Himachal Pradesh High Court
Decided On: 05.08.202 vs State Of Himachal Pradesh on 5 August, 2021
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 933 of 2021
Decided on: 05.08.2021
Sandeep Kumar @ Happy ....Petitioner
.
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Vijender Katoch, Advocate (through
video conferencing).
For the respondent/State: Mr. Arvind Sharma, Mr. P.K. Bhatti and
Mr. Bharat Bhushan, Additional
Advocates General, with Mr. Amit
Dhumal, Deputy Advocate General, and
Mr. Manoj Bagga, Assistant Advocate
r General.
ASI Sher Singh, Investigating Officer,
Police Station Damtal, District Kangra,
H.P.
______________________________________________________________________
Chander Bhusan Barowalia, Judge. (Oral)
The instant bail application has been maintained by the
petitioner under Section 438 of the Code of Criminal Procedure for
grant of bail, in the event of his arrest, in case FIR No. 21 of 2021,
dated 09.02.2021, under Section 21-61-85 of ND&PS Act, registered at
Police Station Damtal, District Kangra, H.P.
2. As per the petitioner, he is innocent and has been falsely
implicated in the present case. He is neither in a position to tamper
with the prosecution evidence nor in a position to flee from justice, so
he may be released on bail.
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
3. Police report stands filed. As per the prosecution, on
09.02.2021, a police team was on routine patrol duty and at about
03:50 p.m was present at place known as Toki Excise Barrier, where
.
the team got a secret tip-off that one Sandeep Kumar @ Happy
(petitioner herein), who is resident of Jalandhar and brother-in-law of
Rakesh Kumar (local resident), alongwith his family, coming to Channi
village from Mukerian and has narcotics. At about 4:20 p.m. a vehicle,
having registration No. HP97-4496, speedily crossed the barrier, so the
police started chasing it, however, the driver of the vehicle took a slew
towards Mukerian. The driver of the above vehicle drove to a tourist
lodge and after stopping the vehicle, he jumped over a wall and ran
away. Police found a girl sitting in the vehicle and pursuit for the
driver began, however, despite extensive efforts he could not nabbed.
On being inquired, the girl sitting in the vehicle divulged her name as
Bharti, resident of Haryana and she disclosed that the Sandeep Kumar
@ Happy (driver of the vehicle) is her friend. She further disclosed that
she had accompanied the petitioner from Jalandhar and they were
going to village Channi, but on seeing police the petitioner fled away.
Thereafter, in presence of the independent witnesses, the vehicle was
searched and a transparent envelop, stuffed with some brownish
substance, was recovered. The recovered substance was checked
through drug detection kit and found to be heroin, which weighed 53
grams. Thereafter, the police completed all the codal formalities.
Statements of the witnesses were recorded, spot map was prepared and
a case under the apt section of ND&PS Act was registered. Co-accused
Bharti was arrested and medically examined. The recovered
contraband, on being chemically tested, found to be sample of Diacetyl
.
morphine (heroin). During the course of investigation, it was
unearthed that co-accused Bharti has hand in glove with the petitioner
and she knew that contraband is being transported by the petitioner.
It has further come in the investigation earlier also co-accused Bharti
had association with the petitioner and they were dealing in drugs
together. As per the police, five more cases have been registered
against the accused and out of five cases four cases are under the
ND&PS Act. The petitioner is very clever person and he is habitual
offender and spreading the menace of drugs in the society. The
custody of the petitioner is required for ascertaining the real source of
the narcotics and for further investigation. Lastly, it is prayed that the
instant bail application may be dismissed, as the petitioner is resident
of Haryana, thus in a position to flee from justice or tamper with the
prosecution evidence, he is very clever person and a habitual offender,
as four more cases under the ND&PS Act have been registered against
him, so in case the petitioner, at this stage, is enlarged on bail, he may
jump over the bail. Moreover, his custody is required for ascertaining
the real source of the narcotics.
4. I have heard the learned Counsel for the petitioner, learned
Additional Advocate General for the State and gone through the
records, including the police report, carefully.
5. The learned counsel for the petitioner has argued that the
petitioner is innocent and he has been falsely implicated in the instant
case. He has further argued that the petitioner is neither in a position
.
to tamper with the prosecution evidence nor in a position to flee from
justice. He has further argued that the recovered quantity of
contraband is intermediate quantity. He has further argued that the
learned Trial court has already enlarged co-accused Bharti on bail, vide
order dated 16.03.2021, so the petitioner may also be enlarged on bail,
as nothing is to be recovered from the petitioner and the investigation
is almost complete.r He has prayed that the bail application be allowed
in the above backdrop.
6. At this stage, considering the manner in which the offence
is alleged to have been committed, the fact that the petitioner has
evaded his arrest and chosen to file five consecutive pre-arrest bail
applications, out of five, four were either dismissed by the learned Trial
Court/this Court or withdrawn by the petitioner, so the instant is the
fifth attempt to get bail, however, the fact remains that the police still
has to ascertain the real source of the contraband, also considering
the fact that the petitioner is a habitual offender and already booked in
four more ND&PS cases, the fact that the petitioner is resident of
Haryana, thus he is in a position to tamper with the prosecution
evidence or to flee from justice, considering the quantity of the
recovered contraband, the fact that custody of the petitioner is required
for crucial investigation, which is being carried-out by the police, the
fact that even if the co-accused has been enlarged on bail by the
learned Trial Court, the petitioner cannot fetch any benefit from the
same, as he initially evaded his arrest by fleeing from the spot of
.
occurrence, then by not joining the investigation and now he is trying
tooth and nail to get pre-arrest bail, either by filing successive bail
petitions or by evading his arrest, thus, considering his role in the
alleged offence, this Court finds that there cannot be parity amongst
the petitioner and the co-accused, who has been enlarged on bail by
the learned Trial Court. At the same point of time considering the
overall facets of the case and without elaborately discussing the same
at this stage, this Court finds that the present is not a fit case where
the judicial discretion to admit the petitioner on bail, in the event of his
arrest, in this case, is required to be exercised in his favour.
7. In view of what has been discussed hereinabove, the
instant petition deserves dismissal and is accordingly dismissed.
8. It goes without saying that the observations made
hereinabove are only confined for the adjudication of the instant case
and same shall have no bearing, whatsoever, on the merits of the main
case, which shall be adjudicated on its own merits.
( Chander Bhusan Barowalia )
5th August, 2021 Judge
(virender)
