Himachal Pradesh High Court
Naresh Kumar vs State Of Himachal Pradesh And ... on 10 February, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 276 of 2021
.
Decided on : 10.2.2021
Naresh Kumar .....Petitioner.
Versus
State of Himachal Pradesh and another ....Respondents.
Coram:
Ms. Jyotsna Rewal Dua, Vacation Judge.
Whether approved for reporting?1
For the Petitioner:
r to Mr. Varun Chandel, Advocate.
For the Respondents-State: Mr. Hemant Vaid, Additional
Advocate General.
(Through video conferencing).
Jyotsna Rewal Dua, J (oral)
The petitioner has been accused of possessing 58.5
grams of opium and 23 grams of cannabis in FIR No. 21/2021
dated 31.1.2021 registered under sections 18, 20, 25 of ND&PS
Act, 1985, section 336 of Indian Penal Code and sections 181,
184 and 196 of Motor Vehicles Act, at Police Station Sadar,
Bilsapur, District Bilaspur, Himachal Pradesh.
2. Heard learned counsel for the parties. The gist of
the prosecution case against the petitioner is that on 30.1.2021
Whether reporters of the local papers may be allowed to see the judgment?
...2...
at around 7.15 p.m. the police party while on routine
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patrolling duty near Swarghat noticed a Mahindra pickup No.
HP24D-0272 parked alongside the road. The person occupying
the driving seat of this vehicle was identified as the petitioner.
He seemingly appeared perplexed on noticing the police
patrolling party and dangerously drove away his vehicle. In
this process, he struck his vehicle against the private vehicle
used by the police patrolling party. Petitioner's vehicle was
chased by the police party. Petitioner after covering a distance
of about 600 meters, drove his vehicle to an Indian Oil petrol
pump at Padgal (Nauni) and stopped the vehicle there, He left
it unlocked and ran away from the spot taking advantage of
night cover. Despite best efforts made by the police team he
could not be traced in dark. The above conduct of the
petitioner had raised suspicion of the police party about
presence of some illegal substance in the vehicle. Accordingly,
some local residents were summoned on the spot and in their
presence at about 8.30 p.m., the unlocked vehicle was
inspected. During its search, one knotted handkerchief was
...3...
found lying on the floor of the vehicle behind its driver seat. It
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was found to be containing 58.5 grams of opium and 23 grams
of cannabis as measured on the electronic scale carried by the
police patrolling party. During the search, the procedure
prescribed in law was followed. The recovery of the contraband
led to the registration of the FIR.
3. Learned counsel for the petitioner submitted that
the recovery of the contraband has been planted on the
petitioner. At best, it was just a case of hit and run. The
petitioner has not committed the offences alleged against him
in the FIR. He is an innocent person. In past, he has also been
honored by the local police for his honesty. Learned counsel for
the petitioner further submits that the petitioner undertakes
to abide by all the conditions, which may be imposed upon him
in case the interim protection granted to him vide order dated
5.2.2021 is made absolute and that the petitioner will further
undertake not to tamper with the prosecution evidence or
influence the prosecution witnesses in any manner
whatsoever. Learned Additional Advocate General submits
...4...
that in case the Court is inclined to confirm the interim
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protection then the same be made subject to stringent
conditions.
4. Contraband allegedly recovered from the petitioner
weighs 23 grams of cannabis i.e small quantity notified under
the ND & PS Act and 58.5 grams of opium i.e commonly
known as intermediate quantity under the ND & PS Act.
Therefore, provisions of Section 37 of the ND & PS Act will not
be attracted. Looking into the mode and manner of the
commission of the alleged offences by the petitioner at this
stage it cannot be said that the petitioner was guilty of
possessing the contraband involved in the FIR. As per status
report, there are three FIRs previously registered against the
petitioner viz. FIR No. 319/07 dated 14.11.2007 under Sections
451, 325, 323, 504, 506,34 of IPC, in which the petitioner has
been acquitted vide judgment dated 26.11.2016, 2nd FIR No.
287/08 dated 20.08.08 under Sections 447, 323, 427,34 of IPC
which is pending consideration before the Court concerned and
3rd FIR No. 268/07 dated 27.09.07 under Sections 341, 323,
...5...
504, 34 of IPC which stands compromised and accordingly the
.
petitioner has been discharged by the competent Court on
14.1.2014. As of now, it is only FIR No. 287 of 2008 which is
pending against the petitioner. Status report also records that
pursuant to interim protection, the petitioner has joined the
investigation and is cooperating with the investigating agency.
There are no allegations in the status report that post
registration of the FIR, the petitioner has tried to influence
the prosecution witnesses or tempered prosecution evidence.
Petitioner is a local resident and his presence in the trial can
be ensured. No purpose will be served by putting the
petitioner behind the bars. Therefore, the instant petition is
allowed and the interim protection granted to the petitioner
vide order dated 5.2.2021 is made absolute subject to following
conditions:-
(i) The petitioner shall join and cooperate the
investigation of the case as and when called for by
the Investigating Officer in accordance with law.
(ii) The petitioner shall not temper with the
evidence or hamper the investigation in any
manner whatsoever.
...6...
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(iii) The petitioner will not leave India without
prior permission of the Court.
(iv) The petitioner shall not make any
inducement, threat or promise, directly or
indirectly, to the investigating officer or any person
acquainted with the facts of the case to dissuade
him/her from disclosing such facts to the Court or
any Police Officer.
(v) In case of launching of prosecution, petitioner
shall attend the trial on every hearing, unless
exempted in accordance with law.
(vi) The petitioner shall inform the Station House
Officer of the concerned police station about his
place of residence during bail and trial. Any change
in the same shall also be communicated within two
weeks thereafter. Petitioner shall furnish details of
his Aadhar card, telephone number, E-Mail, PAN
Card, Bank Account Number, if any.
(vii) It is made clear that in case the petitioner is
arraigned as an accused in future, in any FIR, more
particularly under the NDPS Act, then this bail is
liable to be cancelled. It is open for the
Investigating Agency to move appropriate
application in that regard.
In case of violation of any of the terms and
conditions of the bail, respondent-State shall be at liberty to
...7...
move appropriate application for cancellation of the bail. It is
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made clear that observations made above are only for the
purpose of adjudication of instant bail petition and shall not be
construed as an opinion on the merits of the matter. Learned
trial Court shall decide the matter without being influenced by
above observations.
With the aforesaid observations, the present
petition stands disposed of, so also the pending miscellaneous
applications, if any.
10th February, 2021 Jyotsna Rewal Dua
(priti) Vacation Judge.
