While dismissing an application for pre-arrest bail in an FIR for offences under the NDPS Act, the Himachal Pradesh High Court in a realistic, robust, rational, remarkable and recent judgment titled Anil Kumar Vs State of HP in Cr.MP(M) No. 366 of 2023 and cited in 2023 LiveLaw (HP) 18 that was reserved on March 10, 2023 and then finally pronounced on March 17, 2023 has minced just no words to observe in simple, straightforward and strict language that the drug menace is a serious invasion in the social structure that needs to be curbed with heavy hands and for such purpose, police must have the proper access to the accused which may be by way of custodial interrogation in appropriate cases. It must be disclosed here that the observations to this effect were made by a Bench comprising of Hon’ble Mr Justice Satyen Vaidya while adjudicating upon the matter in which the police party had apprehended a car near the place called Barmana in District Bilaspur in Himachal Pradesh which was being plied without any registration number and 15.13 grams of chitta/heroin was recovered from the vehicle. It deserves noting that after perusing the available record, Hon’ble Mr Justice Satyen Vaidya noted that the investigating agency has been able to lay hands on some material, which prima facie establishes a link between the occupants of the car apprehended with chita/heroin and the petitioner. It must be noted that as the recoveries are yet to be effected from petitioner and in such view of the matter, the Bench held that it cannot be said that the custodial interrogation of petitioner would be unjustified in this case. The Bench concluded that in light of the above discussion, there is no merit in the petition and the same is rejected.
At the very outset, this learned, latest, laudable and landmark judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Satyen Vaidya of Himachal Pradesh High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner has approached this Court for grant of pre-arrest bail in case FIR No. 24 of 2023, dated 8.2.2023, registered at Police Station, Barmana, District Bilaspur, H.P. under Sections, 21, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act, (for short “the Act”).”
To put things in perspective, the Bench envisages in para 2 that, “Brief facts necessary for adjudication of the petition are that on 8.2.2023, police party apprehended a car near place Barmana in District Bilaspur, H.P., which was being plied without any registration number. Three persons namely Surender Kumar, Ravi Kumar and Shesh Ram were occupants of the car. On suspicion, the car was searched in presence of independent witness. 15.13 grams of chitta/heroin was recovered from the vehicle. Case was registered and all the three occupants were arrested.”
As it turned out, the Bench states in para 3 that, “During investigation, it was found by the Investigating Agency that the occupants of the car had procured the recovered contraband from the petitioner after paying him Rs. 40,000/-. Accordingly, petitioner was also named as a co-accused.”
On the one hand, the Bench states in para 4 that, “Petitioner has prayed for grant of pre-arrest bail on the ground that he is innocent and is not connected with the crime in question. It is submitted that petitioner is a law abiding person and has roots in society. As per petitioner, his implication in the present case is totally false. Petitioner is stated to be permanent resident of VPO Panjgai, Tehsil Sadar, District Bilaspur, H.P. He has undertaken to abide by all the terms and conditions, as may be imposed against him.”
On the contrary, the Bench then reveals in para 5 that, “On the other hand, the prayer for grant of pre-arrest bail to petitioner has been vehemently opposed on behalf of the respondent-State. It is submitted that the petitioner has a long standing criminal background. He has been involved in 38 criminal cases, including five cases under the NDPS Act. It is further submitted that the petitioner has no respect for law and whenever he is released on bail in one case, petitioner comes up with another offence. Learned Additional Advocate General has contended that the custodial interrogation of the petitioner is required as certain recoveries are to be effected from him and supply chain of contraband is to be unearthed.”
Needless to say, the Bench then enunciates in para 6 that, “I have heard learned counsel for the parties and have also gone through the record carefully.”
As we see, the Bench states in para 7 that, “The status report filed on behalf of the respondent-State reveals that the investigating agency has been able to lay hands on some material, which prima facie establishes a link between the occupants of the car apprehended with chita/ heroin and the petitioner. The CDRs and other data, indicate exchange of calls and location of petitioner and other co-accused at or around the same place, at the time when alleged offence was committed.”
To be sure, the Bench points out in para 8 that, “It has been submitted on behalf of the respondent-State that though, after being admitted to interim bail by this Court, petitioner has joined the investigation but neither has he handed over the SIM Card of his mobile to the police for analysis nor has disclosed the source of procurement of contraband by him.”
Most significantly, the Bench mandates in para 9 holding that, “The investigation is still going on. The drug menace has attained serious proportion. All the accused persons apprehended in the car are in the age group of 23 to 27 years. Even the adolescents have not been spared. Besides being a law and order problem, it has become a serious social issue. Such a serious invasion in the social structure needs to be curbed with heavy hands and for such purpose, police needs to have the proper access to the accused, may be by way of custodial interrogation in appropriate cases.”
Most forthrightly, the Bench then also hastens to add in para 10 elaborating on why the scales tilted against the petitioner specifying that, “As noticed above, there is prima-facie material on record to suggest some link between the petitioner and other co-accused. It is not the case of the petitioner that the other co-accused are his relatives or friends. Petitioner is aged about 44 years and there is age gap between him and other co-accused. The link needs to be probed. The recoveries are yet to be effected from petitioner. In such view of the matter, it cannot be said that the custodial interrogation of petitioner would be unjustified in this case. Petitioner is not the first offender. He has long list of cases in which he has been allegedly involved. Respondent has provided a list of 38 cases, in which petitioner has remained involved. The cases registered against the petitioner have been for serious offences like attempt to murder, rape and offences under the NDPS Act besides other.”
Adding more to it, the Bench then further states in para 11 that, “It has also been urged on behalf of the petitioner that the other co-accused have already been released on bail by learned Special Judge, Ghumarwin, District Bilaspur, H.P. on 9.3.2023. Noticeably, the other coaccused have been bailed out after completion of investigation qua them. They had been in custody since 8.2.2023. Petitioner has prayed for pre-arrest bail and he cannot seek parity with other co-accused, who have been granted regular bail after their custody of about one month.”
As a corollary, the Bench then forthrightly holds in para 12 that, “In light of above discussion, there is no merit in the petition and the same is rejected.”
Finally, the Bench then concludes by holding in para 13 that, “Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.”
On the whole, it must be said in all fairness that the Himachal Pradesh High Court has very rightly taken a very serious note of drug menace. It must also be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Satyen Vaidya of Himachal Pradesh High Court has so very rightly termed drug menace as a serious invasion into social structure which definitely cannot be just glossed over as it has the most deleterious impact on our society as a whole. Of course, what is even more worse is that even adolescents are not spared and their whole life goes for a toss because of this which cannot be taken for granted under any circumstances as it directly concerns the future of our youth who are the future of our country. This alone explains why the Himachal Pradesh High Court in this leading case has so very rightly turned down the plea of the petitioner for pre-arrest bail for the reasons as stated hereinabove.