Gulshan Alias Goli vs State Of H.P
2021 Latest Caselaw 932 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 110 of 2021

.

Reserved on: 21.01.2021.

Date of Decision: 04.02.2021.

    Gulshan alias Goli                                          ...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. Malay Kaushal, 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.
        74    20.07.2020       Banjar,          District 20, 25 and 29
                               Kullu, H.P.               of NDPS Act.

    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 a petition under

Section 439 CrPC before the concerned Sessions Court.

However, vide order dated 09.09.2020, Ld. Special Judge-II,

Kullu, dismissed the petition for the reason that since it is case

of recovery of commercial quantity of contraband, the fetters

imposed section 37 of the NDPS Act would come into play as the

facts prima facie point that the petitioners have committed an

offence by consciously possessing the contraband and abetting

the same.

3. Though, the bail application is silent about criminal

history of the petitioner, but as per status report, the petitioner

has following criminal history:

a) FIR No.132, dated 10.8.2013, registered under Sections 22-61-85 of NDPS Act in police station Kharar, Punjab.

b) FIR No.108, dated 29.08.2019, registered under Section 20 of NDPS Act in Police Station Ladbharol.

4. Briefly, the allegations against the petitioner are that

on 20.07.2020, police officials of the aforesaid police station

were patrolling in private vehicle. At around 10.30 a.m., when

police party was present at Fagupul, then one car came from

Banjar side. Police officials signaled the car to stop and the

driver parked the same. On seeing the police, driver got

.

perplexed and when he was asked to show papers, he was

reluctant. On inquiry, driver revealed his name as Manjit Singh

(A-1). The person sitting on the adjacent front seat disclosed his

name as Ashwani Rana (A-2). There was a bag lying between

them and when the police inquired about its contents, then they

could not give satisfactory explanation. After that, police officials

joined independent witnesses and in their presence, the bag was

searched, which contained charas, which when weighed on

electronic scale, it measured 1.515 Kg. After that, the

investigator conducted procedural requirements of NDPS act

and Cr.P.C and arrested the accused. During interrogation, the

accused revealed involvement of the present bail petitioner,

Gulshan Kumar (A-3). He made them to talk to Jitender Singh

(A-4). Police obtained CDRs of phone calls of these four persons,

namely, Manjit Singh (A-1), Ashwani Rana (A-2), Gulshan

Kumar (A-3) and Jitender Singh (A-4). The laboratory opined

the contraband to be Charas. Based on these allegations, the

Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that the

petitioner 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 and

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

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

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

The police had obtained the call details and there are

frequent phone calls between the accused persons and as such,

they did not discharge the burden under Section 37 of the Act.

Another reason for dismissal is previous criminal history of

petitioner, Gulshan Kumar (A-3), who was involved in similar

case and bailed out by this Court in Cr.MP(M) No.1731 of 2019

on 20.09.2019. Despite being released on bail, he kept on doing

the business of charas, as such, he is not entitled to any bail.

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 in the

Counsel's brief and not on 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. to 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