Gulshan Kumar vs State Of H.P
2021 Latest Caselaw 850 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 24 of 2021 Reserved on: 22.01.2021.

.

Date of Decision: 04.02.2021.

    Gulshan Kumar                                               ...Petitioner





                              Versus

    State of H.P.                                             ...Respondent





    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1NO

For the petitioner: Mr. Rajesh Kumar Parmar, Advocate.

For the respondent: Mr. Narender Guleria, Mr. Vikas Rathore, Additional Advocates General with Mr. Bhupender

Thakur, Mr. Gaurav Sharma & Ms. Divya Sood, Deputy Advocates General, and Mr. Rajat

Chauhan, Law Officer.

THROUGH VIDEO CONFERENCE

FIR Dated Police Station Sections

No.

        23    21.02.2020       Banjar,          District 20, 25 and 29
                               Kullu, H.P.               of NDPS Act
                                                         and     section
                                                         201 of IPC

    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest has

come up before this Court under Section 439 CrPC, for

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

possessing commercial quantity of charas, has come up before

this Court under Section 439 of CrPC, seeking bail.

.

2. Earlier, the petitioner had filed Cr.PM(M) No.2005 of

2020 before this Court, but same was withdrawn by him with

liberty to file afresh.

3. Para-8 of the bail petition declares the petitioner

having no criminal history.

4.

Briefly, the allegations against the petitioner are that

on 21.02.2020, the police officials had laid Naka at Fagupul in

the jurisdiction of aforesaid police station. At about 5:15 a.m.,

a car came from Banjar side. The investigator signaled the same

to stop. The driver stopped the car five meters before the

barricades. There were two persons sitting in the car on the

front seats. When police signaled the driver to lower the

windowpane, then the person sitting on the front seat threw a

bag lying in between them to a person sitting on the back seat.

All the three persons became perplexed and this rose suspicion

in the mind of the investigator. On inquiry, the driver told his

name as Gulshan Kumar (A-2), the petitioner herein. The

person who was sitting on the front seat disclosed his name as

Manish Sharma (A-1) and the person sitting on the back seat

revealed his name as Sahil Vata (A-3). On opening the bag,

police recovered charas, which when weighed on electronic

scale, it measured 4.600Kg. After that, the investigator

.

conducted procedural requirements of NDPS act and Cr.P.C and

arrested the accused. During interrogation, police also arrested

Dev Raj (A-4) and Neel Chand alias Neelu (A-5). Based on these

allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that the

petitioner is a maiden offender and incarceration before the

proof of guilt would cause grave injustice to the petitioner and

family.

6. On the contrary, the State contends that the Police

have collected sufficient evidence against the bail petitioner as

well as co-accused. Another argument on behalf of the State is

that the crime is heinous; the accused is a risk to law-abiding

people; and bail might send a wrong message to society.

7. That the bag allegedly was lying in between the

petitioner and co-accused. The burden under Section 37 of the

Act is upon the petitioner to satisfy this Court, which he failed.

8. Ld. Counsel for the petitioner referred to certain

statements and memos from the police report, prepared under

section 173(2) CrPC, copies of which the accused had duly

received in compliance to S. 207 CrPC. However, the documents

which the Ld. Counsel referred were neither filed with the

petition, nor its copies supplied to the Court and the State.

.

Thus, the Court cannot base any finding on a document which

is in the Counsel's brief and not on the Court's file.

9. Counsel for the petitioner has also made several

other arguments. Still, as this Court is not inclined to grant

bail, on the reasons mentioned above, discussion of the same

will be an exercise in futility. Any detailed analysis of the

evidence may prejudice the case of the prosecution or the

accused.

10. Given above, in the facts and circumstances peculiar

to this case, at this stage, the petitioner fails to make out a case

for bail. The petition is dismissed with liberty to file a new bail

application.

11. Any observation made hereinabove is neither an

expression of opinion on the merits of the case, nor shall the

trial Court advert to these comments.

The petition is dismissed.

Anoop Chitkara, Vacation Judge.

February 4, 2021 R.Atal