Himachal Pradesh High Court
Between vs Unknown on 29 December, 2021
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NO. 1466 OF 2021
Between:-
AJMER SINGH
AGE 56 YEARS,
S/O SH. SURMUKH SINGH,
R/O VILLAGE BEHRAL,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMOUR, H.P.,
WHO IS IN JUDICIAL CUSTODY &
PRESENTLY LODGED AT CENTRAL
MODEL JAIL AT NAHAN, H.P.
r .....PETITIONER
(BY SH.RAHUL SINGH VERMA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY SH.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
CRIMINAL MISC. PETITION (MAIN) NO.1550 OF 2021
Between:-
BUDH RAM
SON OF SHRI CHUHAR RAM,
AGED ABOUT 41 YEARS,
RESIDENT OF VILLAGE SATWALA,
POST OFFICE BATA MANDI,
TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR,
HIMACHAL PRADESH,
PRESENTLY CONFINED IN MODEL JAIL
NAHAN, SIRMAUR, DISTRICT SIRMAUR,
H.P. (THROUGH HIS FIRST FRIEND.)
.....PETITIONER
(BY SH.KUSH SHARMA, ADVOCATE)
AND
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STATE OF HIMACHAL PRADESH
...RESPONDENT
(BY MR.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
.
CRIMINAL MISC. PETITION (MAIN) NO. 2134 OF 2021
Between:-
SH.AHSAAN
S/O SH. SHAHID, AGED ABOUT 30
YEARS, R/O VILLAGE DHARMAWALA,
TEHSIL VIKASNAGAR,
DISTT.DEHRADUN, UTTARAKHAND,
PRESENTLY AT MODEL CENTRAL JAIL,
NAHAN (H.P).
.....PETITIONER
(BY SH.TOPENDER KUMAR VERMA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY SH.ANIL JASWAL, ADDITIONAL
ADVOCATE GENERAL)
CRIMINAL MISC. PETITION (MAIN) NO. 2100 OF 2021
Between:-
CHAMAN LAL @ TINKU
S/O SH. SURAT RAM,
R/O WARD NO. 4, TARUWALA,
TEHSIL PAONTA SAHIB,
DISTT. SIRMOUR, H.P.
AGED 41 YEARS
.....PETITIONER
(BY SH.DEEPAK KAUSHAL,
ADVOCATE)
AND
STATE OF H.P.
.....RESPONDENT
(BY SH.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
(H.C. TEJINDER SINGH NO.05, I.O.
POLICE STATION PAONTA SAHIB,
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DISTRICT SIRMOUR, PRESENT
ALONGWITH RECORD.)
Whether approved for reporting? Yes
.
These petitions coming on for orders this day, the
Court passed the following:
ORDER
Petitioners have approached this Court, under
Section 439 Criminal Procedure Code (in short 'Cr.P.C.'), for
granting them bail in case FIR No. 21 of 2021 dated 11.02.2021,
registered under Sections 15, 29, 27-A of Narcotic Drugs and
Psychotropic Substances Act (hereinafter in short 'NDPS Act') in
Police Station Paonta Sahib, District Sirmaur (H.P.).
2. Status Report stands filed, wherein it is brought on
record that on 11.02.2021, at about 6 a.m., on the basis of
reliable information that from Truck No. HP-11-4991 moving
towards Banjara Basti huge poppy-straw can be recovered, the
said information was transmitted to Sub Divisional Police Officer
as provided under Section 42 (2) of NDPS Act and police party
had rushed towards Banjara Basti where aforesaid Truck was
found coming towards Satiwala Chowk main road. However, on
seeing the PCR van of police, person driving the Truck, after
parking it came out from driver side and had fled towards
Yamuna River by taking benefit of darkness and dense fog, and
despite taking help of torch and mobile light, he could not be
chased by police officials, and during checking of Truck, 8 plastic
bags were found in rear portion of Truck and on opening of one
bag, poppy-straw was found therein, which created suspicion
that other 7 plastic bags might have been containing poppy-
.
straw, whereupon house owners of houses, adjacent to the spot,
were asked to join search and seizure process, but, by citing
their difficulties, they refused to come on spot, whereupon
Panchayat Pardhan Anjana and Up-Pardhan Satnam Singh were
called on spot from their houses through PCR van and were
asked to join search and seizure process, but, they also refused
to join as independent witnesses by referring their own
restrictions. Thereafter, a Constable was sent to Toll Tax Barrier
Bahral in search of independent witness wherefrom Toll Tax
Barrier employee Arun Sharma agreed to become an
independent witness and thus, he was associated in search and
seizure process. Thereafter, 8 plastic bags were unloaded from
Truck and each bag was opened and checked, wherein poppy-
straw was found. On weighing with electronic scale available in
police vehicle, in total 200.278 Kg poppy-straw was found in
those bags. Thereafter, by sending a ruka, FIR was registered in
Police Station and recovered contraband was seized and taken in
possession by Investigating Officer. After that, SI Gian Singh
along with police officials had gone to Khaira valley of Yamuna
river in search of accused. In that valley also, he found 6 plastic
bags of poppy-straw and two spades and one belcha kept in pits
of sand under cover of bushes. In these bags, in total 150.500 Kg
poppy-straw was found, which was also taken in possession
along with belcha and spades.
3. During investigation, Truck owner Ajmer Singh
.
(petitioner) was interrogated, who had disclosed that on
10.2.2021 Parveen Kumar resident of Satiwala, who was his
neighbour, had approached him in the morning for his Truck to
shift the goods therein and he (Ajmer) had agreed for that and
in the evening Parveen and Subhash had come to his house and
asked him to bring the Truck near Reliance Petrol Pump,
Taruwala by saying that both of them would meet him there,
whereupon, Ajmer had driven his Truck from his house and
Parveen and Subhash had followed him in his (Ajmer's) Alto car
and thereafter, Parveen had telephonically informed Ajmer that
Mohammad Deen @ Kala and Chaman @ Tinku will meet him
before the petrol pump and asked him (Ajmer) to hand over the
key of Truck to them and accordingly he (Ajmer) had handed
over the key of Truck to Mohammad Deen and Chaman @ Tinku
and started coming back on foot towards Badripur and by that
time, Parveen and Subhash, who had brought his car, handed
over the car to him and thereafter he (Ajmer) went home.
4. It is stated in status report that since 12.02.2021,
police kept on searching Mohammad Deen @ Kala, Chaman @
Tinku, Subuash and Parveen in their homes, but, they had
absconded to avoid their arrest and thereafter, on 19.2.2021,
Mohammad Deen @ Kala and Budh Ram could be traced after
great difficulty and were associated in the investigation
alongwith Ajmer Singh and during interrogation, Mohammad
Deen had disclosed that poppy-straw was brought out of State in
another Truck with help of Parveen, Subhash and Chaman @
.
Tinku and thereafter, Mohammad Deen @ Kala, Ajmer Singh and
Budh Ram were arrested on 19.02.2021 and their police remand
was obtained on 20.02.2021.
5. As per status report, on 20.02.2021, Mohammad
Deen had made a disclosure statement under Section 27 of
Indian Evidence Act in the presence of independent witness
Gaurav Dhiman, Block Development Officer Paonta Sahib and ASI
Ram Lal and in pursuant thereto, 4 bags of poppy-straw were
recovered from Satiwala forest/Khudd wherein in total 101.530
Kg. poppy-straw was recovered.
6. The recovered contraband was sent for chemical
analysis to the State FSL Jundga and it has been reported by
State FSL that recovered material was poppy-straw.
7. As per status report, Budh Ram had used his Tractor
No. HP-17D-9357 for loading and unloading the poppy-straw
under instructions of Parveen Kumar petitioner and car of Ajmer
bearing No. HP-17E-9340 was used by Parveen Kumar and
Subhash and another car HP-17F-4020 was also used by
Mohammad Deen @ Kala and Mushatkeen to procure poppy-
straw from Jharkhand and to load in Truck No. HR-55A-4876
along with driver Deepak in the month of January, 2021 in the
bags of rice. All these vehicles except Truck No.HR-55L-4876,
were taken in possession by police. It is also stated that after
taking into possession of aforesaid Truck HR-55L-4876 by
Finance Company in Banaras, Mohammad Deen and Mushatkeen
had returned home, but, Truck driver Deepak had stayed there.
.
8. As per status report, for bringing poppy husk/straw,
Mohammad Deen @ Kala had contacted Ahsaan resident of
village Dharmawala in District Dehradun and had used Truck
No.HR-55L-4876 for consideration of `1,50,000/- and out of that,
`80,000/- were received by Ahsaan from Mohammad Deen and,
therefore, Ahsaan has also been arrested under Section 29 of
NDPS Act on 23.02.2021, who after remaining in police custody
for three days, has been sent to judicial custody since
26.02.2021.
9. As per prosecution case, co-accused Praveen Kumar
had denied acquaintance with arrested persons including Ajmer
with submission that he had not been keeping mobile phone
since last one year. Whereas, from CDR of mobile, it was found
that Ajmer Singh and Praveen Kumar in active contact with each
other and on 10.02.2021 also they talked with each other for
fourteen times, wherein six times Ajmer Singh called Praveen
Kumar and they were in regular contact with each other through
Whatsapp calls.
10. As per status report, Truck No.HR-55L-4876 was not
registered in the name of Ahsaan, but in the name of Ashu
Malhotra son of Sh.Dharam Pal Malhotra, resident of Ambala.
The said Ashu Malhotra had handed over the said Truck to
Paramjeet Singh son of Sh.Narender Singh, resident of Nahan, by
executing General Power of Attorney (GPA) in favour of
Paramjeet Singh. Paramjeet Singh vide agreement dated
28.12.2020 had sold this Truck to Ahsaan for a consideration of
.
`2,25,000/-. Out of which `1,60,000/- had been paid and balance
amount of `65,000/- was to be paid within two months thereafter
and as per agreement, Truck was with Ahsaan since 28.12.2020.
On the basis of GPA and agreement, produced by its driver
Deepak (co-accused) this Truck was found in possession and
under control of Ahsaan and Deepak as a driver was employed
by Ahsaan on the Truck and this Truck was provided by Ahsaan
to Mohammad Deen for transportation of poppy straw from
Jharkhand. However, this Truck was taken in possession by the
Finance Company at Banaras and thereafter poppy straw was
transported from Banaras to Selaqui in Truck No.HR-69A-9217.
11. As per status report, when possession of Truck
No.HP-55L-4876 was taken by Finance Company, then
Mohammad Deen @ Kala had contacted him and had asked him
to provide his Truck to bring rice from Varanasi to Ludhiana on
urgent basis as Mohammad Deen had expressed apprehension
that delay may spoil the rice whereupon Amzad Khan had
handed over his Truck to Deepak at Muradabad who brought the
rice in his Truck from Banaras to Selaqui. Statement of Amzad
has been recorded under Section 161 Cr.P.C.
12. It has further been stated in the status report that
from Selaqui to the spot where Truck was intercepted by the
police, poppy straw was transported in Truck No.HP-11-4991
owned and possession by Ajmer Singh. This Truck was taken to
Selaqui by driver Chaman Lal @ Tinku. When Chaman Lal was
going to Selaqui, one Surender Singh had also gone with him in
.
the Truck, but he did not return and during investigation, it has
been found that the said Surender Singh was not knowing about
purpose for which Chaman Lal was going to Selaqui and,
therefore, he has been associated in the investigation as a
witness and his statement under Section 164 Cr.P.C. has also
been recorded before learned Additional Chief Judicial
Magistrate, Paonta Sahib. It is further case of the police that at
Selaqui poppy straw from Truck No.HR69-A9217 was shifted to
Truck No.HP-11-4991 and brought to near bridge of Banjara
Basti, Satiwala and some bags of poppy straw were shifted to
Tractor No.HP-17D-9357 belonging to Budh Ram for hiding those
bags in the forest adjacent to Yamuna River and during that
process, Praveen Kumar had noticed light of some vehicle,
therefore, some bags of poppy straw were left in the Truck.
Whereas, bags loaded in the Tractor were taken to the forest and
thrown in the pits already prepared for hiding contraband that
and thereafter accused fled from the spot. As per police, accused
Subhash had identified those places wherefrom poppy straw was
recovered by the police after incepting the Truck.
13. It has also been contended on behalf of petitioners
that there is no direct or indirect evidence to implicate the
petitioners, who were having no link with Praveen Kumar and as
nothing has been recovered from the petitioners, therefore,
presumption of innocence is applicable, but not presumption of
guilt like persons from whom contraband is recovered. It has
further been stated that there is no bank statements or any
.
other abnormal transaction establishing or indicating
involvement of the petitioners in commission of offence.
14. Lastly, it has been stated that user of Truck or
Tractor for commission of offence is not sufficient to implicate
the petitioners. It has further been stated that petitioner Ajmer
Singh has handed over Truck innocently to the wrong persons.
On behalf of petitioner Budh Ram, it has been contended that in
the entire investigation and the evidence collected by the police,
there is no direct or concrete evidence about involvement of
petitioner Budh Ram in commission of offence except
observation of Investigating Officer that it was appearing to him
that Budh Ram was involved in transportation and hiding
contraband by using his Tractor.
15. It has been submitted by learned counsel for Ahsaan
that Ahsaan has no role in transportation of poppy straw in his
Truck from Jharkhand to Banaras or Satiwala as he is neither
owner of the Truck nor driver of the Truck and he was not having
any knowledge about transportation of poppy straw in the Truck
in question by Mohammad Deen. It has further been stated that
even if, police story is considered to be true then also, there is
nothing on record to depict that Ahsaan was knowing that
alongwith rice bags other accused persons have planned to
transport poppy straw and further that nothing has been
recovered from Ahsaan.
16. Learned counsel for petitioner-Chaman Lal @ Tinku
.
has submitted that Chaman Lal is simply a driver and acting
under the instructions of the owner of the Truck to bring some
bags from another Truck and he has no role in transportation of
the recovered contraband and further that nothing has been
recovered from Chaman Lal.
17. Undoubtedly, as pleaded by learned counsel for the
petitioner, bail is rule and jail is exception. But, at the same time,
this rule does not mean that in every case bail is to be granted in
all eventualities. The Supreme Court, in its various
pronouncements, as also referred by this Court in State of
Sandeep v. State of Himachal Pradesh, reported in 2019(1)
Shim.LC 263, has culled out various factors and parameters to be
taken into consideration at the time of deciding the bail
applications, which also include denial of bail based on those
factors and principles. The general rule 'bail but not jail' cannot
be used as a weapon to render the provisions, empowering the
Court to reject the bail, redundant and/or as a guiding factor to
enlarge an accused on bail, in every case. In cases under the
special enactment where provision of reverse onus is there,
parameters for deciding the bail application a little bit are
different than other cases.
18. It is also canvassed that for the purpose of recovery
of huge quantum of contraband, personal liberty of petitioners
guaranteed under Article 21 of Constitution of India cannot be
infringed.
19. It has been contended on behalf of the petitioners
.
that according to status report, police party had received reliable
secret information about transportation of the contraband and it
was the time between sunset and sunrise and, therefore, it was
mandatory for the police party to comply with provisions of
Section 42 of the NDPS Act, and according to the petitioners,
police was not authorized to intercept the Truck between sunset
and sunrise without recording grounds of belief to intercept
without authorization and grounds of belief have not been
written by the Investigating Officer in present case and,
therefore, for violation of mandatory provisions, entire
investigation vitiates entitling the petitioners for bail. To
substantiate this plea, reliance has been placed on the
pronouncement of Supreme Court in Roy V.D. vs. State of Kerala,
(2000) 8 SCC 590, wherein it has been held that where criminal
proceedings are initiated on the basis of illicit material collected
on search and arrest, which are per se illegal and vitiate trial
itself, the proceedings would amount to abuse of process of the
Court. Reliance has also been placed on pronouncement of
Supreme Court in Sarija Banu alias Janarthani alias Janani and
another vs. State through Inspector of Police, (2004) 12 SCC 266,
wherein it has been held that Section 42 of the NDPS Act is
mandatory and compliance or non-compliance thereof is a
relevant fact which should engage the attention of the Court
while considering bail application.
20. Learned counsel for the petitioners have also
.
referred pronouncements of the Supreme Court in Tofan Singh
vs. State of Tamil Nadu, 2021 (4) SCC 1; Sanjeev Chandra Agarwal
& Another vs. Union of India, Criminal Appeal No(s). 1273 of 2021;
Sujit Tiwari vs. State of Gujarat, Criminal Appeal No.1897 of 2019
(@Special Leave Petition (Criminal) No.3478 of 2019; Amit Singh
Moni vs. State of Himachal Pradesh, Criminal Appeal No.668 of
2020; and Tapan Das vs. Union of India, Petition for Special Leave
to Appeal (Crl.) No.5617 of 2021.
21. The petitioners have also placed reliance upon
pronouncements of judgments of the various High Courts in
Shivraj Urs vs. Union of India, Criminal Petition No.6322 of 2020
(Karnataka High Court); Shashikant Prabhu vs. Rahul Saini, 2020
SCCC online Bom 11226; Yousuf vs. State of Kerala, 2021 SCC
online Ker 851; Mohit Aggarwal vs. Narcotics Control Bureau,
Manu/DE/0488/2021 (Delhi High Court); and Chaitan Mali vs.
State of Odisha, 2021 SCC online Ori 564. It has further been
submitted that in Kaleem vs. Union of India, 2003 Crl.J 2685
(Allahabad High Court), bail was granted to the petitioner in a
case where recovery of 350 kilograms Ganja was involved.
22. Learned counsel for the petitioners have submitted
that petitioners have nothing to do with present case and they
are being implicated on the basis of suspicion only and on the
basis of alleged statements of co-accused, which cannot be
taken into consideration against them in view of aforesaid
pronouncements of the Supreme Court, particularly in Tofan
Singh's case (supra). Citing judgments referred supra grant of
.
bail for the petitioners has been advocated.
23. Learned Deputy Advocate General has submitted
that petitioners are members of a big racket involved in
supplying the narcotic drugs in the State and involvement of
Ajmer Singh is writ large as he has not only handed over the
Truck, but had taken Truck to the spot and handed over the key
to the co-accused persons. It has further been submitted that
involvement of Ajmer Singh is substantiated from the facts that
Truck was handed over to co-accused on 10.02.2021 and
thereafter, it was taken into possession by the police and Ajmer
Singh was associated in the investigation after 12.02.2021, but
till then, Ajmer Singh did not inquire about his Truck and did not
file any application for release of the Truck as he was knowing
well that for what purpose he had handed over the Truck to co-
accused. It has further been submitted by learned Deputy
Advocate General that it is an un-explained behave on the part
of Ajmer Singh that he has handed over the keys of Truck
without driver to the persons, without asking for the nature of
material to be loaded and unloaded in or of the Truck. It has
further been submitted that call details also strengthen the
prosecution case with respect to active involvement of Ajmer
Singh in commission of offence. It has also been submitted that
not only Truck of Ajmer but car was also used by co-accused
facilitating transportation of recovered contraband.
24. Learned Deputy Advocate General by referring the
.
material on record has submitted that so far as Ajmer Singh is
concerned, his active role in commission of offence stands
established for his conduct came into light during investigation
and also for his inaction for getting Truck released from the
police after its seizure. It has been submitted that had petitioner
Ajmer Singh been innocent, then first reaction on his part would
have been to take immediate steps to get his Truck released, but
in present case he remained silent for about three days and
opened his mouth only when he was subjected to interrogation
by the police. It has further been contended that it is not a case
where only on the basis of suspicion petitioner Ajmer Singh has
been implicated, but there is ample evidence, including call
detail records about involvement of petitioner Ajmer Singh in
commission of offence.
25. Learned Additional Advocate General has submitted
that petitioner Ahsaan had agreed to transport the contraband
for having heavy amount of consideration i.e. `1,50,000/- and
driver Deepak was engaged by him, who was acting under his
control and was in his regular contact. Further that when Truck
of Ahsaan was taken in possession by the Finance Company,
then load of the Truck was shifted to another Truck and at that
time also, Deepak remained with the material loaded in the
Truck and at the time of shifting also he was actively involved
and, therefore, there is more than sufficient evidence on record
to connect petitioner Ahsaan with commission of offence.
Therefore, recovery or no recovery of contraband from Ahsaan is
.
an immaterial fact.
26. Learned Additional Advocate General has further
submitted that petitioner Chaman Lal @ Tinku was also knowing
about transportation of contraband and he has actively
participated by taking Truck bearing No.HP-11-4991 to Selaqui
and not only in his presence but with his help the poppy straw
was shifted to the Truck of Ajmer Singh and Truck was brought to
Satiwala and near bridge of Banjara Basti some bags of poppy
straw were shifted to Tractor of Budh Ram and at that time,
police party intercepted the Truck and Chaman fled from the
spot. It has been contended that in case Chaman was innocent
or not knowing about transportation of contraband, then there
was no occasion or reason for him to flee from the spot.
Therefore, there is sufficient evidence on record to connect
Chaman Lal also with commission of offence as a member of
gang involved in commission of offence under the NDPS Act.
27. Learned Deputy Advocate General has further
submitted that involvement of Budh Ram, is also established on
account of disclosure of his role by co-accused for transporting
and hiding contraband by using his Tractor. It has been
contended that similarly for role of Ahsaan and Chaman Lal in
entire episode, their involvement in commission of offence is also
established and all of them are also active members of gang
involved in procuring, transporting and hiding the recovered
contraband and, therefore, prayer for rejection of their bail
applications has been made.
.
28. Learned Additional Advocate General has submitted
that in present case there is complete compliance of Section
42(2) of the NDPS Act, as immediately after receiving
information, same was reduced into writing by Assistant Sub
Inspector Gian Singh and was sent to Sub Divisional Police Officer
at 6.15 a.m. Referring information reduced into writing by
Assistant Sub Inspector, learned Additional Advocate General has
pointed out that in the said information, it has been clearly
stated that in case of delay in intercepting/raiding the Truck,
there is possibility of concealment of evidence or escape of
offender from the spot. Therefore, it has been contended that
the case law cited by and on behalf of the petitioners, on this
count, is not relevant, with respect to compliance of provisions of
Section 42 of the NDPS Act, in present case.
29. I have considered judgments referred on behalf of
the petitioners, submission made by both sides and have also
gone through the record.
30. Considering all facts and circumstances, including
quantum of contraband recovered from the petitioners in
commission of offence, period of detention, impact on the society
but without commenting on merits of the rival contention of
parties and taking note of all principles and factors relevant to be
considered at the time of deciding bail application with reference
to aforesaid facts and circumstances placed before me, and
submissions made by learned counsel for the petitioners as well
as learned Additional/Deputy Advocate Generals, I am of the
.
considered opinion that petitioners are not entitled for bail at this
Stage. Hence, petitions are dismissed and disposed of.
31. Observations made in these petitions hereinbefore,
shall not affect the merits of the case in any manner and are
strictly confined for the disposal of the bail application.
32. Petitions are disposed of in aforesaid terms.
(Vivek Singh Thakur),
r Judge.
December 29, 2021
(Purohit)
