Dismissed

Kamaldeep v. State of Hp

Himachal Pradesh HC17 Sept 2024CRMPM/1334/2024

Case brief

AI extract

What is this about?

The Himachal Pradesh High Court dismissed a bail petition against a petitioner arrested for possessing heroin under the NDPS Act. The Court found prima facie evidence of conscious possession and noted the petitioner's criminal antecedents and attempt to flee, rejecting the delay argument. Bail was denied.

What did the court decide?

Petition for bail dismissed. The petitioner is to remain in custody.

Kamaldeep Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8628 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 1334 of 2024 Reserved on: 20.08.2024 Date of Decision: 17.09.2024.

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Kamaldeep @ Timmi ...Petitioner Versus State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. Lakshay Parihar, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General for Respondent/State.

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Rakesh Kai0nthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 21 and 29 of Narcotic Drugs and Psychotropic Substances (in short ‘NDPS Act’) registered vide FIR no. 20/2024, dated 01.02.2024, at Police Station Damtal, District Kangra. As per the prosecution, the police signalled the vehicle

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

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to stop but the driver sped away. The car was found to be hanging on the tree and the driver revealed his name as Kamaldeep @ Timmi (the present petitioner). The police searched the vehicle and found 7.20 grams of heroin kept in a tobacco packet on the dashboard of the car. The police registered the FIR and arrested the petitioner and Pawan Kumar, another vehicle occupant. The police searched the house of co-accused Pawan Kumar and recovered 450 grams of charas. The petitioner was previously named in FIR No. 208 of 2013 registered in Police Station Nurpur, FIR No.366 of 2016 in Police Station Nurpur, FIR No. 128/2018 registered in Police Station Jawali, FIR No. 31/2015 registered in Police Station Indora, FIR No. 149/2016 registered in Police Station Indora and FIR No. 148/2022 registered in Police Station Jawali. The petitioner has been falsely implicated. He had no idea that any contraband had been kept in the tobacco packet. No recovery was effected from the petitioner’s search. The police have filed the charge sheet before the Court and no recovery is to be effected from the petitioner. The quantity of contraband stated to have been found in the car was an intermediate quantity and rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner would abide by

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all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 31.01.2024. They were checking the vehicles. A vehicle bearing registration No. HP-38B-3835 came from Bhadroya Chowk at about 12:30 am. The police signalled the driver to stop the vehicle. The driver slowed his vehicle and thereafter sped away. The vehicle hit the barricade. The police followed the vehicle and found that the vehicle was hanging on a tree towards the downside of the road. The police checked the registration number and found it to be HP-38B-3835. Two persons were sitting inside the vehicle, who were taken out. Balwinder Singh and Jagbhushan were associated as independent witnesses. The driver revealed his name as Kamaldeep and the other person revealed his name as Pawan Kumar. The police searched the vehicle in the presence of the occupants and independent witnesses. They recovered a tobacco packet containing 7.20 grams of heroin. The police seized the heroin and arrested the occupants of the vehicle. The police searched the house of Pawan Kumar and recovered 450 grams of cannabis. The

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occupants revealed on inquiry that they had purchased the heroin from Dayapal. The police also arrested him. As per the report of analysis, the Exhibit stated as charas was an extract of cannabis and the exhibit stated as heroin was a sample of Diacetylmorphine. Six FIRs have been registered against the petitioner, out of which, four FIRs have been registered for the commission of offences punishable under various provisions of the NDPS Act. The petitioner would intimidate the witnesses and indulge in the commission of a similar offence in case of his release on bail. Hence, it was prayed that the present petition be dismissed.

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I have heard Mr. Lakshay Parihar, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Mr. Lakshay Parihar, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The heroin was kept in a tobacco packet on the dashboard. The petitioner could not know the contents of the packet. The status report shows that an intermediate quantity of heroin was recovered and the rigours of Section 37 of

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the NDPS Act do not apply to the present case. The challan has been prepared and presented before the Court. No useful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State submitted that the petitioner had sped away his vehicle after getting a signal from the police which shows that he was aware of the contraband present in the vehicle. The petitioner was the occupant of the vehicle from which the recovery was effected and he would be liable for the same. Six FIRs have been registered against the petitioner out of which four FIRs were registered under the various provisions of the NDPS Act. This shows that the petitioner is a habitual offender and he is likely to commit a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The Hon’ble Supreme Court discussed the parameters

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for granting the bail in Bhagwan Singh v. Dilip Kumar 2023 INSC 761:2023 SCC OnLine SC 1059 as under: -

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“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;

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(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;

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(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.

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(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.

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(d) Frivolity 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.

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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:

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“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 with having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication 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:

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

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

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(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] .)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 INSC 784: 2023 SCC Online 1085, wherein it was observed:

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“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:

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‘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:

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

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(ii) nature and gravity of the accusation;

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

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

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

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(vi) likelihood of the offence being repeated;

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

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

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

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The status report shows that the petitioner had sped the vehicle after getting the signal from the police. This prima facie shows that the petitioner was aware that the vehicle was carrying some contraband. Otherwise, he did not have to accelerate his vehicle and attempt to run away from the police. Therefore, prima facie, the petitioner was in possession of the heroin. The petitioner was the occupant of the vehicle from which the heroin was recovered. A similar situation occurred in Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874 , wherein, the contraband was recovered from the vehicle and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed:

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“19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

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Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be conscious possession.

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It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

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The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes.

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The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

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As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

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The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .)

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Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.

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In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accusedappellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

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It was laid down by the Hon’ble Supreme Court in Union of India v. Mohd. Nawaz Khan , (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237 that a person is in possession if he is in a position to exercise control over the article. It was observed on page 111:

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25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664 ] this Court held that: (SCC p. 472, paras 19-23 & 26)

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“ 19 . Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on

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record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

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20 . Section 20( b ) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

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21 . It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

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22 . The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038 ] to work out a completely logical and precise definition of “possession” uniform[ly] applicable to all situations in the context of all statutes.

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23 . The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

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26 . Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act

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gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

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26. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431 ], where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881] , this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

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Hence, prima facie, the petitioner is involved in the commission of an offence punishable under Section 21 of the NDPS Act for possessing 7.20 grams of heroin.

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The status report shows that six FIRs were registered against the petitioner out of which four FIRs were registered under various provisions of the NDPS Act. It was held in Aminodin vs State of H.P. 2024:HHC: 6091 that while granting bail, a Judge must consider whether the accused is a first-time

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offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The bail should not be generally granted to a person having criminal antecedents, where there is likelihood of commission of offence.

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In the present case, the petitioner was involved in the commission of various offences under the NDPS Act. Thus, there is a force in the submission of Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State that the possibility of the commission of the crime in case of release on bail cannot be ruled out.

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A heavy reliance was placed upon the judgment of the Hon’ble Supreme Court in Javed Gulam Nabi Shaikh versus the State of Maharashtra in Criminal Appeal No. 2787 of 2024 decided on 03.07.2024, however, this judgment does not apply to the present case because the Hon’ble Supreme Court held that in case of delay in the progress of the trial, the accused would be entitled to bail. In the present case, there is no delay in the progress of the trial and the copies of the order sheet maintained by the learned Trial Court have also not been filed to show that the delay is attributable to the prosecution and not to

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the petitioner. Hence, the petitioner cannot be released on bail because of the delay.

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