Sandeep Sharma, J. (Oral):— By way of instant petitions filed under Section 439 CrPC, prayer has been made for grant of bail in FIR No. 235 of 2016 dated 22.7.2016 under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Paonta Sahib, District Sirmaur, Himachal Pradesh. Though, status report was filed on 15.6.2017, no fresh status report has been filed today, in pursuance to order dated 15.6.2017
2. Perusal of status report suggests that on 22.7.2016, police apprehended bail petitioners carrying 90 bottles of Corex cough syrup in four packets. Each bottle contained 100 ml contents, out of which 10 mg was Chlorpheniramine materate and Codeine Phosphate. Since bail petitioners, riding motor cycle No. UP-11AW-0408 failed to produce any document/permit for possessing the above named drug, FIR as mentioned above came to be registered against them under Section 21 of the Narcotic Drugs & Psychotropic Substances Act on 22.7.2016, and since then, bail petitioners are in custody.
3. It also emerges from the status report that recovered contraband was sent to SFSL Junga for chemical analysis. SFSL, in its report has concluded that Codeine Phosphate measuring 2.006 mg/ml is present in 100 ml bottle of Corex cough syrup. SFSL report has concluded that Codeine Phosphate is present in the exhibit stated to be Corex cough syrup.
4. Mr. Deepak Kaushal, learned counsel representing the petitioners, while inviting attention of this Court to report submitted by SFSL Junga, contended that the psychotropic substance is of ‘small quantity’. Mr. Kaushal further contended that as per report of FSL, prohibited drug namely Codeine Phosphate has been found to be 2.006 mg/ml, meaning thereby, quantity, if taken into consideration of recovered 90 bottles comes to less than ‘small quantity’ and as such petitioners are entitled to be released on bail. Learned counsel further contended that only psychotropic substance contained in the contraband is required to be taken into consideration while determining quantity of prohibited drug i.e Codeine Phosphate and not the whole of the mixture contained in cough syrup namely Corex. Mr. Kaushal further contended that petitioners is in custody since 22.7.2016 and more than one year has passed and in case, it is presumed that petitioner has violated Section 21 of the Act, even in that eventuality one year imprisonment is provided for contraband of ‘small quantity’. While concluding his arguments, Mr. Kaushal also invited attention of this Court to judgment passed by a coordinate bench of this Court in CrMP(M) No. 432 of 2017 titled Ankush Chauhan v. State of H.P, decided on 25.4.2017 as well as in CrMP(M) No. 817 of 2016 titled Prashant Chauhan v. State of H.P decided on 15.7.2016
5. Mr. P.M Negi, learned Additional Advocate General, while inviting attention of this Court to status report, as referred above, opposed the prayer having been made by the learned counsel representing the petitioners, for grant of bail. Mr. Negi, strenuously argued that the contraband/psychotropic substance recovered from bail petitioners falls within ‘commercial quantity’ and as such no leniency can be shown while considering petitioners' prayer for grant of bail. Mr. Negi, further stated that as per settled law, entire material contained in the recovered contraband is required to be taken into consideration, while determining quantity of psychotropic substance. While inviting attention of this Court to the report of SFSL, Mr. Negi contended that if report of SFSL is read in its entirety, it has been clearly concluded that Codeine Phosphate is present in the exhibit, as such, by no stretch of imagination, it can be contended that contraband/psychotropic substance recovered from the petitioner is of ‘small quantity’.
6. I have heard the learned counsel for the parties and gone through the record carefully.
7. In the instant case, as per report of SFSL, prohibited drug namely Codeine Phosphate has been found to be 2.006 mg/ml, meaning thereby, quantity of prohibited drug, if taken into consideration qua 90 bottles allegedly recovered from the petitioner, comes out to be less than ‘small quantity’. SFSL, while concluding that 2.006 mg Codeine Phosphate is found per ml, has nowhere rendered any opinion with regard to remaining contents/mixture of tablets, hence, inference can be drawn that ‘small quantity’ of Codeine Phosphate is present in recovered tablets. Though, aforesaid aspect of the matter is to be considered and examined in detail by trial Court during the course of trial, but, after having carefully perused opinion rendered by SFSL, as well as judgments rendered by the Hon'ble Full Bench in Mehboob Khan's case (supra), which has been further followed by a coordinate Bench of this Court in Ankush Chauhan's case and Prashant Chauhan's case (supra), this Court is of the view that rigors of Section 37 of the Act are not attracted in the case at hand.
8. Indisputably, investigation in the case is complete and matter is pending before trial Court, as such, this Court is of the view that custodial interrogation of the petitioners is not required at this stage. Moreover, this Court can not lose sight of the fact that petitioners are in custody for one year and as such deserve to be released on bail. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Petitioner is local resident of District Solan and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him.
9. The Apex Court in Prasanta Kumar Sarkar (S) v. Ashis Chatterjee & Anr…. (S) (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(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.
10. In view of above, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs. 50,000 with one surety each in the like amount to the satisfaction of concerned Chief Judicial Magistrate, with following conditions:
(a) They shall make themselves 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 appropriate application;
(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) They shall not leave the territory of India without the prior permission of the Court.
11. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
12. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone.
13. Both the petitions stand accordingly disposed of.
14. Copy dasti.
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