Sushil Chauhan vs State Of Himachal Pradesh
2021 Latest Caselaw 1363 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MPs(M) No. 349, 350 & 351 of2021 Decided on: 26th February, 2021

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1. Cr.MP(M) No. 349 of 2021:

Sushil Chauhan                                                                   ....Petitioner
                                             Versus





State of Himachal Pradesh                                                        ...Respondent

2. Cr.MP(M) No. 350 of 2021:

Himanshu Negi                                                                    ....Petitioner





                                             Versus
State of Himachal Pradesh                                                        ...Respondent

3. Cr.MP(M) No. 351 of 2021:     r
Sahil Negi                                                                       ....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(s): Mr. Rohit Sharma and Mr. Anuj Gupta, Advocate.

For the respondent/State: Mr. S.C. Sharma and Mr. P.K. Bhatti, Addl.

AGs, with ASI Ramesh Chand, I.O. Police Station Sadar, Solan, District Solan, H.P.

___________________________________________________________________________

Chander Bhusan Barowalia, Judge. (oral).

The present bail applications have been maintained by the

petitioners under Section 439 of the Code of Criminal Procedure seeking

their release in case FIR No. 26 of 2021, dated 11.02.2021, under Sections

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

21 and 29 of the ND&PS Act, registered in Police Station Sadar Solan,

District Solan, H.P.

2. As per the averments made in the petitions, the petitioners are

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innocent and have been falsely implicated in the present case. The

petitioners are permanent residents of Himachal Pradesh and neither in a

position to tamper with the prosecution evidence nor in a position to flee

from justice. No fruitful purpose will be served by keeping them behind the

bars for an unlimited period, so they be released on bail.

3. Police report stands filed. As per the prosecution story, on

11.02.2021, at about 08:00 p.m., when a police team was on routine patrol

duty near Tapan Hyundai, Shamlech, police spotted a vehicle (Mahindra

Bolero, having registration No. HP07A-0548), which was parked alongside

the national highway. When the police team looked into the vehicle, the

person sitting on the rear seat was sleeping. Thereafter, the driver of the

vehicle, on being inquired by the police, divulged his name as Sahil Negi

(one of the petitioners herein) and he abruptly started the vehicle due to

which the sleeping person woke up. Police inquired the names of other

persons, who divulged their names as Himanshu Negi and Sushil Chauhan

(other petitioners herein). As the police had suspicion of petitioners' having

some contraband, police associated two independent witnesses and

thereafter conducted search of the vehicle. During the search of the

vehicle, police recovered a box of cigarette, which contained a plastic pouch

having some substance, which was heroin. The recovered contraband, on

weighment, was found to be 7 grams. Thereafter, the police completed all

the codal formalities. The vehicle alongwith its documents and key was

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taken into possession and the petitioners were arrested. Police prepared

the spot map and recorded the statements of the witnesses. During the

course of interrogation, petitioners divulged that they purchased the

contraband from a person at Haryana, but they did not disclose the

whereabouts of that person. It has come in the investigation that

petitioner, Sushil procured the phone number of a person with whom he

had a word and thereafter a person delivered the contraband to him, but

petitioner Sushil divulged that he is not acquainted with that person. As

per the police, the investigation is in its initial stage and in case the

petitioners are enlarged on bail, they may tamper with the prosecution

evidence and may also flee from justice. Lastly, it is prayed that the bail

applications of the petitioners be dismissed, as the petitioners have

committed a serious crime. In case the petitioners are enlarged on bail, at

this stage, they may tamper with the prosecution evidence and may also

flee from justice, so the bail applications of the petitioners be dismissed.

4. I have heard the learned Counsel for the petitioners, learned

Additional Advocate General for the State and gone through the records,

including the police report, carefully.

5. The learned Counsel for the petitioners have argued that the

petitioners have been falsely implicated in the present case. He has further

argued that the petitioners are neither in a position to tamper with the

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prosecution evidence nor in a position to flee from justice, as they are

permanent residents of Himachal Pradesh. He has further argued that no

fruitful purpose will be served by keeping the petitioners behind the bars for

an unlimited period, especially when nothing remains to be recovered at

their instance, their custody is not at all required by the police and

considering the fact that the petitioners are drug addicts and not the drug

peddlers, so the petitions may be allowed and the petitioners may be

enlarged on bail. Conversely, the learned Additional Advocate General has

argued that the petitioners have committed a serious crime. He has further

argued that in case they are enlarged on bail, they may tamper with the

prosecution evidence and may also flee from justice, so it is prayed that the

bail applications of the petitioners may be dismissed.

6. In rebuttal the learned Counsel for the petitioners has argued

that the petitioners cannot be kept behind the bars for an unlimited period,

especially nothing remains to be recovered at their instance, their custody

is not at al required by the police, so the petitions be allowed and the

petitioners be enlarged on bail.

7. At this stage, considering the quantity of recovered contraband,

i.e., 7 grams, which is non-commercial quantity, considering the age of the

petitioners, who are in between 18 to 22 years, they are permanent

residents of Himachal Pradesh thus neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice, the fact that

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prima facie record does not reflect that the petitioners are drug peddlers,

rather it seems that they are drug addicts, who need proper counseling and

treatment to give-up narcotics, also considering the fact that nothing

remains to be recovered at the instance of the petitioners and their custody

is also not at all required by the police, the petitioners are ready and willing

to abide by the terms and conditions of bail, in case so granted and also the

fact that the petitioners cannot be kept behind the bars for an unlimited

period, so this Court finds that the present is a fit case where the judicial

discretion to admit the petitioners on bail is required to be exercised in their

favour. Accordingly, the petitions are allowed and it is ordered that the

petitioners, who have been arrested by the police in case FIR No. 26 of

2021, dated 11.02.2021, under Sections 21 and 29 of the ND&PS Act,

registered in Police Station Sadar Solan, District Solan, H.P., shall be

released on bail forthwith in this case, subject to their furnishing personal

bond in the sum of `25,000/- (rupees twenty five thousand) each with one

surety each in the like amount to the satisfaction of the learned Trial Court.

The bail is granted subject to the following conditions:

(i) That the petitioners will appear before the learned Trial Court/Police/authorities as and when required.

(ii) That the petitioners will not leave India without prior permission of the Court.

(iii) That the petitioners will not directly or indirectly make any inducement, threat or

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promise to any person acquainted with the

facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.

8. In view of the above, the petitions are disposed of.

Copy dasti.

                                           (Chander Bhusan Barowalia)
26th   February, 2021                                   Judge
       (virender)