Suresh vs State Of Himachal Pradesh
2021 Latest Caselaw 910 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.2128 of 2020 Reserved on:January 4, 2021.

.

Date of Decision: February 4, 2021.

Suresh

...Petitioner.

Versus

State of Himachal Pradesh

...Respondent.

Coram:

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

Whether approved for reporting?1 NO

For the petitioner: Mr. Manoj Pathak, Advocate.

For the respondent: Mr. Ram Lal Thakur, Assistant Advocate General, for the State.

                            THROUGH VIDEO CONFERENCE




        FIR No. Dated            Police Station                   Sections





        13    of 9.3.2016        Rajgarh, District       Sirmaur, 20, 29-61-85              of
        2016                     H.P.                             ND&PS Act





    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest, for possessing commercial

quantity of Charas, has come up before this Court under Section 439 of CrPC,

seeking regular bail.

2. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the

concerned Sessions Court. However, vide order dated 29.10.2020, learned Special

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

Judge-II, Sirmaur District at Nahan, H.P., dismissed the petition because the accused

is a habitual offender.

.

3. In Para 7 of the bail application, the petitioner declares having no criminal

history relating to the offences prescribing sentence of seven years and more, or

when on conviction, the sentence imposed was more than three years.

4. Briefly, the allegations against the petitioner are that on 9.3.2016, when the

Police officials of aforesaid Police Station were on patrolling duty and were present

at Giripul, they noticed one Maruti Car which was coming from Sanaura village and

leading towards Solan side. The Police officials signaled the driver to stop and

noticed that in the car three more persons were sitting. On inquiry, they revealed

their names as Dharam Singh, Ajay Kumar and Baljinder Singh. The Police searched

the vehicle and found that below the driver seat, there was a bag and the Police

inquired from the occupants that who owned that bag. On this, Baljinder Singh

stated to the Police that the said bag belonged to him. On opening the same, the

Police recovered a black coloured substance, which on the basis of smell and

experience was found to be Charas. On weighing the substance, it was found to be

1.978 Kilograms. After that, the Police Officials conducted the procedural

requirements under ND&PS Act and Cr.PC and arrested the accused. Thereafter, FIR

mentioned above was registered. The Forensic Science Laboratory tested the

substance as Charas. During investigation, the Police found that Suresh Kumar,

present bail petitioner, also drove the car from Chandigarh and was involved in the

transportation of the contraband. The Police also collected the call details of the

Mobile Phones of Baljinder Singh and Suresh Kumar. However, the said SIM was

not responding and it was switched off right from 10.3.2016 onwards. The Police

could not trace the other co-accused, Ajay Kumar and Dharam Singh and applied to

JMIC, Rajgarh under Section 82 Cr.PC for declaring them as Proclaimed Offenders.

.

5. Learned counsel for the petitioner contends that the petitioner is a first 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 and the 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.

REASONING:

7. The Status report reveals that the petitoner had filed an application for

anticipatory bail before this Court and vide order dated 17.10.2019, the same was

dismissed. Despite the dismissal of the bail application, the petitioner did not

surrender, but kept on evading the arrest. It was only on 28.2.2020 that the Police

arrested him, i.e. after a gap of more than 4 months. On inquiry about the fate of

accused Baljinder, learned Assistant Advocate General, has brought to the notice of

this Corut that the said Baljinder stands convicted by the Special Court. He has filed

an appeal against his conviction, which is registered as Cr. Appeal No.349 of 2018

and the same is pending adjudication before this Court.

8. Learned counsel for the petitioner has failed to satisfy this Court that how the

presence of bail petitioner would be secured once he is released on bail. As such, on

this ground, the petition is dismissed at this stage.

9. Learned 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 leanrd 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.

10. Counsel for the petitioner has also made several other arguments. Still, given

that 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.

11. 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.

12. 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 (ks).