criminal activities, if he does
so, then in the fresh FIR, the Court shall take into account that even
earlier the Court had cautioned the accused not to repeat the
offence.
(l) During the pendency of the trial, if the petitioner commits any
offence under NDPS Act, even if it involves small quantity or if he
commits any offence where the sentence prescribed is seven years or
more, then this bail order shall stand cancelled automatically and the
State shall file application for cancellation of the bails in FIR No. 120

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of 2011 and FIR No. 06 of 2013, both registered at Police Station

Sadar Kullu, Distt. Kullu, HP.
(m) The petitioner shall surrender all firearms along with

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ammunition, if any, and the arms license to the concerned authority
within 30 days from today.

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(n) The petitioner shall inform the SHO about the place of residence
during trial. The petitioner shall intimate about the change of

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residential address, within two weeks from such change, to the police
station, and after filing of the Police report also to the trial Court.
(o) In case of violation of any of the conditions as stipulated in this
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order, the State/Public Prosecutor may file an application for
cancellation of bail of the petitioner, and even the trial Court shall be
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competent to cancel the bail.
15. In case the petitioner finds the bail condition(s) as violating fundamental
or other rights, including any human rights, or faces any other difficulty due to
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any condition, then for modification of such term(s), the petitioner may file a
reasoned application before this Court, and after taking cognizance, before the
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Court taking cognizance or the trial Court, as the case may be.
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16. The Counsel representing the accused and the Judicial officer accepting
the bail bonds, shall explain all conditions of this bail order to the petitioner, in
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vernacular.
17. The petitioner undertakes to comply with all directions given in this
order, and the furnishing of bail bonds by the petitioner is acceptance of all such
conditions.
18. Consequently, the petitioner shall be released on bail in the present case,
in connection with the FIR mentioned above, on his furnishing bail bonds in the
aforesaid terms.
19. The Court attesting the bail bonds shall ascertain the identity of the bail-
petitioner, his family members, through AADHAR Card. The petitioner shall give

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details of AADHAR Card, phone number(s), WhatsApp number, e-mail, etc., Pan
Card and Passport if available, on the reverse page of the bonds. The petitioner
shall also furnish details of personal bank account(s).

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20. This order does not, in any manner, limit or restrict the rights of the
Police or the investigating agency, from further investigation.

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21. The present bail order is only for the FIR mentioned above. It shall not be
a blanket order of bail in all other cases, if any, registered against the petitioner.
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Any observation made hereinabove is neither an expression of opinion
on the merits of the case, nor shall the trial Court advert to these comments.
23. The petition stands allowed in the terms mentioned above.
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The Court Master shall handover this order to the concerned branch of
the Registry of this Court, and the said official shall immediately send a copy of
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this order to the District and Sessions Judge, concerned, by e-mail. The Court
attesting the personal bonds shall not insist upon the certified copy of this
order, and shall download the same from the website of this Court, which shall
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be sufficient for the purposes of the record.

The Court Master shall handover an authenticated copy of this order to
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the Counsel for the Petitioner, and to the Learned Advocate General, if they ask
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for the same.

(Anoop Chitkara),
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Judge.
June 2 , 2020 (PK)

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