Case Law Details
Dayanand Pandey Vs State of Himachal Pradesh (Himachal Pradesh High Court)
Himachal Pradesh High Court dismissed the bail application of the petitioner and stated that the case is not fit for exercising discretionary power under section 438 of Cr.P.C. in the matter of dealing with prohibited drugs.
Facts- Petitioner has approached this Court, invoking provisions of Section 438 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking anticipatory bail in case FIR No.314 of 2021, dated 24.08.2021, registered under Sections 21, 22 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Una, District Una, H.P.
In the status report, details in which co-accused Satnam Singh, on the basis of trustworthy information from a reliable informer, was arrested for his involvement in business of prohibited drugs and for recovery of 3600 tablets of Lomotil and 298 tablets of Alprax 0.5.
Conclusion- GST Number, Lease Deed of the shop are in the name of petitioner and Bank Account wherefrom numerous transactions have been made to the supplier of the medicines/drugs to various dealers of the medicines have been made, were/are in the name of petitioner and his involvement in the illegal business of supplying drugs is evident from these documents as well as his conduct and, therefore, he is also liable for recovery of commercial quantity of prohibited drugs in present case as he was performing active role in the business being run without licence and supply of prohibited drugs without bills.
Taking into consideration entire facts and circumstances, I do not consider it a fit case for exercising discretionary power under Section 438 Cr.P.C., to enlarge the petitioner on bail. Accordingly, petition is dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF HIMACHAL PRADESH HIGH COURT
Petitioner has approached this Court, invoking provisions of Section 438 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking anticipatory bail in case FIR No.314 of 2021, dated 24.08.2021, registered under Sections 21, 22 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Una, District Una, H.P.
2. Status report stands filed. Record has also been made available.
3. In the status report, details in which co-accused Satnam Singh, on the basis of trustworthy information from a reliable informer, was arrested for his involvement in business of 1 Whether reporters of the local papers may be allowed to see the judgment? prohibited drugs and for recovery of 3600 tablets of Lomotil and 298 tablets of Alprax 0.5, have been narrated in detail.
4. As per prosecution case, on disclosure of Satnam Singh regarding source of obtaining prohibitory drugs recovered from him, Deep Medicos at Delhi was raided where petitioner Parma Nand Pandey was found to be Incharge of the shop looking after the business. During raid 100 tablets of Lomotil and 375 tablets of Alprax were recovered from the shop, but petitioner could not produce any licence/permit or record to justify his entitlement to keep and sell these prohibited drugs recovered from his shop. Batch Number of recovered drugs i.e. 03L21029 of Lomotil and GDEB0002 of Alprax, was found same to the Bastch Number of tablets of drugs recovered from the house of main accused Satnam Singh. For recovery of aforesaid drugs from the shop being looked after by present petitioner, he was arrested and information in this regard was given to his younger brother Dayanand Pandey i.e. petitioner.
5. During interrogation, co-accused Parma Nand Pandey disclosed that licence and other records of Deep Medical Store were with the owner of the shop Virender Singh Tokas. Despite making efforts Virender Singh Tokas could not be traced on raiding his house and other places. On inquiry from Drug Controller of Karkar Duma Delhi on 7.9.2021 report was received through e-mail stating therein that as per record available on the official licence Portal of Department, no drug license was issued, retained or renewed to Mr. Deep Medicos at Shop No. 128-S-1 Mohammadpur near R.K. Puram New Delhi, however, as per record available on the Portal, mobile of one Virender Singh Tokas was available but no licence details were uploaded for processing of application for grant or renewal/retention of their licence. It has also come in knowledge that due to fire incident on 5.7.2019, records of the Department including file of the Firm (if any) in subject, has burnt and there is no information, other than uploaded, on the official website of the Department was available and therefore, genuineness of the licence of Deep Medicos could not be ascertained or verified.
6. As per prosecution case Virender Singh Tokas, owner of Deep Medicos could not be traced and, therefore, Non Bailable Warrants was obtained to ensure his production on 4.10.2021. On 10.10.2021, owner of shop Virender Singh Tokas attended the Police Station with copy of lease deed and other documents related to Deep Medicos claiming that shop was rented by him to petitioner-Dayanand Pandey and his brother Parmanand Pandey since year 2016 and licence of Deep Medicos dated 29.4.2007, was valid up to 28.4.2012 and GST registration of the Deep Medicos was in the name of petitioner-Dayanand Pandey since 1.7.2017 with the date of issue of the Registration Certificate dated 19.9.2017, and in this registration, petitioner-Dayanand Pandey was stated to be proprietor of the Shop.
7. It has been stated in the status report that on inquiry it was found that business of the Deep Medicos was being run by Parma Nand Pandey, and Virender Singh had rented out his shop to Dayanand Pandey, whereas Virender Singh is doing business of Property Dealer. It was concluded by the Investigating Agency, on the basis of photocopies produced by Virender Singh, that he was not involved in commission of any kind of offence and, therefore, Non Bailable Warrants issued against him was got cancelled on 22.10.2021.
8. As per status report Satnam Singh has disclosed that whenever he purchased prohibited drugs from Deep Medicos Delhi, the same was purchased from Parmanand Pandey. It has been further stated in the report that on verification of the documents in the office of Assistant Commissioner, Department of Drugs and Trade and Taxes Vyapar Bhawan IP Estate Delhi, it was found that GST number which was in the name of Dayanand Pandey is the same GST number which has been mentioned in the bills of three medicines, which were issued by Whole Seller to Deep Medicos for supply of drugs and further the documents i.e PAN Card of Dayanand Pandey is also in the record of the aforesaid Department.
9. Further on verification of supply of medicine with respect to bills invoices produced by Parma Nand Pandey in the Court, it was found that payment of all these drugs, to all above referred three Whole Sellers, was made from account bearing No. 071405500560 of Deep Medicos. On further inquiry, the aforesaid account number maintained in ICICI Bank was found in the name of petitioner-Dayanand Pandey which was opened on 19.10.2016 and in the account for KYC photocopies of PAN Card and Aadhar Card of Dayanand Pandey were filed.
10. Lastly, it is stated in the status report that as per available record till date, it appears that Parma Nand Pandey in connivance with his brother Dayanand Pandey (petitioner) was involved in illegal business of supplying prohibited drugs and transactions in this regard were being made from Bank Account of Dayanand Pandey further that despite making all out efforts, petitioner-Dayanand Pandey was not traceable, whereas for recovery of Lomotil and Alprax during raid in Deep Medicos, kept without record/ licence/permit was found in the possession of Parma Nand Pandey and he had been found involved in commission of offence under Section 21 and 22 of NDPS Act.
11. Parma Nand Pandey, after arrest was enlarged on bail by this Court vide order dated 12.07.2022 passed in Cr.M.P.(M) No.469 of 2022.
12. It is stated that petitioner-Dayanand Pandey was absconding and was not traceable despite issuance of Non Bailable Warrants and, therefore, proceedings under Sections 82 and 83 Cr.P.C. were undertaken against him and he was declared proclaimed offender.
13. It is also case of the petitioner that he was only helper in the shop till 2019 and he is neither owner of the shop nor licensee of the shop and, therefore, he is not liable for recovery of prohibited drugs from the shop concerned.
14. At the time of consideration of bail application of Parma Nand Pandey who is real brother of the petitioner, it was submitted that Parma Nand Pandey was neither owner of shop nor licensee of shop or tenant in the shop and, thus, he was not liable for recovery of any drugs recovered from the shop for which either Virender Singh Tokas or Dayanand Pandey (petitioner) may be held responsible. Now, in this petition, learned counsel for the petitioner has submitted that petitioner-Dayanand Pandey is neither owner of the shop nor he was tenant of the shop and, further that, GST Number was got issued in his name by Virender Singh and account was also opened in his name at the time of issuing GST Number. Further that, Lease Deed claimed to have been executed in favour of the petitioner by Virender Singh is dated 14.12.2022. Whereas, Stamp Paper thereof, was purchased on 20.12.2022.
15. With aforesaid submissions, it has been submitted that petitioner was not aware about his implication in the present case, and though his brother had informed him about his implication, but he thought that since he had opened his own medical shop and doing separate business, therefore, he would not be involved. Therefore, he did not contact the police or the Court in present case, which resulted into declaring him proclaimed offender vide order dated 01.11.2022.
16. Learned Additional Advocate General has submitted that GST Number, Lease Deed of the shop are in the name of petitioner and Bank Account wherefrom numerous transactions have been made to the supplier of the medicines/drugs to various dealers of the medicines have been made, were/are in the name of petitioner and his involvement in the illegal business of supplying drugs is evident from these documents as well as his conduct and, therefore, he is also liable for recovery of commercial quantity of prohibited drugs in present case as he was performing active role in the business being run without licence and supply of prohibited drugs without bills. Further that, Batch Number of the drugs recovered from the possession of Satnam Singh had matched with drugs recovered from the shop. Further that, in aforesaid circumstances custodial interrogation of the petitioner is necessary.
17. It has further been submitted by learned Additional Advocate General that it is highly unbelievable that despite involvement, arrest and release of the brother of the petitioner in present case, petitioner was not having knowledge about his involvement in present case, as since beginning involvement of petitioner Dayanand Pandey was alleged by co-accused Virender Singh and at the time of hearing of bail application filed by Parma Nand Pandey, status report was filed clearly mentioning therein that petitioner-Dayanand Pandey was also involved in present case.
18. Attention of the Court has also been invited to the submissions made by learned counsel appearing on behalf of Parma Nand Pandey in Cr.M.P.(M) No.469 of 2022, wherein it was argued that Parma Nand Pandey could not be made to suffer by incarcerating him without trial for the reason that his brother (Dayanand Pandey) was absconding. It has been further submitted that said submissions are clear pointer of the fact that brother of petitioner was well aware about the involvement of the petitioner and it is highly unbelievable that petitioner, who is real brother of Parma Nand Pandey, was not having any knowledge about his involvement.
19. It has further been contended by learned Additional Advocate General that petitioner has also approached Special Judge, Una, District Una, H.P., for enlarging him on bail by filing Bail Application No.229 of 2023, which was dismissed as withdrawn on 30.05.2022 by making submission that petitioner did not want to pursue that bail application. It has been contended that petitioner is silent about circumstances in which the said bail application was withdrawn, particularly by making submission that petitioner did not want to pursue the said bail application.
20. Taking into consideration entire facts and circumstances, I do not consider it a fit case for exercising discretionary power under Section 438 Cr.P.C., to enlarge the petitioner on bail. Accordingly, petition is dismissed.
Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
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